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Laws

Developed by socially elected institutions (Congress)
Social standards, procedures, principles
Legislative development
- Must be approved by both houses of Congress and signed off by executive

Regulations

Enforce or implement or are related to laws
Executive development
- Developed by federal agencies
Enforced and modified in judicial

Executive Orders

Presidential (executive) directives
- Federal agencies are subject to
- Executive branch is subject to
- Executive branch must operate under directive
- Promulgated by executive branch without approval
Dictate how to implement or interpret law; do not create laws
Can be struck down by Congress or federal courts
- Can pass or monitor laws that codify or restrict executive orders
- Can be monitored under Constitutionality
Federally numbered and published, ordered by chronology in the Federal Register
Must specify basis on federal Constitution or federal law

Executive Memoranda

Force of law
Regulate a law
Not published in the Federal Register; sensitive
Do not need to specify basis on federal Constitution or federal law

Hierarchy of Federal Law

The U.S. Constitution
Federal Statutes (Laws)
- Federal regulations are based on federal law
- Tied with international treaties
  - Most recent is the tiebreaker
- All superior to state law
International treaties
- Tied with federal statutes
  - Most recent is the tiebreaker
Federal regulations
- Developed and adopted by federal departments and federal agencies
State constitutions, state laws
Local ordinances

State Constitutions

Basis for state law and legal procedures
Must abide by federal constitution; cannot contravene constitution
Separation of state and federal law, separation of pre-eminence

State Regulation

Cannot regulate federal agency activities with two exceptions:
1. State regulation of federal agencies for environmental regulations
  - Authorized by Congress
  - CA Regional Water Quality Boards and Clean Water Act Section 401
2. State jurisdiction with federal regulatory activity; if the activity is unconstitutional to the state’s constitution

Courts

Court decisions can modify law or modify implementation of law
Hierarchy:
1. U.S. Supreme Court
  - Congress can appeal law that is deemed “unconstitutional”
2. U.S. Court of Appeals
3. U.S. District Courts
4. U.S. Court of Claims
5. State Courts
  - State Supreme Court
  - State Appeals Court

Municipal Courts
- Superior Court

Supreme Court

9 justices
- 8 associate justices
- 1 chief justice of supreme court
Appeals from lower federal courts and state courts (federal nexus)
Life tenure unless:
- Resignation
- Retire
- Death
- Senior status
- Impeachment
  - never happened lolmao
Selective case petitions/hearings for “compelling reasons”
- Issues in conflict with the interpretation of federal law or constitutional provisions
- Correcting an egregious departure from standard/socially accepted course of proceedings (constitutional)
- Resolving a question of federal law of great importance or reviewing a decision from a lower court that conflicts with a previous decision made by the Supreme Court
~10,000 petitions per year; only 75-80 heard and 50-60 reviewed by paper

Circuit Court of Appeal

179 judges
- Lifetime appointment
13 districts
- DC Circuit
- Federal Circuit
- Largest: 9th circuit (29)
- Smallest: 1st (6)
3 judge panels; may be higher due to controversy, but generally 3
Most powerful and influential courts
- Legal precedents cover millions of people and have strong policy influence
- Hears more cases than Supreme Court; often final arbiter on federal cases

Federal District Court

Basic jurisdictional trial court

Lawmaking

Congress is the only entity that enacts law
- Federal Departments and Agencies regulate law and authority
Law is superior to regulations, executive orders, executive memoranda, and proclamations
- Executive proclamations: similar to executive orders, but are directed to entities and persons outside of government
  - EO aims at those inside government
Agencies can be granted broad authority to interpret U.S.C. and enforce statutes
- “Rulemaking” of detailed rules and regulations
- Rules and regulations are federally published via the federal register before becoming enforceable
  - Prior must receive public comments during the “rulemaking” process

Registers

(U.S.C.) U.S. Code: laws categorized by category/subject that are in effect when the code is published
U.S. Statutes-at-Large (U.S.S.): all laws and resolutions enacted during a session (2-years) of Congress
Code of Federal Regulations (CFR): All rules of federal departments and agencies

Branches

Legislative branch
- U.S. Senate
- U.S. House of Representative
- Library of Congress
- Congressional Budget Office
Executive branch
- Presidential office
- Nearly all federal agencies
Judicial branch
- Supreme Court
- Circuit Court of Appeal
- Federal District Court
  - Court of Claims

Federal Agencies

CEQ

Council on Environmental Quality
Executive
Full review of environmental laws and regulations
State of the nation documentation/review
Arbitrates agency disputes for environmental regulation

EPA

Environmental Protection Agency
Administrator gets cabinet rank often, but agency is not cabinet department
Enforces/implements environmental laws

