Virtual Guest Speakers

April 11:

Professor Susan Smith, Willamette University College of Law
Topic: The Endangered Species Act Comes to the City

Biography
Lecture
Discussion List   (Professor Smith will participate from April 11-April 18)


Biography

Susan L. Smith is a Professor of Law at Willamette University College of Law in Salem, Oregon, where she specializes in environmental and natural resources law.  Professor Smith joined the Willamette faculty in 1989 after serving for several years as a trial attorney, senior trial attorney, and Assistant Chief of the Environmental Defense Section, Land and Natural Resources Division, U.S. Department of Justice.  Prior to joining the Justice Department, Professor Smith was a natural resources and environmental litigator with Holland & Hart, primarily representing mining and oil and gas clients.  Since she began teaching, Professor Smith has continued to represent clients such as environmental and community groups, the State of Oregon, and the U.S. Department of Energy on environmental and natural resource matters.

Professor Smith writes and lectures extensively on a variety of environmental and natural resources topics that deal with the role of coercion and collaboration in achieving sustainability, including the structure of law and legal institutions required for sustainable law, environmental criminal enforcement, collaborative natural resources management, governmental immunity, and reforming Fifth Amendment takings jurisprudence.

Professor Smith earned her J.D. from Harvard Law School in 1980, her Master in Public Policy from the J.F. Kennedy School of Government at Harvard University in 1980, and her B.A. from Reed College in 1976.  She is admitted to the Oregon, Colorado, and District of Columbia bars and is admitted to practice before numerous federal district courts, circuit courts of appeals and the U.S. Supreme Court.


Lecture

The Endangered Species Act Comes to the City

Susan L. Smith
Professor of Law
Willamette University College of Law
Salem, Oregon

April 9, 2001


I.  The Endangered Species Act Comes to the City

Until recently, the primary battlegrounds in the Pacific Northwest for fights to protect endangered and threatened species have been old growth National Forests populated with spotted owls and enormous federally owned hydropower dams that harness the mighty Columbia and devastate salmon, our regional icon.  But increasingly, in the Pacific Northwest and across the nation, the Endangered Species Act has left the country and headed to the city.

Or, the city has come to the Endangered Species Act.  Real estate development on the outskirts of existing urban / surburban / exurban areas (which I will sometimes call USE areas) is increasingly encroaching on once natural habitat of hundreds of species.  This “urban sprawl” has been accelerated in the last decade by a booming economy, population growth from both baby boom ripples and immigration, and transportation and other infrastructure improvements that enable Americans to avail themselves of the amenities of the city while living suburban or exurban lifestyles.  In addition, the lifestyles of residents of USE areas from watering chemically greened lawns to washing their  SUVs on Saturday morning contribute to the demise of salmon and other aquatic species that live in rivers and streams in and near the city.  And, the battles to protect endangered and threatened species have shifted from spotted owls, wolves, and grizzly bears to Delhi Sand-Loving Flies, salamanders, butterflies and songbirds.

This lecture offers some thoughts about what is happening as the Endangered Species Act comes to the city and what may happen to the Endangered Species Act as a result of these encounters.

II.  Ramifications of the ESA coming to the city: law, policy, and politics

A.  Legal Ramifications

The first question is what, if anything, changes when the Endangered Species Act is applied in USE areas rather than in a typical rural context where the dominant land uses are agriculture,  silvaculture, minerals extraction, and tourism.  Certainly  the ESA and its generic implementing regulations do not themselves change in the USE context.  However, the ESA intersects with different laws in the USE context and so the legal questions that arise  are quite different..

1.  Federalism questions raised by the dominant  federal role in formulating local and state species protection programs

More substantial federalism questions are likely to be raised in the urban context because in the rural context there is more direct federal control of affected land and actitities. Particularly in the West, there is a substantial difference in land ownership between application of the ESA in rural and USE contexts.  In rural situations, species protection efforts frequently involve largely federal lands such as National Forests or other public lands and federal agency actions such as timber contracts on National Forests, federal dam construction and operation, private dam construction and operation licensed by FERC,  resort developments  requiring special use permits on National Forests or other public lands, exploring and exploiting unpatented mining claims based on federally approved plans of operation, and exploration and development pursuant to federal oil and gas leases under federally approved operating plans.  Thus, in the rural context, the ESA interacts with other federal law controlling federal lands and federal agencies.   However, USE species protection efforts occur almost entirely on non-federal lands, primarily affecting real estate development interests and state and local governments rather than federal agencies.  Federal ESA regulation in USE context is applied to an realm traditionally dominated by local and state laws, particularly land use planning laws that govern real estate development.

