Ecology Law Currents

FERC Relicensing and Its Continued Role in Improving Fish Passage at Pacific Northwest Dams

 Skylar Sumner*

This post is part of the Environmental Law Review Syndicate (ELRS). 

I. Introduction

The history of the American west is inextricably intertwined with damming rivers.[1] Whether for navigation, irrigation, or hydroelectric power, nearly every American river has been dammed.[2] In fact, stretching back to the day the Founding Fathers signed the Declaration of Independence, determined Americans have finished an average of one large-scale dam every day.[3] Currently, there are at least 76,000 dams in this country.[4]

While these dams have vastly contributed to America’s efforts to settle the west, they have come with significant costs. Although these dams’ harms are varied,[5] one of the primary concerns among advocates in the Pacific Northwest is the dramatic impacts dams have on species of anadromous fish, particularly salmonids.[6] In the Columbia River basin, dams block salmon and steelhead migration to more than 55% of historically available spawning grounds.[7] Since many anadromous fish species in the Pacific Northwest are listed as either threatened or endangered,[8] the Endangered Species Act[9] (ESA) can be a valuable tool to induce voluntary dam removals by requiring the Federal Energy Regulatory Commission (FERC) to include costly fish passage upgrades in any relicensing proceeding.[10]

Northwest salmon advocates rejoiced in 2014 when, following a lengthy campaign from a coalition of tribal and environmental activist groups,[11] construction crews completed the largest dam-removal project in American history by removing both the Elwha and the Glines Canyon Dams.[12] Removing these dams started the process of restoring seventy miles of the Elwha River to natural flows that had not existed since construction of the dams first began in 1911.[13] Since the dams came down, the river’s ecological quality has improved at an astonishing rate.[14] In fact, salmon and steelhead populations in the Elwha River have already reached thirty-year highs.[15]

The tremendous success of freeing the Elwha cannot be overstated, but the dams required decades of activist toil to remove.[16] In contrast, removing the Little Sandy and Marmot dams from the Sandy River in Oregon was accomplished in only eight years.[17] There are certainly many core differences between these campaigns that help explain this discrepancy, but chief among these is the fact that Federal Power Act[18] (FPA) amendments incentivized the owner of the Little Sandy and Marmot dams to privately fund the removal, while the Elwha removal languished waiting on federal funding for over a decade.[19]

This Essay will discuss the statutory changes to the FERC relicensing process that have worked to improve fish passage at hydropower facilities in recent decades and will continue to fuel upgrades and dam removals in the future. Part II lays out an overview of the environmental requirements of FERC relicensing and analyzes the Bull Run Hydropower Project as an example of a successful dam removal that was prompted as a result of its owner pursuing relicensing. Part III then reviews the relicensing schedule for several dams in Oregon and Washington to discuss how these fish passage improvements will continue occurring for the foreseeable future.

Repurposing Ecolabels: Consumer Pressure as a Tool to Abate Human Rights Violations in International Fisheries

Andrew Miller

Andrew Miller is the 2017-2018 Senior Articles Editor for Ecology Law Quarterly. This post is part of the Environmental Law Review Syndicate (ELRS). 

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Introduction

In March of 2015, the Associated Press (AP) published AP Investigation: Slaves May Have Caught the Fish You Bought.[1] It was the first in a series of articles the AP would publish over the next eighteen months detailing the squalor and oppression faced daily by thousands of Southeast Asian fishermen.[2] What caught readers’ attention, however, was not merely the unmasking of abuse.[3] It was the reference to Safeway.[4] It was the reference to Wal-Mart.[5] It was the reference to Fancy Feast.[6] It was the allegation that American consumers were complicit in the exploitation of foreign workers, and it was the knowledge that there were photographs to prove it.[7]

To date, the AP’s investigative team has helped free more than 2000 slaves in Southeast Asian fisheries, and has even uncovered similar abuse on American-flagged vessels.[8] Nevertheless, it is evident that the AP’s reporting has only scratched the surface of a deeply entrenched issue.[9] While it is difficult to quantify the scale of labor abuse in fisheries, scholars and agencies agree that fishing industry workers comprise a substantial portion of the 20.9 million people trapped in forced labor worldwide.[10]

