Paul Weiland Interviewed Regarding ESA Rule Updates

09.2019
NPR

Paul Weiland, Chair of Nossaman’s Environment & Land Use Group, was interviewed on KJZZ radio (an NPR affiliate based in Phoenix ) regarding the announced Endangered Species Act (ESA) changes that are expected to go into effect in September 2019.  The modifications will be prospective and apply to new additions to the endangered species list, and many observers say the impact is most likely to be incremental.  Paul, a former trial attorney in the Law and Policy section, Environmental and Natural Resources Division of the Department of Justice, supports this position and spoke about his views on the topic as well as about the frustrations many landowners have experienced with the ESA.

In conversation with host Steve Goldstein, Paul stated that “the set of regulatory changes that have been proposed are more incremental than revolutionary.”  A prime example of this is the absence of economic considerations that go into listing a species as endangered. “  It was Congress that decided when you determine whether to list a species as endangered and protect it, it is forbidden for the relevant agencies to consider the economic consequences of their listing decision.  Only Congress can change that, and in the final proposed regulation the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) acknowledge that fact.  Unfortunately, some of the reporting on the new rules has suggested that they will be injecting economic considerations into the process.  Actually, what they have done is say they can report on the economic consequences of a listing decision, so that can be part of the disclosures made in their public documents when they decide to list a species, but they can’t consider it in deciding whether to list the species.  That distinction is pretty important even though it may seem pretty nuanced.”

Regarding landowner frustrations with the ESA, Paul noted that among federal laws, the ESA is often referred to as the “pitbull,” principally because the process has a built in provision that  ensures that “the process of deciding whether to protect a species explicitly cannot take into account societal or economic consequences, in contrast to many other federal environmental laws--such as the Clean Air Act or Clean Water Act--where costs and benefits are more evenly balanced.  This leads to circumstances where there is more friction between societal concerns and protection of species.”

For the full interview, click here.

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