Reasonably Certain Confusion: An Update on Recent Endangered Species Act Rulemakings, Policies and Court Opinions
On September 7, 2023, Paul Weiland led the discussion during “Reasonably Certain Confusion: An Update on Recent Endangered Species Act Rulemakings, Policies, and Court Opinions,” a webinar hosted by SWCA Environmental Consultants.
Decisions under the Endangered Species Act are made using science, but rarely does science provide clear answers. Where there is uncertainty, professional judgment can play an outsized role in decision-making. For example, the application of the “reasonably certain to occur standard” or the “precautionary principle” both involve professional judgment that can be the determinative factor in listing or critical habitat determinations or effects analyses and take estimates.
Absent Congressional direction, the U.S. Fish and Wildlife Service and National Marine Fisheries Service have developed and applied varied regulations, policies and informal practices together with the broad mandate to use the best available scientific information to make decisions. Recent agency rulemakings, policy announcements and court opinions provide insights into the direction the Services are headed in employing this suite of decision-making tools and the extent to which the judiciary may constrain the Services.
This webinar explored recent developments expected to influence decisions about listings, permitting and consultation, the D.C. District Court’s July opinion in Maine Lobstermen’s Association v. National Marine Fisheries Service and U.S. Fish and Wildlife Service rulemakings and policy on interagency cooperation and mitigation.