Unfortunately, legal protections for fishery workers can be challenging to implement. Where regulatory protections exist, the burden is typically on a vessel’s flag state to administer and enforce those regulations.[11] Where a flag state cannot or will not enforce national or international law, the absence of ratified, binding legal frameworks frequently renders a port state’s authority to intervene murky.[12] As a result, flag and port state enforcement challenges have tremendous capacity to impede upstream control of the fishing industry and frustrate efforts to invoke legal protections for industry workers.

Where upstream control is ineffective, downstream consumer pressure may provide an alternative means of control. The underlying assumption is that rational, informed consumers will “vote with their wallets,” buying goods and services from responsible suppliers while severing the financial umbilical cord to noncompliant or irresponsible suppliers.[13] In theory, noncompliant suppliers must then either become compliant or perish in a competitive market. Therefore, demand-side programs that effectively correct information asymmetry—as ecolabel programs attempt to do—allow the market to influence producers’ actions without the need for states to implement or enforce command-and-control regulations.[14]

This paper will explore the potential for market tools to exert demand-side control on human rights and labor abuse in international fisheries. It will specifically examine methods to incentivize American seafood importers to better manage supply chains and de-select imports that are either untraceable or that may otherwise be linked to illegal, unreported, or unregulated (IUU) fishing. To that end, this paper will consider how demand-side tools—such as modified ecolabels—could influence how fisheries operate.

Part 1 of this paper will provide an overview of human rights abuse in the seafood industry. After discussing the role of slave labor in modern fisheries, Part 1 will examine the market penetration of slave-caught seafood in the United States and analyze the capacity of American markets to control how fish are caught. Recognizing that international fishing regulations are notoriously difficult to enforce, Part 2 of this paper will apply best practices of supply chain management and industry certification programs to the problem of labor abuse in fisheries. It will draw upon existing efforts to combat human rights and labor abuse in order to illustrate how an effective, integrated consumer-based program could be designed. The goal of this paper is not to advocate for any particular program design, but rather to demonstrate how consumer choice at home could influence how fisheries operate abroad.

It bears repeating that labor abuse in fisheries is a complex and multifaceted issue. At its worst, it may manifest as human trafficking, child labor, indentured servitude, or slavery.[15] In its simpler forms, it may involve the mistreatment of workers or the proliferation of hostile or threatening work environments.[16] It is important to recognize that no one solution will have the breadth or nuance to address every type of labor abuse; as such, this paper will not pretend to propose a catch-all solution.[17] Rather, this paper will explore the efficacy of one particular tool that could complement and buffer more nuanced solutions to individual types of abuse.

BioTransport: Moving Wildlife in Response to Climate Change

Stacy Shelton

Stacy Shelton is a Staff Editor for Vermont Journal of Environmental Law. This post is part of the Environmental Law Review Syndicate.

“If climate change continues unabated and as rapidly as a few models predict, saving at least some species will require solutions more radical than creating parks and shielding endangered species from bullets, bulldozers, and oil spills: It will require moving them.”[1]

Introduction

With millions of gallons of oil gushing into the Gulf of Mexico from a blown-out well in the summer of 2010, the U.S. Fish and Wildlife Service and its partners settled on a Hail Mary plan to save a generation of sea turtles: Translocation. Using specially outfitted FedEx trucks, federal and state biologists moved about 25,000 turtle eggs from Gulf of Mexico beaches to the Kennedy Space Center on Florida’s Atlantic Coast, away from the oil’s path. About half the eggs hatched, and the hatchlings were released into the Atlantic Ocean.[2] In their calculation, the biologists had weighed the risks of reduced hatchling success and interfering with their ability to imprint on natal beaches by moving the turtles against the probability the hatchlings would swim into the oil and certain death if they remained in place.[3]

Today, climate change has biologists working out similar but exponentially more complicated calculations in deciding whether to move species. Instead of simple translocation–which is the human-assisted movement of a species within its historic range[4]—biologists are considering whether the ecological disruptions due to rising temperatures will necessitate moving species outside their historic range as their native habitats become inhospitable. Such assisted movement has been termed “managed relocation,” defined by scientists as the intentional act of moving a species outside its historic range in response to climate change.[5] Similar terms for managed relocation are “assisted migration” and “assisted colonization.”[6] The focus of this paper is on managed relocation and the legal, scientific, and political issues it raises.

