In an August 1, 2016 letter to the Commodity Futures Trading Commission (CFTC) and the Environmental Protection Agency (EPA), the Renewable Fuels Association (RFA) called for an...04 August 2016
Dollars Do Count—In the Designation of Critical Habitat, At Least
Currently, the required economic impact analysis usually accompanies the final rule for designation of critical habitat. On February 28, 2012, however, President Obama directed that the regulations be revised to require contemporaneous release of draft scientific and economic analyses, prior to adoption of the final rule. To effect this change, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service recently released a proposed rule that addresses the timing of economic analyses for critical habitat designations. Comments on the proposed rule are due by October 23, 2012. The proposed rule also resolves a difference between two federal courts about whether to assess all effects of a proposed designation, including those ascribed to other factors, or only those incremental impacts that can be directly attributed to a designation of critical habitat. The proposed rule would adopt a preference for incremental analysis, which has been the agencies’ de facto rule since 2004.
The importance of timely economic and “benefits of exclusion” analyses are illustrated by the recent FWS decision to exclude privately-owned land in Garfield County, Colorado from designation as critical habitat for a listed plant, the Penstemon debilis. The Penstemon debilis, or Parachute beardtongue, exists nowhere else in the world but Garfield County. Initially, FWS had proposed to exclude some, but not all, of the privately-owned habitat, on which thrive three of four known populations of the plant. In response, the landowner proposed to revise an existing conservation agreement with Colorado Natural Areas Program (CNAP), providing protection for all critical habitat on its land, and obviating the need for a federal designation. FWS accepted this proposal, citing the success of the 25-year relationship between the landowner and CNAP, which actually predates the listing of Penstemon debilis. The revised agreement not only protects additional acreage, but also commits the landowner to adoption of voluntary best management practices on habitat that is proximate to its oil and gas wells.
In its final designation decision, FWS concluded that the benefits of exclusion of the habitat outweigh the benefits of designation, in part because the revised agreement with CNAP will afford a greater degree of protection than would otherwise occur, since threatened plants and their habitat on privately-owned land are not protected against “take” except in the case of a federal “nexus.” In addition, the analysis of economic impacts anticipated substantial losses of oil and gas revenue, even when measured by the “incremental impact” standard. Under these circumstances, FWS found, “(c)onservation cannot occur without cooperation from [the landowner].”
Western Governors’ Association Urges Expanded Role for States in Administration of the Endangered Species Act
At the conclusion of its annual meeting earlier this month, the Western Governors’ Association adopted a broad policy resolution (2016-08) with specific recommendations for reform of the...11 July 2016
On 13 April 2016, the European Commission published an interim report in its sector inquiry on electricity capacity mechanisms it had launched in April 2015, its first-ever sector inquiry...21 April 2016