To preserve state and local control in the land use planning realm that has traditionally been a matter of state perogative, state and local governments have sometimes taken the lead in formulating species protection restriction, even though they face the danger that the federal government will impose additional, conflicting species protection  requirements.  Other state and local officials, although reticient to engage in species protection, are compelled to do so by injunctions secured under section 9 or by the prospect of  section 9 takings liability.   Whether voluntarily or involuntarily, the bulk of responsibility for imposing and enforcing species protection restrictions in the USE context is likely to fall on state and local governments.  As  ESA requirements interact with, and are superimposed, on the administration of state and local laws,  interesting federalism questions arise.

Where the federal government or environmental interests attempt to force state and local governments to implement species protection requirements, questions will arise both in whether the ESA reaches regulatory action or inaction of state and local governments, whether Congressional powers under the Commerce Clause and Treaty Clause extend that far, and whether the 10th and 11th Amendments restrict the exercise of federal power in that manner.

Interpreting the ESA Taking Provision

State and local governments, and private development interests that attempt to interpret section 9 as not applying to state and local government regulatory actions or failures to regulate.  Thus far, federal circuit courts have been willing to interpret section 9 to apply to state and local government regulatory actions and failure to regulate.  For example in Strahan v. Coxe, the First Circuit held that state licensing of gillnet and lobster pot fishing without adequate protection of endangered northern right whales constituted a section 9 taking.  In Loggerhead Turtle v. Volusia County, the Eleventh Circuit decided that plaintiffs stated an ESA takings claim by alleging that the County’s inadequate regulation of beach lighting resulted in the taking of endangered sea turtles.  In United States v. Town of Plymouth, the court required officials to implement a court-ordered  beach management plan to protect piping plovers based on a claim that the town had inadequately regulated off road vehicle traffic on the town’s beaches.   This line of cases follows a well-established line of cases that make federal actions, whether regulatory or proprietary, subject to section 9 liability and cases that make state regulatory and proprietary actions subject to section 9 liability.  The difficulty is that imposing liability on a state for its failure to regulate raises grave questions under the 10th amendment and allowing private parties to sue the state for that failure to regulate raises substantial questions under the 11th amendment.

These constitutional questions are discussed in somewhat more detail below.  However, the U.S. Supreme Court in recent years has popularized another way to make federalism decisions without invoking the constitution, contorting construction of federal statutes to avoid reaching constitutional questions that might not muster a majority of the court in favor of state rights.  Thus, before the U.S. Supreme Court would reach the 10th and 11th Amendment issues, it most likely  would protect state and local governments from section 9 liability by construing  the ESA not to impose section 9 liability on state and local governments for regulatory action and inaction.

Challenging Federal Power to Protect Species

            State and local governments and development interests raise another federalism attack on the attempts of the federal government or environmental groups to force state and local governments to impose species protection restrictions.  They argue that Congress lacked power under the Commerce Clause to regulate because the loss of a given endangered or threatened species would not have a substantial impact on interstate commerce.  However, the courts have upheld the constitutionality of the ESA. and other federal wildlife protection laws  under the Commerce Clause.  However, the U.S. Supreme Court has indicated  that traditional regulation of an area by state and local government is a consideration in determining whether there is Congressional power to legislate under the Commerce Clause cases.    Notwithstanding the denial of certiorari in National Ass'n of Home Builders v. Babbitt, and Gibbs v. Babbitt, the U.S. Supreme Court may revisit the Commerce Clause issue in a USE context such as the Delhi Sands Flower-Loving Fly, particularly in light of the SWANCC decision.

Assuming that federal government and environmental attempts to impose section 9 liability on state and local government action and inaction in USE contexts survives the dual challenges of statutory construction and lack of enumerated congressional power, they may flounder because of the 10th and 11th amendment restrictions on exercise of congressional power.  While courts have upheld the application of the ESA against state and local governments, recent Supreme Court jurisprudence may suggest that there is trouble in paradise.

Tenth and Eleventh Amendment Restrictions on Federal Power

Tenth Amendment decisions by the U.S. Supreme Court in the last decade suggest that the lower court decisions may not survive a challenge in the higher court.  New York v. United States, and  Printz v. United States, raise a real question whether the ESA violates the Tenth Amendment if section 9 is construed to impose liability on state and local governments for failure to take regulatory action.

