Why Mitigate?

A new proposal by the Fish & Wildlife Service raises hard questions about the authority (and the imperative) lying behind the agency’s “mitigation” efforts.

On Wednesday, I had the honor of testifying before the U.S. Senate’s Environment and Public Works Committee’s Subcommittee on Fisheries, Water and Wildlife.  At issue was a new proposal by the Fish & Wildlife Service (FWS) to unify its “mitigation” programming under one umbrella policy.  Technically, this would amend and update a policy that was first announced in 1981.  In reality things have changed so much since then that this “amendment” is rather like the 1789 amendments to the Articles of Confederation.

FWS’s policy proposal was published in the Federal Register in March. It kicked up quite a ruckus, although, as I argued perhaps too strenuously in my testimony, it is nonbinding guidance only.  (Here is a slightly (typos) corrected version of my written statement. colburn-testimony-epw-9-21-16)  The courts are not bound by it, it can be summarily abrogated by a subsequent presidential administration, and it doesn’t amend or augment FWS authority in any way whatsoever.  A major driver of the ruckus (in my view) is that “mitigating” impacts on fish, plants, wildlife and their habitats is something FWS is constantly seeking to accomplish with a huge variety of tools.  It may sound like the same thing (“mitigation”), but to market actors familiar with our legal system the differences aren’t so stark between FWS recommendations to others (which, at least in theory, can be ignored or discounted) and FWS interpretations of a law like the Endangered Species Act (ESA).  The latter tend to be controlling in all but extraordinary circumstances. But the former can sometimes be binding in practical effect.

The Subcommittee is chaired by Senator Sullivan (R-Alaska).  As the witnesses for the majority made clear, the big sources of angst in the regulated community are FWS’s announced commitment to integrating climate change considerations into mitigation planning and its plan to pursue—through its various authorities and programs—a kind of “no net loss” (NNL) norm overall.

Both Senator Sullivan and the majority’s witnesses, one from the Alaska Oil & Gas Association, one from the “National Endangered Species Act Reform Coalition,” seemed especially interested in these policy goals and their legal basis.  Where, they asked repeatedly, does FWS get the authority to pursue a NNL goal when weighing development proposals, whether by offering (nonbinding) recommendations, as is the case with environmental impact statements (EISs) involving threats to the agency’s “trust resources” under the National Environmental Policy Act (NEPA) § 102(2)(C), or by interpreting and applying the law directly, as when it decides whether to issue ESA “incidental take” permits pursuant to ESA § 10(a)(2)(B)(ii).  Neither of those mention NNL specifically.

I thought the answer given by the Obama Administration’s witness—Michael J. Bean, the Interior Department’s Deputy Assistant Secretary for parks and wildlife—was strategically shrewd.  Bean came to the Department from a sterling career as a wildlife law expert and was game for anything this hearing could’ve kicked up.  His answer, in sum, was: FWS has the authority to push for NNL in all of its mitigation programming unless and until Congress says otherwise because the threats are numerous and growing, time is running out for too many of those resources, and what else would we aim for if not NNL wherever possible?

But this got me thinking, both during the hearing and since.  Where do agencies like FWS get the authority to articulate some broader or deeper principle, ostensibly to unite and organize the discretion they have under a panoply of statutory authorizations and obligations with which they’re charged?  Especially if every statutory authority/obligation is unique?  I’ve come up with the following, admittedly partial theory.

Executive Discretion to Implement the Law Often Entails Making It

As our Supreme Court has tipped off many times in adjudicating the legality of Congress’ delegating authority to administrative agencies, the line between interpreting the law and making it is fuzzy.  See, e.g., Whitman v. American Trucking Ass’ns., 531 U.S. 457 (2001).  Every first year law student learns that.  What they often miss about statutes, though, is that, over time, laws take their form most directly from the institutions implementing them and how those institutions interact with others.

Let’s consider NEPA (this is the NEPA Lab!), which directs agencies preparing EISs to “consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved.” NEPA § 102(2)(C).  This typically means some “action agency,” like, say, the Army Corps of Engineers, will seek FWS’s comments on a proposed bridge project the footprint of which is expected to impact local fish, shellfish, and bird populations.  To up the ante, let’s say some of those are thought to be at risk of local extirpation.