DOI

Cabinet agency
Department of Interior
Jurisdiction over environmentally-related agencies
National parks service

DOA

Department of Agriculture
Cabinet agency
U.S. Forest Service
Soil Conservation Service
Agricultural and ecosystem soil agencies

DOC

Department of Commerce
Sub-agencies with environmental responsibilities
NOAA (National Oceanic Atmospheric Administration)
- NMFS (National Marine Fishery Service) / NOAAF
  - Anadromous species of fish
  - Ice-flows

DOE

Department of Energy
Cabinet-level
Federal Energy Regulatory Commission
Renewables, renewable energy sources

NRC

Nuclear Regulatory Commission
Independent, not parts of branches
Governing board appointed by presidency or bureaucratics

DOD

Department of Defense
Cabinet-level
More wild lands held in trust than any other federal agency
- what the actual fuck
U.S. Army Corps of Engineers
- Regulatory responsibilities enacted by the Clean Water Act and Rivers and Harbors Act; wetlands and waterways

National Environmental Policy Act (NEPA)

Instructs how and when federal projects should be reviewed for environmental impacts
- Enforced by private action: groups can sue companies that fail to perform sufficient review
Brief; ~6 pages in length
- Individual agencies must interpret and develop regulations
- Extensive coverage of agencies and activities
- All federal agencies must determine, disclose, and consider environmental impacts
  - Except Congress, federal judiciary, and Office of the President
  - Does not require particular decisions/actions made; “does not impose a substantive duty”
  - Essentially procedural, not substantive; establishes a process for consideration
  - Allows broad discretion regarding degree of substantive environmental protection deemed necessary by agencies
- Includes ecosystem factors and ecological relationship factors
Officially establishes:
1. U.S. environmental policy
2. Interdisciplinary framework for environmental planning for federal agencies
3. Action-forcing procedures; requirements to consider environmental impacts

Specific Purposes

Declare a national policy that encourages “productive and enjoyable harmony” between humans and environment
Promotes efforts to reduce impacts to environment and biosphere and improve human health and welfare
Enrich understanding of ecosystems, ecology, and important natural resources
Establishes CEQ

Developed six fundamental objectives:
1. Supplemental Legal Authority: Adds responsibility and power for protecting and integrating the environment as an authority of federal agencies
2. Procedural Reform: Requires federal agencies to consider future and interdisciplinary impacts of current decisions
3. Disclosure of Environmental Information: Requires equal regard of environmental concerns with technical, social, and economic concerns
4. Resolution of Environmental Problems: Requires looking for solutions to environmental problems through disclosure and evaluation of alternatives and mitigative efforts
5. Fostering Intergovernmental Coordination and Cooperation: Requires cooperation between federal agencies, non-federal governments, and tribal organizations
6. Enhancing Public Participation in Government Planning and Decision Making: Adds new, innovative ways for the public to be involved in federal activities and requires federal response to public comments
Section 101:
- Fulfill each generation’s responsibility as a “trustee of the environment”
- Assure safe, healthy, productive environment and preserve historical, cultural, natural aspects of national heritage
- Maximize beneficial uses of environment without high impact; enhance quality of renewable resources; balance population and resource use
Section 102:
- Environmental Impact Statements necessary for proposed legislation or major federal actions that “significantly affect the quality of the human environment”
- EIS must include impacts, any unavoidable adverse effects, alternative actions, the relationship between short-term use of human environment and long-term maintenance of productivity, and any irreversible uses of resources necessary

Usage

Process reduced to:
1. Determine if NEPA applies
2. Determine whether to prepare an EIS or an EA (Environmental Assessment, briefer) for review
3. Prepare document
4. Make a decision based on considerations in the EA/EIS

Documents/Processes Involved

EIS: Most rigorous and comprehensive document
- Must be prepared if there is a “federal action that significantly affects quality of human environment”
- Action is an agency proposal, agency inaction, or the proposal of legislation by a federal agency
- Federal action is an action potentially subject to federal responsibility, and it only affects the level of federal involvement in a larger private activity
- Significance is determined based on the agency acting; CE must be adopted to avoid usage of NEPA documentation
EA: Examination of impacts of an action that determines ultimately if an EIS is necessary
FONSI (Finding of No Significant Impact): Issued when an EA is completed
CE (Categorical Exclusion)
- Occurs if extraordinary circumstances are absent
ROD (Record of Decision): Written public record explaining why an agency takes a specific course of action

EIS

Lawsuits can be performed under Administrative Procedure Act if procedure was not complied; enforces use of EIS
EIS assures any environmentally informed decision making is ongoing
Procedural requirement rather than a substantive duty; utilized a dynamic that encourages process, public involvement, and considering multiple impacts and alternatives; practicable
Lead agency prepares EIS; joint lead agencies may be present, as well as independent consultants/contractors; federal official is responsible for guidance, oversight, and adequacy
Preceded by scoping
- DEIS: Draft EIS
- FEIS: Final EIS