As with virtually all constitutional analysis, the key question  under the Tenth Amendment turns on the characterization of the ESA’s effect on state action:  is the state is simply being required to follow generally applicable law, which is acceptable, or  is the state being forced to regulate, which is not acceptable.  Some state actions that constitute section 9 takings may appear to be "failures to regulate" when they are actually decisions about how the state is going to manage state-owned resources.  For example, if the state allows state forests to be cut in a manner that endangers spotted owls, that is not so much a failure to regulate the companies harvesting the timber as it is failure to manage state property consistent with generally applicable federal law.  Similarly, if the state allows use of its water resources in a manner that endangers salmon, that is not a failure to regulate water users, it is a failure to manage state property consistent with generally applicable federal law.  Further, if the state allows any direct taking of endangered or threatened species, arguably that is a failure to manage state property consistent with generally applicable federal law because states have been deemed to "own" all wildlife within the state.  Under this reasoning, the "failure to adequately regulate fishing" case of Town of Portsmouth was correctly decided and even perhaps the "failure to adequately regulate activities affecting public beaches" case of Loggerhead Turtle.  This reasoning breaks down more readily, however, in the USE context. For example, it is improbable that section 9 liability could be imposed on state and local governments for failure to adequately regulate private land development and use.  This does not necessarily mean that the federal government will be unable to use the stick of section 9 liability in the USE context to effectively cut off development.  Real estate development requires transportation infrastructure and other infrastructure such as water and sewer.  If the state's construction of transportation and other infrastructure either directly takes endangered species or allows the taking of endangered species by private parties, section 9 liability probably could be imposed despite the Tenth Amendment because state action other than regulatory action was being controlled under generally applicable laws.

The federal government can take enforcement action against states and local governments for violating the ESA without encountering any Eleventh Amendment problems.  There is no doubt that the United States may sue a state in federal court under ESA § 13 for violating the ESA § 9 take prohibition.   However, there are practical obstacles to federal enforcement actions against the states.  The United States tends to be reluctant to sue states due to comity considerations and political consequences.  While the federal government may be more willing to sue counties and muncipalities, the Services have inadequate funding to pursue many enforcement actions.  Thus, the burden of enforcing the ESA § 9 take prohibition in the urban context is apt to fall upon citizens.

 The Eleventh Amendment may make it difficult to bring citizen suits to enforce the section 9 take prohibition against states.  Citizen suits against states and state officials under some circumstances are likely to be barred, leaving the burden of enforcement to the federal government.  Courts have upheld ESA citizen suits against local governments with respect to claims of sovereign immunity under 11th Amendment.  The Loggerhead Turtle  court found in the alternative that even if a county were an arm of the state for purposes of the Eleventh Amendment, the Eleventh Amendment does not bar certain actions in federal court against state officers for injunctive or declaratory  relief.

2.  Devices to avoid restrictions on federal power to control state and local governments

In administering the ESA, the federal government is beginning  to embrace a cooperative federalism model quite similar to pollution control laws such as the Clean Water Act (CWA)  and the Resource Conservation and Recovery Act (RCRA) in order to achieve more effective species protection.  The federal government is devolving responsibility for  recovery planning, imposition of species protection restrictions, permit issuance, compliance monitoring and enforcement to state and local authorities, subject to federal oversight and residual federal enforcement authority.

For example, in formulating the Pacific Northwest Salmon 4(d) Rule, 65 Fed. Reg. 42422 (July 10, 2000), the NMFS largely ceded responsibility for planning, regulations, permits, compliance monitoring and enforcement to state and local authorities, subject to NMFS approval and oversight.  The salmon 4(d) rule prohibits takings of all endangered and threatened salmon species in the Pacific Northwest.  It identifies a broad array of activities as potential takings, but indicates that if such activities are undertaken in compliance with certain NMFS certified state and local policies, programs, and laws, the activity will not constitute a taking.  By installing a stringent federal regulation that can be complied with by private parties observing approved state and local laws or policies, NMFS has seemingly created a device that both maximizes federal control and yet avoid constitutional restrictions on federal control of state and local governments

The West Coast salmon 4(d) rule applies the section 9 take prohibition to 14 evolutionarily significant units of salmon and steelhead, but includes limits the application of that take prohibition in 13 instances, including: (1) activities conducted in accord with ESA section 7 or 10 incidental take authorizations, (2) research activities, (3) emergency actions for injured, stranded or dead salmonids, (4) fishery management activities, (5) hatchery programs, (6) acitivites in compliance with certified joint tribal/state plans, (8) state, local and private habitat restoration activities, (9) properly screened water diversion devices, (10) routine road maintenance, (11) certain park management activities), and  (12) forest management activities on state and private lands within Washington.  The thirteenth limit, of greatest significance in the urban context, is the limit on the take prohibition for certain municipal, residential, commercial, and industrial (MRCI) development and redevelopment activities.

