Protecting Species or Hindering Energy Development? How the Endangered Species Act Impacts Energy Projects on Western Public Lands

10 Pages Posted: 10 Nov 2016

See all articles by Melinda E. Taylor

Melinda E. Taylor

University of Texas at Austin - School of Law; University of Texas at Austin - Kay Bailey Hutchison Center for Energy, Law & Business

Romany Webb

Columbia University - Sabin Center for Climate Change Law

Vanessa Puig-Williams

University of Texas at Austin - Kay Bailey Hutchison Center for Energy, Law & Business

Date Written: November 1, 2016

Abstract

Since it was enacted in 1973, the ESA has been one of the most celebrated environmental laws, but also one of the most reviled. Industry groups argue that the consultation process frequently delays and sometimes halts much needed energy, transportation, water supply, and other projects and often dramatically increases project costs. Environmentalists disagree with this view, contending that the process actually rarely stops anything and that the FWS lacks the backbone to impose meaningful conservation requirements that would be costly or inconvenient for the project developer. In 2015, the authors decided to delve deeply into ESA §7 to analyze how it actually works in practice and to assess the validity of various parties’ claims about the consultation process. They focused on the impact of §7 consultation on energy development on public land. This Comment is an overview of that study and key findings. In a nutshell, the authors learned that only a small fraction of energy projects developed on public land are reviewed at all under §7. When it applies, the consultation process appears to go quickly and smoothly for the vast majority of oil and gas projects, for a variety of reasons. On the other hand, consultation on solar energy and wind energy projects tends to be lengthy and complicated.

Keywords: Bureau of Land Management, consultation process, endangered species, Endangered Species Act, energy development, energy projects, ESA, federal land, gas, oil, PBO, Programmatic Biological Opinion, Section 7 of the ESA, solar, threatened species, U.S. Fish and Wildlife Service, wind

Suggested Citation

Taylor, Melinda E. and Webb, Romany and Puig-Williams, Vanessa, Protecting Species or Hindering Energy Development? How the Endangered Species Act Impacts Energy Projects on Western Public Lands (November 1, 2016). Environmental Law Reporter, Vol. 46, No. 11, 2016, Copyright© 2016, Environmental Law Institute®, Washington, DC. Reprinted with permission from ELI®, KBH Energy Center Research Paper No. 2016-9, Available at SSRN: https://ssrn.com/abstract=2867113

Melinda E. Taylor (Contact Author)

University of Texas at Austin - School of Law

727 East Dean Keeton Street
Austin, TX 78705
United States

University of Texas at Austin - Kay Bailey Hutchison Center for Energy, Law & Business ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

Romany Webb

Columbia University - Sabin Center for Climate Change Law ( email )

Jerome Greene Hall
435 West 116th Street
New York, NY 10027
United States

Vanessa Puig-Williams

University of Texas at Austin - Kay Bailey Hutchison Center for Energy, Law & Business ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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