EA

Contains description of environmental impacts, discussion of the need for the proposal and alternatives, listing of agencies and persons consulted, and explanation on why it may not have significant effect on environment
Around 15 pages generally

Effects

Opens and broadens decision-making; most projects are not halted
- First priority is to avoid proposing projects and programs that can cause unacceptable impacts
- Second priority: Mitigation measures are proposed to eliminate or greatly reduce impacts
Effects all federal agencies with discretionary authority
- One federal agency serves as “lead agency”
  - If multiple agencies are involved, lead agency is determined based on magnitude of an agency’s involvement, level of approval authority, level of expertise, duration of agency’s involvement, and sequence of involvement
- Implementations affect various stakeholders: Concerned Federal Agencies, State Agencies, Local Governments, Tribes and Nations, Third-party contractors, Special Interest groups, and “Interested Citizens”
- CEQ and EPA administer, oversee, and review NEPA at a national level

History and Involvement

Passed in Congress in 1969, signed 1/1/1970
1970-1990; poor acclimation and adjustment to NEPA
- 1998–2018: 500 drafts and final EISs filed each year
- Most documents filed by the DOA (Forest/Land Management); DOT (Roadways); Interior (Species/Habitat Protection); USACOE (CWA/RHA)
- Average 742 pages in 2006, 400 in 2019
Most copied U.S. Statute; ~100 countries have adopted EIS provisions (environmental impact assessment)
- Systematic, interdisciplinary approach with broad consultation and public review
- Also copied into State Environmental Policy Acts; some make laws substantive
U.S. Army Corps of Engineers: Past criticism → Highly adherent
U.S. DOE: Less adapted
CEQ: Supervisor and coordinator for NEPA
- January 2025 CEQ EOs
EIS typically completed within five years after Notice of Intent (68.4%)
- 24.1% completed within six to ten years
- Total 92.5% completed within ten years
High numbers of NEPA actions
- 158316/166718 = CE
- 7596 = EA
- 499 = EIS
Military and Homeland Security are exempted from NEPA
- Military regularly follows NEPA procedure/clearance
- DHS is not forthright with documentation; detention facilities

CEQ

CEQ is responsible for promulgating NEPA requirements, coordinating environmental policies, and publishing annual report on state of U.S. environment
Functions:
- Assists and advises President with annual report
- Analyzes conditions and trends in environmental quality
- Reviews and appraises federal compliance
- Develops and recommends national policies to promote environmental quality to President
- Documents and defines changes and trends
- Reports annually
- Makes recommendations with respect to environmental policies and legislation
Responsible for issuing regulation and guidance with NEPA compliance, resolving lead agency disputes, mediating interagency disputes, and training/advising federal agencies
Effectiveness and involvement is dependent/reliant on environmental policies of president

USEPA

More limited; responsible for implementation
Functions:
1. Reviewing Role: Reviews EIS in public review period and may refer to CEQ if it deems action is unsatisfactory from the view of public health, welfare, or environmental quality
2. Filing and Noticing Role: Lists EIS in Federal Register
3. Cooperating Agency Role: Participates in the lead agency’s NEPA process and cooperates with agency based on involvement of EPA regulatory programs (Clean Water Act implementation)

Recent History

Trump II Administration
- CEQ cannot release binding regulations regarding NEPA
- CEQ must release regulations that weaken NEPA
NEPA documents streamlined
- ~170 documents of highest analysis level (EIS) per year
- Technical data is now appendiced
Weakened in Trump I administration: promoted developmental interest and eliminated aspects of NEPA
Aspects returned by Biden administration through EO
Biden Administration signed Fiscal Responsibility Act of 2023 June 3 2023
- Caused reversion of some Trump administration implementations and new provisions
- Streamlined the environmental review process
  1. Codified existence of one federal lead agency
  2. Limited time and page length of EA and EIS (without appendices or extension by consultation of an applicant or court); 75pg/1yr for EA, 150pg/2yr for EIS
  3. Allowed FLA to designate project sponsors, including non-agency sponsors, who can prepare EA or EIS for the agency under their supervision
  4. Defined major federal action as “an action that the agency carrying out such action determines that is subject to substantial Federal control and responsibility”, and defines what are not major federal actions (not what are major federal actions; examples include general revenue-sharing funds with no federal oversight, loans provided by small business administration or non-federal agencies, judicial/administrative criminal enforcement actions)
  5. Validates programmatic NEPA documents (broad, high-level reviews) for five years barring any new circumstances or information that affect the impacts analyzed, and invalidates them unless reevaluated
  6. Allows usage of Categorical Exclusions across federal agencies if the agency is consulted, the public is informed, and the adoption is documented
  7. Modernizing NEPA via the use of a Permitting Portal Study (cloud-based portal; currently at study-level)
  8. Requires all agencies to analyze impacts based on the No-Action Alternative
Biden Administration also utilized CEQ Phase 1 and Phase 2 (2022, 2023) Revisions
- FRA wrote Phase 2 Revisions cannot overrule provisions in FRA
- Strengthens many provisions as long as situations do not conflict with FRA; FRA will take precedence over conflicting CEQ revision
Overall Biden changes make it more difficult to change NEPA via policy changes
- Would need to “starve” agencies of funding, staffing, etc.
- Would need to limit public input with NEPA processes, and limit judicial action