Is CITES Endangered?

Liz Rasheed

Liz Rasheed is a 3L at New York University, where she is Submissions Editor for Environmental Law Journal. This post is part of the Environmental Law Review Syndicate.

Introduction: What is Illicit Wildlife Trafficking?

Illicit wildlife trafficking refers to “any environment-related crime that involves the illegal trade, smuggling, poaching, capture or collection of endangered species, protected wildlife (including animals and plants that are subject to harvest quotas and regulated by permits), derivatives or products thereof.”[1] Many species are targeted by specific international markets, while some are targeted by a multiplicity of markets. For example, tigers are sold live as exotic pets, yet skinned for rugs, while their bones are sold for “medicinal” uses in Asia.[2] Many reptiles and amphibians are commonly targeted for the exotic pet trade, as are primates and tropical birds.[3] Still others are being driven to extinction due to their perception as “fine cuisine” in certain markets.[4] Most notably, illicit animal-derived goods, such as ivory carvings, animal-skin rugs, and taxidermy mountings are seen as status symbols in many parts of the world, and the existence of a market for “canned hunting” of endangered animals on private game reserves makes it increasingly easy for illicit trafficking syndicates to launder illegally poached hides under the façade of legal hunts.[5]

The growth of e-commerce in the global marketplace has made facilitation of illegal transactions increasingly efficient for would-be consumers while protecting their anonymity, and has thus made effective prosecution increasingly difficult. The International Fund for Animal Welfare found in a recent study that the number of online advertisements for CITES Appendix I-listed species in China alone had increased by 279 percent in the past six years, jumping from 544 advertisements identified in 2008 to 2,106 in 2014.[6] Furthermore, the widespread use of social media seems to have facilitated new means of contact between buyers and sellers.[7]

What is Reasonable?: The Consideration of Economic Effects in Reasonable and Prudent Alternatives Under the Endangered Species Act

Gillian Schroff

Gillian Schroff is a 3L at Lewis and Clark Law School, where he is Form & Style Editor for Environmental Law. This post is part of the Environmental Law Review Syndicate.

I. Introduction

Although only a few inches in size, the delta smelt (Hypomesus transpacificus) has become a topic of intense debate in water-scarce California. When the United States Fish and Wildlife Service (FWS or Service) determined that these small fish were a threatened species in 2005, the Service invoked the significant protections of § 7 of the Endangered Species Act (ESA)[1] and water agencies that managed the delta smelt’s habit were suddenly precluded from diverting water in ways that could negatively affect the fish.

The rivers that flow into the delta provide water to around two-thirds of Californians and large amounts of farmland.[2] FWS’s determination that the diversions would endanger the delta smelt and were therefore prohibited was criticized as “put[ting] fish above the needs of millions of Californians.”[3] When the cutback in water diversions began, farmers who had depended on the diversions were forced to institute alternative methods, including abandoning fertile land.[4] The problem was exacerbated by the fact that there was no other source of water in the region to irrigate the fields.[5] As of 2010, estimates suggested that there had been $2.2 billion in agricultural losses as a result of the decrease in water diversions. [6]

FWS proposed Reasonable and Prudent Alternatives (RPAs) that would allow the water diversions to continue, but even those required that the diversions to be limited to protect the delta smelt.[7] According to the plaintiffs, this alternative failed to resolve the water supply problems for farmers who had previously relied on water diversions from the agency.[8] As a result, various water agencies and farmers challenged the Service’s decision in the case San Luis and Delta-Mendota Water Authority v. Jewell.[9]