Under the MRCI limit (sometimes pronounced “mercy”), NMFS will review programs for governmental activities such as wastewater disposal or regulatory programs such as land use planning.  If approved, any activities carried out in compliance with the program is not liable for take of listed fish, even if a take occurs during the activity.  NMFS will consider 12 criteria in determining whether the program ensures that development activities complying with a program will conserve listed species:

  1. avoidance of inappropriate areas for development such as unstable slopes, wetlands, and areas with high habitat value
  2. avoidance of inappropriate areas for development such as unstable slopes, wetlands, and areas with high habitat values
  3. protect riparian areas to maintain properly functioning fish habitat
  4. avoid or minimize stream crossings
  5. protect historic stream meander patterns and channel migration zones
  6. protect welands, wetland buffers, and wetland functions
  7. preserve ability to pass peak flows
  8. native landscaping to reduce water and chemical use
  9. prevent erosion and sediment run-off during and after construction
  10. meet water supply demands without reducing minimum stream flows
  11. contain monitoring, enforcement, funding, reporting, and implementation mechanisms
  12. comply with all other state and federal environmental and natural resources laws and permits


This checklist in essence becomes the equivalent of minimum federal standards for state and local land use, water resources, and other planning programs that will be “voluntarily” administered by state and local authorities in order to provide development interests in their areas with sufficient certainty to encourage development.
 


3.  Enforcement questions that arise out of cooperative federalism

As species protection requirements are implemented through state and local regulations, certain questions arise concerning whether the ability of the federal government to take enforcement action where the state has either failed to enforce or has enforced, but the federal government is dissatisfied with the results of the enforcement action.  These questions parallel the overfiling and lead enforcement problems that arise under the pollution control statutes, particularly the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA).   The choice of law problems for the federal government in attempting to take federal enforcement action against those who have violated state and local species protection laws designed to implement the ESA may parallel the choice of law problems that have just begun to be explored in the pollution control context.

4.  Takings issues that arise out of cooperative federalism

Fifth Amendment takings or just compensation claims are another area where the legal questions are different in the urban context.  In the USE real estate development context, species protection much more frequently implicates possible 5th Amendment takings claims because those affected by the regulations more frequently have clearly protected property interest -- typically a fee simple.  This is quite unlike the circumstances of private parties seeking to develop resources on federal land  whether they are lands for resort development, timber, grazing or even mining.  Private parties operating on federal land naturally receive only those property rights that Congress has created, subject to any conditions on those rights that Congress has allowed federal agencies to impose.   In addition, to the extent that  federal ESA requirements are primarily implemented through state and local regulations, fingerpointing in the takings context becomes more likely to occur.  The federal government will defend takings claims by arguing that a state or local regulation actually imposes the species protection requirement.  State and local governments will defend takings claims by arguing that their actions were required by federal law.   This is already taking place to some extent.  For example, when the state of Oregon denied an NPDES permit because issuance would have violated  “no industrial wastewater discharge” restrictions the state had placed on rivers that provide the municipal wastewater regulations, the state defended a takings claim with respect to that denial in part on the basis that the federal anti-degradation policy contained in the Clean Water Act required the state restrictions.

B.  POLICY RAMIFICATIONS

First, we are confronting policy questions about the desirable roles local, state, and federal governments in determining conservation policy and undertaking conservation planning -- we confront a need to invent new forms of federalism to meet the challenge of ecologically sustainable development.  How can we integrate conservation policy and planning into local land use planning without making planning systems even more cumbersome, inefficient, and ineffective and how to aggregate those local planning decisions into a coherant program to protect biodiversity?  Because ultimately preservation of biodiversity requires both preservation of natural habitat and management of converted habitat consistent with the needs of other species, some form of integrated land use planning at the community, regional, national and international level is necessary.  That planning must span private and public lands.  It must span  unnatural boundaries such as city, county, state, and national lines.  Yet, land use planning has been traditionally left to local governments with at most limited state oversight and national land use planning has been rejected for many reasons -- some good reasons such as the need for detailed information and some bad reasons such as the political dominance of development interests at the local level..  Those who implement the ESA struggle with accomodating  both development and species protection within the patchwork of state and local control over land use by developing innovative approaches such as regional habitat conservation plans and  4(d) rules that honor state and local conservation efforts.  But eventually we must reconfront whether the appropriate places to make conservation policy, administer conservation regulations, provide conservation incentives, and undertake conservation efforts are at the local, state, or national levels.