Types of Law

Three major types of law present
- Substantive Law: Determines rights and obligations of individuals, collective entities (social behavior)
- Procedural Law: Determines procedure to implement law
- Regulations: Incorporates both substantive and procedural law
Types of Environmental Law:
- Planning Laws: Instructs government to consider federal effects on environmental concerns; NEPA
- Regulatory Law: Instructs society based on what it can and cannot do; CWA, CAA
- Planning and Regulatory Law: Incorporates both federal impacts and regulation; FESA

CEQA

California Environmental Quality Act
- Similar to NEPA
- Biology, archaeology, infrastructure, air quality; interdisciplinary effects
- Political and litigative effects
  - Calochortus tiburonensis : Tiburon, Ring Mountain, Marin County
    - Discovered during CEQA review in 1971 in a high real estate value area
CEQA Planners; Consulting firms, private, city, county, state
Statute signed into law in 1970 by Reagan
- Same timeframe as NEPA
  - Modeled after NEPA draft in 1969; more substantive than NEPA
    - NEPA main document: EIS
    - CEQA main document: EIR
  - Originated from the Environmental Bill of Rights (1970) report by the California Select Committee on Environmental Quality
    - Changed from a constitutional amendment to a “self-executing” statute
- First of 18 Environmental Impact Assessment Laws enacted by state policy
  - WA, MT, SD, MN, WI, IN, NY, MA, CT, NJ, MD, NC, VA, GA, HI
- Prior to CEQA, only economic and technical aspects of projects were considered; CEQA considers environmental aspects/impacts in a list that has expanded over time
Goal: “develop and maintain a high-quality environment now and in the future”
- Disclose to decision makers and public the potential significant environmental effects of proposed activities
- Disclose to the public reasons for agency approval of projects with significant environmental effects
- Foster interagency coordination in project review
- Enhance public participation during the planning process of projects
- Substantive objectives
- Avoidance and mitigation of significant environmental effects
- Public discussion and addressing of public concerns
Three primary environmental documents for public disclosure of proposed projects, analysis, and potential environmental impacts
- Initial Study
  - Analysis of potential for environmental impacts based on various considerations
  - No impact → no further documentation necessary
- Negative Declaration
  - Possible impacts considered in the initial study
  - Further studies and analysis
  - Mitigated Negative Declaration: Lead agency studies project and effects and mitigates or eliminates impacts
  - “Neg-decs”
  - Goes through public review
- Environmental Impact Report
  - Unavoidable or still unknown possible impacts considered in the initial study and negative declaration, or direct consideration without use of prior documents
  - Detailed analysis on all required environmental areas (Air quality, aesthetics, zoning, water supply, etc.) and proposed mitigative measures
  - Mitigative monitoring reports included
Two primary environmental documents for primary disclosure of reasons for agency approval
- Mandatory Findings of Significance
  - A presentation of environmental impacts, data, evidence, and significance of impacts
- Statements of Overriding Consideration
  - Benefits and merits of project
  - Why the project should be approved despite significant environmental categorical damage
Interagency coordination is facilitated via:
- Early and frequent consultation; early review with stakeholders
- Scope/scoping meetings; project management
- Notice of Preparation: Declaration of analysis preparation
- State Clearing House Review
- Draft and final
Public participation is enhanced via:
- Scoping
- Public Notice Requirements
- Responses to public comments
- Legal enforcement procedures
- Citizen access to courts; ability to sue projects under CEQA
Public is designated as a “privileged position” in the CEQA process
- “Watchdog” individuals and groups
Various substantive requirements under CEQA
- Impacts discovered or mentioned in an EIR must be addressed by agencies
- Agencies must avoid or minimize environmental damage when feasible
- Agencies must prepare a Statement of Overriding Considerations if approving a project that has significant immitigable effects
- Agencies must review effects on environmental resources such as air, water, traffic, fish and wildlife, historical resources, environmental justice, climate change, etc.
CEQA applies to all discretionary activities proposed and carried out by California governments and public agencies
- Discretionary: Evaluated and approved to move forward
- Does not apply to private activities without discretionary governmental approval
- Various agencies involved
  - Any state, local, regional agency; any board, commission, or special destrict