Because of conflicts like those at issue in San Luis, the ESA has been a source of contention, with environmental groups, private parties, and the courts debating the propriety of protecting endangered species at the expense of economic development. On one end of the spectrum, the Supreme Court held in Tennessee Valley Authority v. Hill (TVA)[10] that economic considerations are not relevant to Reasonable and Prudent Alternative (RPA) determinations.[11] Alternatively, the Fourth Circuit has held that economic considerations must be included in the analysis of RPAs.[12] In San Luis the Ninth Circuit adhered to the holding of TVA and held that the consideration of economic effects on private parties was inappropriate for an RPA analysis.[13]

Despite the complicated nature of the San Luis conflict and the significant economic effects that the FWS’s decision may have on farmers, the Ninth Circuit correctly determined that the economic effects on these private third parties did not need to be explicitly analyzed in the RPAs. The text of the ESA and the stated purpose of the ESA indicate that economics are not relevant to RPAs. In addition, RPAs do not restrict the options of agencies, but simply identify one way for the agency to proceed, despite the jeopardy determination, and the ESA already allows for the consideration of economics in the exemption provision. Finally, allowing for the consideration of economics in the creation of RPAs would impair the functioning of the ESA and would not clearly advance any goal that the private parties could hope to accomplish.

A Leading Cause of Everything: One Industry That Is Destroying Our Planet and Our Ability to Thrive on It

Christopher Hyner

Christopher Hyner is a 3L at Georgetown University Law Center, where he is a Managing Editor for the Georgetown Environmental Law Review. This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

Climate change. Ocean dead zones. Fisheries depletion. Species extinction. Deforestation. World hunger. Food safety. Heart disease. Obesity. Diabetes. The list goes on. There is one issue at the heart of all these global problems that is too often overlooked by private individuals and policy makers alike—our demand for and reliance on animal products. We can take a substantial step towards addressing all these problems simultaneously through reducing or eliminating our reliance on meat and dairy products. This begs the question — what are the United States’ major governmental environmental policy enforcers doing to address animal agriculture’s contribution to climate change, if anything? This piece briefly highlights two things: (1) animal agriculture is a leading cause of many major environmental problems we face globally and domestically—most importantly, climate change; and (2) animal agriculture is too often left out of the policy discussion.

First, the interconnectedness of animal agriculture and the environment.

A multitude of environmental problems our planet faces share a common instigator: animal agriculture and our reliance on meat and dairy products. According to the United States Department of Agriculture (USDA), global agriculture—dominated by livestock production and the grains grown to support it—accounts for 30% of greenhouse gas emissions.[1] A 2006 study by the United Nation’s Food and Agriculture Organization (FAO) finds that 18% of global greenhouse gas emissions is directly attributable to livestock production, which is more than the emissions attributable to the entire transportation sector.[2] Whichever number is relied upon, agricultural emissions are only going to increase as rising incomes and urbanization drive a global dietary transition towards increased consumption of meat and dairy products.[3] The growing demand for animal agriculture is expected to be a major contributor to a roughly 80% increase in global greenhouse gas emissions from the agricultural sector.[4] This means that animal agriculture must be a central element of our efforts to mitigate climate change.

In addition to being a major contributor to climate change, animal agriculture is also one of the leading causes of many other environmental issues, including overfishing, destruction of wildlife, deforestation, and depletion of freshwater resources to hydrate livestock or irrigate fodder. According the FAO approximately 75% of the world’s fisheries are either exploited or depleted[5] due to fishing, which will likely lead to the complete depletion of currently fished fish stocks by 2048.[6] As to wildlife, in order to protect the interests of primarily the livestock industry, the USDA and Bureau of Land Management sponsor programs to kill or entrap wildlife that threaten the industry’s bottom line.[7] This has led to the decimation of wolf populations in the Pacific Northwest[8] and the mass round up of wild horses in the Midwest, which compete with cattle and sheep to graze on public lands.[9] With regard to deforestation, the World Bank has found that animal agriculture is responsible for roughly 90% of the razing of the Brazilian Amazon.[10] Lastly, but likely most critically, animal agriculture is the number one consumer of fresh water by a significant margin. Animal agriculture consumes on average 55 trillion gallons of water annually—more than 520 times the water used in hydraulic fracturing.[11] On a micro level, it takes roughly 5,000 gallons of water to produce 1lb. of beef.[12]

