When the DOI wants to set aside lands for the ESA...they MUST consider the ECONOMIC impact... doi.gov/solicitor/opinions/M-37016.pdf Subject: The Secretarys Authority to Exclude Areas from a Critical Habitat Designation under Section 4(b)(2) of the Endangered Species Act Under the Endangered Species Act (ESA), 16 U.S.C. 5 153 1 et seq., the Secretary, when listing a species as threatened or endangered, must also designate any habitat of such species which is then considered to be critical habitat. Id.5 1533(a)(3)(A). Notwithstanding the fact that critical habitat is defined as habitat that is, or has features that are, essential to the conservation of the species, id.5 1532(5)(A), section 4(b)(2) of the ESA grants the Secretary authority to exclude from a designation any area where, in his judgment, the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat. Section 4(b)(2) states: The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned. Id.5 1533(b)(2). Not surprisingly, the Secretarys exercise of this exclusion authority is controversial and continues to spawn litigation thirty years after the authority was granted to him. The purpose of this memorandum is to explain the legal considerations that should guide the Secretarys exercise of his exclusion authority. Second, Congress explicitly required the Secretary, when making a designation, to do so only after taking into consideration the economic impact, and any other relevant impact of making the designation. Id. at 5 1 1 (7), 92 Stat. at 3766 (now codified at 16 U.S.C. 1533(b)(2)). As explained below, Congress wanted the Secretary to understand the costs on human activity of making a designation before he made a decision and thereby provide an opportunity to minimize potential future conflicts between species conservation and other relevant priorities at an early opportunity. Third, Congress authorized the Secretary to exclude an area from critical habitat upon a determination that the benefits of such exclusion outweighed the benefits of inclusion, unless the Secretary determined that such exclusion would result in extinction of the species. Id. Congress continued to recognize that listing must be based on biological factors, but wanted the Secretary to have the discretion and flexibility to consider relevant nonbiological factors, specifically including, but not limited to, economic factors, in deciding which areas to exclude from critical habitat. H.R. Rep. No. 95-1625, at 17 (1978); reprinted in 1978 U.S.C.C.A.N. 9467. Fourth, Congress imposed a deadline for designation, requiring it to take place concurrently with listing. Pub. L. 95-632, 5 11(1), 92 Stat. at 3764 (now codified at 16 U.S.C. 5 1533(a)(3)(A)). However, the amendments made this deadline applicable only to the maximum extent prudent, id., giving the Secretary the discretion to decide not to designate critical habitat concurrently with the listing when it would not be in the best interest of the species to do so. H.R. Rep. No. 95-1625, at 16. There is more in the full report at link above...
Posted on: Fri, 09 May 2014 22:20:28 +0000
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