  - Lead Agency carries out/approves a project, determines the scope of CEQA analysis and documentation necessary, and preparation of CEQA documents
  - Responsible Agency is an agency separate of the lead agency that has legal responsibility for carrying out/approving a project
  - Trustee Agency is an agency designated in a scoping that has jurisdiction over certain public resources but has no legal authority over carrying out/approving a project
    - CDFW, State Lands, Parks and Recreation, UC
CEQA Guidelines provide primary rules and source of interpretation for CEQA
- Yearly; Association of Environmental Professions
- Courts generally defer to CEQA Guidelines
Four directions based on CEQA Review
1. Exemptions
  - Statutory (Law) Exemption
    - Various examples
      - Feasibility and planning studies
      - Development of waste discharge requirements except certain new sources
      - Adoption of timberland preserve (production) zones
      - Adoption of coastal plans and programs
      - General plan time extensions
      - Financial assistance to low or moderate income housing
      - Ministerial projects with little or no discretion
      - Certain emergency projects (ex. those that involve public health and safety)
      - Specific prison projects
      - Early activities related to thermal power plants
      - Olympic Games
      - Establishing rates, tolls, fares, charges
      - Establishing family day care homes
      - Specific mass transit projects
      - Housing for agricultural employees
      - Lower-income housing projects
      - Air quality permits (except for physical or operational changes)
  - Categorical Exemption; Groups of projects not subject to CEQA
    - Does not apply if a project has a cumulative impact, significant impacts due to unusual circumstances, or adverse impacts to historical resources
    - Various classes involved
      - Class 1. Existing Facilities Exemption
      - Class 2. Replacement/Reconstruction of existing structures and facilities
      - Class 3. Construction of small structures
      - Class 7. Actions taken by regulatory agencies as authorized by state or local legalities to assure the maintenance, restoration, or enhancement of a natural resource
      - Class 8. Actions taken by regulatory agencies to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment
2. Initial Study
  - Environmental, guideline-based “Check List”
  - Determines levels of impacts and non-lead agencies involved
3. Negative Declaration/Mitigated Negative Declaration
  - Initial Study is attached with Neg-Dec
4. Environmental Impact Report
Results in
- Project Alternatives
  - Alternative ways to approach project goals, without bias towards the proposed project (“preferred alternatives”)
  - No need for equal analytical detail between alternatives
  - Aiding in project description
  - “No Project Alternative” analysis: An alternative of if the project did not occur
  - Existing baseline conditions and regulatory limits
- Mitigation Measures
  - Realistic and implementable measures; specific, measurable, and feasible
  - Must be adequate measures; measures requiring “consultation” or “further studies” alone may be invalid
  - Deferred mitigation is inadequate alone, but mitigation with partially deferred mitigation can be validated so long as the EIR specifies certain performance standards, including contingency plans for deferred mitigation plans
  - Mitigative measures incorporate into a project, but must be directly connected (nexus) to the impact they are ascribed to
- Mitigation Monitoring
  - Reporting and adaptive management
  - Added to CEQA in 1989 (AB 3180)
  - Mitigation does not necessarily need to be successful unless criteria denotes it in a mitigation monitoring program, but must be undertaken
  - Provides feedback to agencies on effectiveness of decisions and learning experience to improve future mitigation requirements
  - Identifies if enforcement action is necessary before irreversible environmental damage under the project occurs (Enforced by non-CEQA statutes)
Five categories of mitigation with various levels of preference
- Avoidance
- Minimization
- Rectification: Repairing, rehabilitating, restoring impacted environmental factors
- Reduction or Elimination of Impact: A dynamic mitigative factor preserving and performing maintenance on impacted environmental factors through the project’s lifetime
- Compensation: Substitute resources or environments
Significance thresholds: Quantitative and qualitative thresholds that determine if an impact is significant
- Not generally described in CEQA or CEQA guidelines, but must be clearly identified before an initial study
  - CEQA only defines a significant effect: “A substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance.”
- Usually extracted from confirmed projects with given standards or developed by local governments