Enhancing biodiversity on working agricultural lands through environmental mitigation and offsets: Opportunities in Australia and the United States

Matthew Roach*

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Australian agencies have extensive experience managing working agricultural lands to enhance biodiversity. State and Commonwealth agencies are increasingly using environmental offsets as a tool to manage the impacts of development. However, working agricultural lands are generally not considered a source of potential environmental offsets, as agencies prefer that land used for offsets be wholly set aside for environmental management purposes with limited or no agricultural activities. This contrasts with the United States, where efforts are underway to use working agricultural lands for mitigation purposes.

This paper proposes that working agricultural lands can be used for environmental offsets under Australia’s Environment Protection and Biodiversity Conservation Act of 1999 (EPBC Act). There are no significant legal barriers to this occurring, and the increased use of working agricultural land for offsets could generate four positive results, by: (1) achieving long-term environmental gains; (2) addressing the shortage of land available for environmental offsets in Australia; (3) providing land owners with additional income; and (4) improving collective expertise in sustainable agriculture.

Introduction

Australia’s degraded agricultural landscapes

Australia is one of twelve biologically mega-diverse nations, but has relatively high rates of extinction and a poor record of conserving biological diversity overall. [1] Over half of Australia’s land area is used for agricultural purposes,[2] and agriculture is commonly associated with increased mortality and loss of habitat for native species, as well as overall biodiversity decline.[3] Agriculture has led—through impacts like salinization and exotic plant invasion—to habitat fragmentation, reduced landscape heterogeneity, and in some cases, complete collapse of ecological processes.[4]

In addition, some ecological consequences of past land use and changes to agricultural processes have not yet fully played out. For example, populations of long-lived trees persist in agricultural areas, giving the impression of reasonable population sizes. However, tree populations are actually declining over time because agricultural practices prevent recruitment of new trees.[5] This affects not only tree species but understory and animals dependent on tree vegetation. Under a business-as-usual scenario, species already in decline are likely to be lost.[6]

Figures 1 and 2 show land use in Australia and illustrate that a significant extent of Australia’s overall land mass is used for agriculture.

Environmental offsets under the EPBC Act

Environmental offsets involve compensating for impacts on the environment or biodiversity at one location through conservation activities at a different site.[7] In some jurisdictions, including in the United States, environmental offsets are more commonly referred to as compensatory mitigation.[8]

Under the EPBC Act, offsets are used to generate benefits through compensatory activities that “offset” the residual impacts of development after all reasonable efforts have been made to reduce, avoid, and mitigate environmental impacts. Offsets are intended to achieve “no-net-loss” to the environment. Currently, the Commonwealth Department of Environment regularly imposes offset conditions on approvals under the EPBC Act and its offsets policy.[9]

Demand for offsets, and the potential for working agricultural lands

There is enormous demand for offsets but a limited supply of suitable land. In 2010, it was estimated that the global demand for offset lands was at least 86,000 hectares per year.[10] EPBC Act offset conditions generally require that land be permanently reserved for conservation purposes and not be used for agriculture on an economic scale. This has been described as a “conservation estate” approach to offsets. Typically, approvals will permit agricultural uses of land only for fire, weed, or pest management purposes.[11] The exclusion of such a large proportion of Australia’s land area as a potential source of offsets has contributed to a shortage of land available to satisfy EPBC Act offset conditions.[12]

The use of private land and the participation of landowners are critical parts of any effort to reduce biodiversity decline. Privately managed land is an important source of biological diversity.[13] Across Australia, approximately 60 percent of land is managed by farmers or graziers.[14] Moreover, 29 percent of native vegetation and 30 percent of Victoria’s threatened species populations rely on private land.[15]

