Federal officials deem that state-led efforts are sufficient to protect the bird’s habitat for the near future.
On September 22, the administration of US President Barack Obama announced that, given the “unprecedented” conservation partnership among state, federal environmental, and energy development stakeholders, the greater sage-grouse does not require protection under the federal Endangered Species Act (ESA). Federal officials concluded that state-led cooperative efforts were sufficient to protect the bird’s habitat for the near future and, therefore, the sage-grouse has been removed as a candidate for listing on the federal endangered species list.
Listing a species as “endangered” or “threatened” under the ESA triggers many consequences: it results in more expansive environmental study obligations for projects located in the vicinity of the species, slows or precludes environmental permitting (and, by extension, project development), and can result in the increase of project operational restrictions and costs that are needed to avoid adversely affecting the species (or to mitigate expected impacts). As a result, a listing decision is often a hotly contested component of ESA implementation.
With the sage-grouse population having declined by nearly 80% over the past century, the debate about whether to list the species has ramped up in recent years. From Colorado to California, sage-grouse habitat now stretches across over 160 million acres of the Western United States. Concerns over limiting (or addressing already existing) habitat fragmentation and destruction has frequently come into conflict with efforts to develop valuable economic resources—especially oil and gas.
This week’s no-listing decision marks a significant shift in trends from those found by the US Fish and Wildlife Service (USFWS) in 2010 that the birds needed protection. The agency’s 2010 assessment highlighted habitat fragmentation caused by energy development, invasive species, wildfires, and agriculture as the primary threats. The USFWS in 2010 nevertheless stopped short of listing the species, because it found that although the greater sage-grouse met the requirements for listing, taking the action was precluded by higher priority actions. This finding essentially meant that listing was not being done because the USFWS did not have sufficient resources to do so. Therefore, the sage-grouse remained a candidate for listing.
After the USFWS’s 2010 determination, a number of western states launched a series of voluntary conservation programs aimed at restoring and protecting sage-grouse habitat. Secretary of the Interior Sally Jewell has since commended the “unprecedented” and “extraordinary” state-led programs as “the largest land conservation effort in US history.” Environmental groups and government officials developed a number of compromise strategies to incentivize the bird’s protection that were consistent with continued economic development activity. In an effort to avoid federal intervention, hosts of energy companies joined the conservation efforts, modifying operational protocols and developing conservation-conscious technologies aimed at sage-grouse habitat preservation and restoration.
The USFWS will continue to monitor greater sage-grouse populations, as it is scheduled to reevaluate the status of the species in 2020. Moving forward, it will be critical that stakeholders continue the voluntary effective—but less bureaucratically and economically burdensome—efforts that are underway.
While the USFWS’s decision is a welcome one for those who look to develop projects throughout the affected states, many groups will undoubtedly closely monitor the preservation and restoration efforts going forward. Developments that suggest the sage-grouse is at risk, or is failing to thrive, will likely trigger renewed calls for listing, with all of the attendant burdens that a listing would entail.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Ella Foley Gannon
Ronald J. Tenpas