Federal Endangered Species Act

Encompassing public lands in the U.S.
- 612MA; 27& of U.S., including Alaska
- 245MA in Bureau of Land Management
- 193MA in USFS
- 89MA in USFWS
- 85MA in NPS
- 27MA in DOD
1973; amended 1978, 1982, 1988
- Passed 390-12 + unanimous in senate; Feb. 8 1972 Nixon commentary
Purpose to conserve species and ecosystems
- Enforced via existing authorities and state level cooperation
- Administered by Secretary of Commerce (NMFS) and Secretary of Interior (USFWS)
  - NMFS Jurisdiction over cetaceans, most pinnipeds, oceans and anadromous fisheries
  - USFWS: Terrestrial species, freshwater fisheries, specific marine mammals (sea otters, polar bears, sirenians, and walrus)

Section 4

Listings require a petitioning process through the USFWS or NMFS
- 90 day limit to determine if listing valid
- 1 year for notice and comment; 30 day for final rule
- Considers threats to habitat, overutilization, inadequate protection, predation/disease, etc.
- Emergency listings are valid for 240 days
- Listings reviewed every 5 years
Critical Habitat designations limited by 1 year
- Recovery plans are prepared when listed
Issues with warranted but precluded listings and peer review usage for listing petitions
Threatened species listed under USFWS jurisdiction are provided full protection; species protections for those under NMFS must be specified
- 4d rule

Section 7

Interagency cooperation and consultation
All federal agencies’ actions must not jeopardize the continued existence of a listed species, destroy, or adversely modify its critical habitat
- Jeopardy: An appreciable reduction of survival and recovery of the species
Requires a “federal nexus”: consultation on all federal actions
- Informal consultation: Biological Assessment prepared based on a species list
  - Must request list from administration; must be provided in 30 days, and BA prepared within 180
  - Admins review for adequacy and confirm adverse effect determination in 30 days
  - Causes formal consultation process
- Formal consultation: Biological Opinion for listed species and Conference Opinion for species proposed for listing
  - Lasts 90 days and may have a 60+ day extension
  - Admins prepare BO/CO in 45 days
  - Includes jeopardy determination
    - If present: BO must include reasonable and prudent alternatives
    - If absent: BO may include measures ft. minor modifications, includes an “incidental take” statement
      - Allows the take of a listed species incidental to an otherwise lawful activity
    - Discretionary action

Section 9

Prohibition of import/exportation, taking, transporting, or selling fish and wildlife species listed as endangered
- Take is defined as any action or attempt to hunt, harm, harass, pursue, shoot, wound, capture, kill, trap, or collect fish and wildlife
- Harm includes significant habitat modification or degradation
- Harass includes any act or omission that creates the likelihood of injury to a species by annoying it to the point that normal behavior patterns are disrupted significantly
Section is discretionary for threatened species under section 4(d) if a rule is defined
Section does not apply to plants
- specific prohibitions for endangered plants on federal land
  - No importation or exportation
  - No removal or reduction to possession, malicious damage, or destruction
- specific prohibitions for endangered plants on non-federal land
  - No removal, cutting, digging up, damage, or destruction in a known violation of state law or in the process of criminal trespass

Section 10

Exceptions/incidental take permits for the ESA for non-federal parties
S. 10(a)(1)(A) Authorized Take Permits for scientific or enhancement purposes (survey work)
S. 10(a)(1)(B) Incidental Take Permits for non-federal non-jeopardy projects
- 1982 amendment
- Requires submission of a Habitat Conservation Plan (HCP) with impacts, mitigation, project alternatives, funding assurances
  - Includes non-ESA-listed species
- Must be judged by USFWS and use internal consultation/NEPA compliance
- No surprises clause addresses issues that might arise under an existing HCP
  - Assures private landowners that in unforeseen circumstances, the landowner is not required to commit additional resources or be encumbered by additional restrictions so long as all conditions are being met
  - Long-term participation in conservation planning

Safe Harbor Agreements

SHA
Voluntary agreements with non-federal property owners who contribute to recovery
If owners fulfill conditions, no additional requirements are placed on landowners
Enhancement of Survival Permit
After end of period, landowner may sunset and return to baseline conditions, but is no longer protected by assurances and may be subject to take violations
- Permit can also be revoked if conditions seem to harm species

Candidate Conservation Agreements

Candidate Species: Enough information for a species to consider listing, but are precluded by higher priority species; not protected by ESA
Proactive protection
CCAs may include species proposed, candidate species, at-risk species, etc.
CCAA (assurance) that if agreed upon conservation measures are implemented, non-federal entities will not be required to administer further measures or limitations
- Enhancement of Survival Permit if the species becomes listed

Historical Precedence

Lacey Act

Feathered hat trade
APHIS in USDA
Protects state’s native game animals, prohibits interstate and international transport of species taken illegally, and bans import of wildlife that could threaten agriculture and horticulture
1900; amended 1981 and 2008
- Amendments included timber, gun parts, musical instruments, walking sticks (plant related)
- 2020 enforcement included essential oils, trunks, cases, suitcases, general articles of wood, broader musical instrument definition
- Unlawful to make or submit false information of a plant
Penalties under the lacey act: 2009/2011 Gibson Guitar; 2012 4 constrictor snake species; 2015 Lumber Liquidators