Not using working agricultural lands for offsets also increases pressure to convert agricultural land to the conservation estate, reducing the viability of Australian agriculture.[16] Numerous studies have shown that working agricultural lands can be managed for environmental purposes in a way that improves ecosystem services and prevents biodiversity decline.[17] The biodiversity value of agricultural land is particularly notable when compared to land uses that typically generate requirements for offsets, such as urban development or mining.[18]

Agricultural producers often have choices available between practices that have lesser or greater environmental impacts. One example of this is the environmental impacts of different pasture grasses. About 46 percent, or 355 million hectares of Australia, are used mainly for grazing.[19] Pasture grasses can be native, exotic, support significant biodiversity values, or be noxious and damaging weeds.[20] Choosing and managing pasture grasses according to their capacity to enhance biodiversity is an opportunity to enhance the biodiversity values of working agricultural lands.

In order to enhance biodiversity on agricultural land, land managers should undertake activities that promote beneficial environmental services such as pollination, pest control, soil fertility, and water quality.[21] Land managers should also learn how to protect and expand patches of high-quality natural habitat and retain paddock trees.[22] Moreover, land managers can enhance biodiversity through whole farm planning, changes to tree planting plans, fencing and altering tillage regimes.[23] Environmental offsets incentivize and fund such activities, ensuring that they may occur more frequently.

Will the Wilderness Act Be Diluted in Drakes Estero?

Nell Green Nylen, Elisabeth Long, Mary Loum, Heather Welles,
Dan Carlin, Brynn Cook, and Sage Adams*

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<<< See Update 1, November 29, 2012, Below >>>
<<< See Update 2, December 10, 2012, Below >>>

Introduction and Background

Drakes Bay Oyster Company (DBOC)[1] runs a commercial shellfish farming operation in Drakes Estero, a 2,500-acre network of five finger-like bays that extend into the Point Reyes Peninsula, north of San Francisco, California.[2] In 1976, Congress designated more than 25,000 acres of wilderness and 8,003 acres (including the Estero) of potential wilderness within the Point Reyes National Seashore.[3] This marked the first time Congress used the “potential wilderness” designation, creating a new category for areas that would become full wilderness without further legislative action once temporary uses inconsistent with wilderness values ceased.[4] Since that time, Congress has designated more than 250,000 acres of potential wilderness—referred to in this Article as “congressionally designated potential wilderness areas” (CDPWAs)—associated with twenty-nine different wildernesses in thirteen states.[5] DBOC’s aquaculture business remains the sole nonconforming use preventing Drakes Estero from converting to full wilderness.[6] Its authorization to operate is set to expire before the end of 2012.[7]

Part of the onshore operations of Drakes Bay Oyster Company, which farms nonnative shellfish in Drakes Estero, an area Congress has designated as potential wilderness. Photo credit to Nell Green Nylen.

A National Injustice: The Federal Government’s Systematic Removal and Eradication of an American Icon

Bruce Wagman[*] & Lisa McCurdy[**]

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Brutal captures and deaths of American wild horses are occurring on the range. This is not a fictional western gone bad but federal policy. The government tries to justify this cruelty with junk science and is sheltered in its actions by procedural barriers and judicial deference. For nearly four decades, federal contractors have been capturing wild horses and burros across the western United States under the guise of “management” pursuant to the Wild Free-Roaming Horses and Burros Act.[1] The horses are often chased down by helicopters, sometimes for miles through rough terrain in the heat of summer, lassoed, and forced to the ground and then into trailers.

Wild horses are driven down a steep slope by a helicopter during the Twin Peaks Roundup, August 15, 2010. Video credit to Humane Observer.