Second, we are confronting the daunting prospect of regulating not a handful of large corporations, but  hundreds of millions of Americans.   Species protection efforts in the urban context will directly affect daily activities of vast numbers of people and entities rather than a few relatively large players, particularly in the context of species protection restrictions on the existing activities of USE residents.  This fact has a number of policy ramifications.  First,  formulating regulations is more complex because of the variety of activities to be regulated, which will further exaggerate reliance on state and local regulation. For example, the Pacific Northwest Salmon  4(d) rule encompasses fisheries management, hatcheries, routine road maintenance, pesticide use, municipal, residential, commercial and industrial development, and forest management.  Second, iIt will be far more difficult to design public participation strategies that assure representative participation  because of the number and diversity of interested parties.  It will be far more difficult to achieve any "buy-in" by affected parties because of the number and lack of organized representation of affected parties.  Third, as indicated above, It will be far more difficult to enforce species protection regulations against that many people.  Particularly with respect to restrictions on activities of existing USE residents, enforcement problems suggest a need for different regulatory strategies.  It may be necessary to use more incentive-based strategies  or to regulate at a higher level in the “food chain” of regulated parties.  For example, to effectively reduce use of pesticides in the USE context, we may restrict sale of pesticides for commercial and residential uses rather by regulating pesticide manufacturers rather than attempt to  limit use of pesticides by regulating individual commercial and residential users.  At present, this approach can only be used by the federal government, because state and local regulation of manufacturers is currently preempted by the Federal Insecticide Fungicide and Rodenticide Act.

C.  POLITICAL RAMIFICATIONS

Another question  is whether the ESA can survive its trip to the city.  One reason why the trip may endanger the continued existence of the ESA is the federal government cannot finesse economic impacts of ESA restrictions in the urban context by having federal lands and federal activities take the brunt of the economic impact of ESA restrictions.  Instead, the full economic impact of ESA restrictions must be borne by the  community.

Certainly the political ramifications of applying the ESA to existing USE residents are quite different than the typical rural natural resource  project.  First, USE residents are likely to experience a substantial shock when they are told that their behavior, not the behavior of the evil multinational mining or timber companies, is responsible for species loss.  This may reduce the tendency to demonize parties that are adversely affected by ESA species protection efforts.  Second, there are several reasons why USE residents may react better than regulated parties in the rural context: USE residents are not as ideologically opposed to government regulation, they are disorganized compared to multinational corporations involved in rural natural resources development, and the restrictions on USE residents are apt to be less central to their economic well-being.  Third, to the extent that USE residents become antagonistic to the ESA because of species protection restrictions, the ESA is in grave danger.  The economic and cultural impacts of species protection will be falling on urbanites who hold the balance of power in many states as compared with the far less numerous, and therefore somewhat less powerful, rural residents.

 The political ramifications of applying the ESA to USE real estate  development are more akin to applying the ESA to rural natural resource projects.  Applying the ESA to USE real estate development will strengthen opposition to the ESA, particularly because real estate developers are frequently ideologically opposed to government regulation, organized, and have a strong incentive to torpedo the ESA because restrictions on real estate development are central to their economic well-being.  On the other hand, real estate developers are easy to demonize and may provide a useful scapegoat to blame for the stringency of species protection restriction encountered by USE residents.  In addition, most USE residents are genuinely concerned about "urban sprawl", far more than they are concerned with the  wilderness impacts of mining or oil and gas development.  Urban sprawl directly and adversely impairs their quality of life, in terms of congestion, pollution, increased strain on limited public services, and loss of the "open space" amenities that made many suburban and exurban residents flee the city.

III.  Conclusion
 
As the ESA comes to the city, it is likely to foster an enormous amount of change – in federal relationships with respect to resources,  in the state and local land use planning mechanisms,  in USE real estate development, and in the behavior of everyday urban dwellers.  Done well and with sensitivity to the legitimate interests that are affected by species protection efforts, the federal species protection laws such as the ESA may survive the trip to the city and actually be strengthened by the challenges met.  However, there is grave danger in this opportunity.  If federal species protection efforts are not well-conceived and properly executed with sensitivity to legitimate local interests, the ESA may lose the support of urban dwellers upon which it depends for its continued existence.