Migratory Bird Treaty Act

1918
Forbids the take, import, possession, purchase, or sale of migratory birds
U.S., U.K., Canada, Mexico, Japan, Russia
Change in 2018 based on 2017 initiative declawed act: “Take of birds resulting… is not prohibited… when the underlying purpose of that activity is not to take birds”
- Oil spill companies; self-reporting
- Also would protect farm interests for pesticides
- September 29, 2021: Reversal of policy revisions under Biden; process was later shelved in December 2023

Endangered Species Preservation Act

1966
Protected species threatened by extinction in the U.S.
Allowed identification and research on threatened species
No enforcement on private lands

Endangered Species Conservation Act

1969
Recognized endangered species outside of the U.S.
Groundwork for international cooperation without enforcement

NEPA

1969; portions addressed listed species
Consideration of effects on federally listed species

Present Discussions

User accessibility/strength
Military/Homeland Security exemption based on “reasons of national security”
Transferring “best science” from DOI scientists to political appointees; debate of political policy and manipulation
Requiring decisions based on empirical data vs. ones that cannot use modeling, population surveys, taxonomy, genetic studies
Critical habitat designation
Special value areas for a species’ conservation identification
- Occupation
- Definition of special value
- Historical/future habitats
- Guidelines/habitat protection
Take compensation
Assault on scientific integrity
Global climate change
- Bush 2nd administration
  - greenhouse gas back-door
    - Drafted ban from assessing GHG emissions on projects and effects on ESA species
  - 2003: Internal approval of pesticides and projects to reduce wildfire risk, but overturned in court
  - Debated consultation with NMFS/USFWS, drafting with NOAA/USFWS
  - Major overhaul attempts without Congressional approval; lawsuits and later overturned via executive memorandum in Obama admin
Trump administration changes
- 25 species denied in first admin
- Favored resource extraction and economic factors for listing
  - Analysis of economic factors required for “transparency” only
- Funds diverted from ESA
- Prioritized corporate land development
- Sidestepping, limiting public ability to sue
- Remove protections for gray wolves
- Blocked court rulings
- Case-by-case definitions for listing and risks
Biden administration changes
- Moratorium on oil and gas leases in Arctic NWR
- Rejoined PCA
- Attempt to review and overturn >100 policies in last admin
- Removed need to assess effects related to climate change
- Marginalized communities excluded from decision-making
- NEPA limitations
- Recovering America’s Wildlife Act of 2022 excluded from Omnibus Spending Bill

Present Effects

1618 species protected; 1275 endangered 388 threatened
<1% all species gone extinct
10% candidate species extinct
30% listed species populations stabilized or increased; 54 species delisted as recovered
1.3b spent on specific species/land under the ESA
- 1.2b from federal spending, 58m from state
- ~4.03$ cost per american

Fish and Wildlife Coordination Act

Enacted in 1934: Protect fish and wildlife under federal actions that control or modify natural bodies of water by enforcing consideration of effects on fish and wildlife resources, mitigative measures, and developing/improving resources
- Actions include pollutant discharge and dam construction
- Originally passed due to conflicts between water-related projects and conservation; functions to coordinate water development and quality enhancement
- Written in broad and general language to allow continuing interpretation
- “Permissive law”: Non-binding substantive law
Amended in 1956 and 1964
Requires consulting with USFWS, NMFS, and state wildlife agencies when water is modified by a federal department or agency
Ensures “Equal Consideration” to other features of water resource development projects
- Resource agency discussions are non-binding, but must be strongly considered in decision-making
  - Broad interpretations of recommendations of resource agencies depending on federal agency involved
  - Substantive
Violation results in a misdemeanor
- Punishable by a fine, imprisonment up to one year, or both
- Allowable fines of $500; increased to $100,000 or $200,000 for individual/organization after Sentencing Reform Act
Two general exemptions for small developments
- Water impoundments (less than 10 acre surface area)
- Programs for land management and use carried out by federal agencies on their agency land

1946 Amendments

1968: Udall v. Federal Power Commission
NEPA was enacted 2 years after
NEPA proposed as amendment to FWCA but instead enacted as an independent directive

NEPA and FWCA

Current law: NEPA procedure complies with FWCA
Independent acts
Weakening of NEPA contends strength of FWCA, though both independent acts