Whale of an Opportunity: Coast Guard Study of Los Angeles/Long Beach Port Access Routes Holds Great Potential for Reducing Ship Strikes within Santa Barbara Channel

Brian P. Segee*

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Introduction

As global whale populations slowly recover from historic hunting that brought numerous species to the brink of extinction, the increasing number of whales killed by collisions with ships threatens to slow or even reverse this recovery in some areas. Along the west coast of the United States, this conflict is most clearly evident in the Santa Barbara Channel, which not only provides essential habitat for numerous whales, including the densest seasonal population of blue whales on the planet, but also serves as the primary formal shipping lane for traffic into and out of the nation’s busiest port complex at the Los Angeles and Long Beach Harbors (LA/LB). While ship strikes have been implicated in the deaths of blue whales off the California coast since as early as 1980, the incidence of strikes has steadily risen, and in 2007 an unprecedented five blue whales were struck and killed in the Santa Barbara Channel.[1]

Student Review of Selected Panels at the California State Bar’s 2009 Environmental Law Conference at Yosemite

 

 

Jessica Intrator, Lala Wu, Holly Wagenet, Sarah Barker-Ball,

Camille Pannu, & Emily Jeffers*

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Weed in the Wild: Environmental Consequences of Marijuana Cultivation on Public Lands
Speaker: Chief Ranger Steve Shackelton, Yosemite National Park

Yosemite Chief Ranger Steve Shackelton has a lot on his plate. Together with only sixty rangers to cover Yosemite’s nearly 1200 square miles,[1] he oversees the safety of more than 3.5 million visitors annually.[2] Yet, an unprecedented problem threatens Chief Shackelton’s ability to meet his goals: illegal cultivation of marijuana within the park has recently turned his team of safety rangers into drug enforcement agents and taken them away from their other duties.

Gray Wolves in the Northern Rockies Again Staring Down the Barrel at Hostile State Management

Jenny K. Harbine*

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Introduction

Once abundant throughout the contiguous United States, gray wolves in the American West were brought to the brink of extinction by the 1930s through one of the most effective eradication campaigns in modern history. As a result, in 1974 gray wolves were protected under the Endangered Species Act[1] (ESA). Due to intensive conservation efforts that included wolf reintroduction to the greater Yellowstone and central Idaho areas, the current wolf population in the northern Rocky Mountains has rebounded to approximately 1650. However, extreme hostility toward wolves continues to threaten the species’ survival in the region. This hostility is expressed in the state laws that will govern wolf management in the absence of federal protection under the ESA. Nonetheless, for the second time in a year, the U.S. Fish and Wildlife Service (FWS) is eliminating federal protection for northern Rockies gray wolves and relegating wolf management to the states. In so doing, FWS has approved state laws in Idaho and Montana that commit to maintaining only 100 to 150 wolves per state. The result is that the northern Rockies wolf population could plummet to an unsustainable level, even in the short term.

Stopping the Conversation: Amended ESA Section 7 Regulations Put Species At Risk

Eric Biber and Cynthia Drew *

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The Endangered Species Act (ESA) is the primary legal tool in the United States for the protection of biodiversity. Since its enactment in 1973, it has played a central role in efforts to halt the decline of native species throughout the country. Central to the ESA’s regulatory structure is Section 7 of the Act, which requires federal agencies to consult with federal wildlife agencies to insure that their actions do not “jeopardize” the existence of species listed for protection under the Act, or “adversely modify” designated critical habitat for listed species.

The outgoing Bush Administration proposed significant changes to the regulations implementing Section 7 of the Act on August 15, 2008.[1] Those changes greatly reduce the scope of Section 7’s application in two major ways. First, they reduce the analysis of federal actions pursuant to Section 7 by making it harder to connect federal actions to potential harm to listed species. Second, they give federal agencies the ability to determine whether their actions might harm listed species and accordingly whether Section 7 consultation should occur at all.

The First One Hundred Days: Ten Things President-Elect Obama Should Do to Confront the Climate Crisis

Patrick Parenteau *

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In a recent speech, former Vice President and Nobel laureate Al Gore challenged the nation to produce 100 percent of its electricity from non-carbon sources within ten years.[1] Linking the issues of climate, energy, economy and national security, Mr. Gore stated: “We’re borrowing money from China to buy oil from the Persian Gulf to burn it in ways that destroy the planet. Every bit of that’s got to change.”