California Species Protection

Largely 1909-2009 changes: Sea otters, CESA, NPPA, CEQA, Safe Harbor Act
- 1909: Non-game birds and nests
- 1913: Sea otters
- 1957: Fully protected birds and mammals, fish, amphibians, reptiles
  - Precludes ESA
- 1970: CSPA
  - Inventory all threatened fish and wildlife, develop criteria for rare and endangered status, report to the Governor and Legislature every two years on the status of these animals, including recommended measures for their protection and enhancement
- 1977: NPPA
- 1983: CEQA amendments: Specific definitions and protections for rare and endangered plants/animals
- 1984: CESA amendments: Plant inclusion, jeopardy
- 1997: CESA “Incidental Take” Permit (CDs)
- 2009: Safe Harbor Program
  - Voluntary land management to benefit listed species
2023 Change: Senate Bill 147
- July 10, 2023
- 37 species affected under a 10-year permitting process related to potential take
- Currently under evaluation for implementation and effects

California Endangered Species Act

CESA
Parallels FESA
- State agencies cannot cause jeopardy if reasonable and prudent alternatives to an action exist
- State policy: Protect and restore species/habitat
- Provisions for:
  - Listing and Delisting (2071-2079)
  - Prohibitions (2080)
    - Prohibits Commerce and Take; Import/Export, Sale and Take not included in NPPA
      - Take is defined as “Actively or attempting to hunt, pursue, catching, capture, or kill”; no harm or harass included
  - Take Authorizations (2080.1, 2081, 2086)
- Requires CEQA compliance; requires CEQA mitigation
- Federal government does not have to comply with CESA unless federal actions require adherence to state law
Administered by CDFW and FGC
Attorney General (Lungren, 1995) states state law does not prohibit indirect harm by way of habitat modification

Listing

Lists endangered and threatened native species:
- Endangered: Serious danger of extinction
  - Jan 2024: 55 Animals, 137 Plants listed
- Threatened: Not presently threatened by extinction, but is likely to become endangered in foreseeable future
  - Jan 2024: 43 Animals, 22 Plants
- Also candidate species: Under review for addition to either lists
- CESA implicitly excluded invertebrates until recent CA Appeals Court and CA Supreme Court decisions
- Additional 2024 listings:
  - Animals: 10 Candidates, 2 Delisted (Recovered), 2 Delisted (Extinct)
  - Plants: 64 Rare, 3 Candidates, 2 Delisted (Extinct)

Permits

Three Primary Types of Permits
Consistency Determination
- CD, 2080.1
- Applies if an applicant has a Federal Incidental Take Permit
Safe Harbor Agreement
- SHA 2089.2-26
- Authorizes incidental take so long as a net conservation benefit can be demonstrated
- Analogous to federal SHAs
  - A CD can be issued based on FSHA
Incidental Take Permit
- 2081
- Permits incidental take under the following criteria:
  - Take is incidental to otherwise lawful activities
  - Impact is mitigated proportional to take’s impact
  - Permit must be consistent with CDFW recovery plans (Currently all joint CESA/FESA, with none state-specific)
  - Must have assured funding for mitigation and monitoring (Bonds and escrow accounts)
  - Cannot jeopardize existence of species
- Special provisions are listed for agricultural activities on farms and ranches that encourage habitats for listed species
- “Accidental Take” is not prohibited
  - Accidental take must result from inadvertent or ordinary negligent acts during lawful agricultural activities
  - No knowledge is implied

California Native Plant Protection Act

NPPA
1997
Only protects endangered or rare native plants
- Endangered: Prospects for survival and reproduction are in immediate jeopardy
- Rare: Small numbers in range may cause it to become endangered
  - Rare plants are not protected under CESA and have no practical protection under NPPA; some protection provided by CEQA
    - CEQA defines rare, threatened, and endangered species and allows for protection of species not on official lists that meet CEQA definitions
    - CEQA also authorizes mandatory finding of significance for projects that reduce the number or range of rare and endangered plants and animals
Requires state agency consultation with CDFW
Administered by CFGC
NPPA exemptions incorporated under Attorney General opinion to CESA endangered and threatened plants; additionally, clauses that landowner does not need to notify under salvage provision if CDFW has not informed landowner of presence (CDFW cannot survey private land without permission)

Prohibitions

Importing rare and endangered plants into California
Take or possession of rare and endangered plants
Sale of rare and endangered plants

Exemptions

Emergency work necessary to protect one’s life or property
Agricultural operations, including clearing land
Fire control measures
Timber harvest operations
- Timber Harvest Plan and Forest Preservation Act
Mining assessments
- Pursuant to federal and state mining laws
Removal of endangered or rare plants from a canal, lateral ditch, building site, road, or other right-of-way
Removal of endangered or rare plants for the provision of public service by a public agency
Provides a salvage provision: Landowner must notify for land use changes at least 10 days prior, and CDFW must salvage before 10 days or landowner may proceed