It’s one thing for some FWS field officer to comment that the Corps might consider putting the bridge in a better spot which’d be less disruptive to resident wildlife because that local staffer knows the traffic situation, the habits of resident wildlife, the state’s budget constraints, etc.  This interchange could be win-win, so to speak.  It is something else for that field officer to be under a mandate from Washington that s/he advocate for NNL in all events whether there’s good information on point or not.

Climate change snaps the difference into focus.  Too often, we know to expect differences in the future from what we’ve grown accustomed to without having any knowledge at all about the nature (direction, magnitude, probability) of the shifts to expect.  And, of course, it could make all the difference whether the FWS staffer’s advocacy can be ignored or whether that “advice” is, for all practical purposes, binding.

But if you also factor in the practical reality that, through years of litigation and accrued legal precedent, action agencies preparing NEPA documents must always prepare at least one alternative to their proposals—the so-called “no action” alternative—the NNL policy takes on a hard edge even in the supposedly non-binding contexts of NEPA § 102.  It might seem as if FWS is telling its personnel, if not in so many words: wherever climate change uncertainties are afoot, you should always advocate for the “no action” alternative.  If you also know how pivotal expert commenting agencies’ contributions can be when NEPA documents are subsequently litigated, well then, especially in a state like Alaska where infrastructure and economic development are decades and centuries behind what they are in most states, this could seem a very threatening policy proposal indeed.  (See, for example, this article on the growing role of commenting agencies in NEPA litigation.)

The insinuation that a backdoor passage to opposing everything has been smuggled into what would otherwise be field office discretion—discretion that, in a world where information is scarce, costly to acquire, and hard to convey, too often equals no FWS position at all—frames the question: Isn’t this an abuse of (executive) power?  Shouldn’t Congress be the one to fill these gaps if any institution should?  For three reasons, I think the answer is no.

Goals Like “Mitigation” Are Often Latent in Our Politics—And Should Stay that Way

FWS only came to its conclusion that “mitigation” is a critical intersection of concepts, practices, and priorities connecting dozens of different programs through decades of experience with those many different things.  It crafted its policy from experience with actual mitigation plans, struggles over their implementation, and a deep institutional knowledge of the uncertainties that drive all of that.  In short, FWS as an implementing institution—connected to Congress through tethers Official Washington knows only too well—learned about mitigation by doing mitigation.

A norm that says ‘only Congress ought to fill gaps like this’ injects the (unfortunately) hyper-partisan politics of legislating into what’s already a ‘political’ nexus.  (If you think FWS doesn’t carefully weigh the local and national politics of mitigation, think again.).  More importantly, though, a legislature never learns by doing.  It learns by its own means.  And if something like the cross-cutting practice of “mitigation” were to come to the floor of the House or Senate, it would change instantly in its social, economic, and cultural significance.  Probably not for the better, either.

Congress is a “They,” Not an “It”

As the political scientist Kenneth Shepsle once famously argued, Congress is not, contrary to appearances, a single agent with a nationwide perspective.  It is a collective, internally plural agent that views the United States through the lens of state lines, district lines, and the externalities those boundaries entail.  When FWS thinks about NNL, it prioritizes on behalf of all Americans—hopefully, equitably (as equitably as the laws it implements allow), but in all events without regard for how the balance of benefits and burdens will advantage one state or another.  If only Congress can set goals like those in FWS’s mitigation policy, we would ensure that even more of our politics become some function of state- and legislative-district trade-offs.  And that probably wouldn’t be a good thing.

Transparency Often Means Creating Opportunities for Opponents

There once was a time when “guidance” like the NNL goal was secret, kept within the confines of internal agency communication.  The effect on subordinates was the same.  It’s just that no one knew about the internal agency priorities until after they were put in motion.  A norm that says no voids of this kind should be filled except by Congress won’t necessarily garner perfect (or even imperfect!) compliance.  It might well just drive all the guidance back down below the waterline from whence it came.  FWS didn’t have to publish its guidance in the Federal Register. It probably did so to prompt all who might be opposed to make their case, helping to improve the finished product and perhaps diffuse some anxieties.  And it might have done so to improve the policy’s reception by the courts, should that ever matter down the line (I have my doubts that that factor played much of a role here).

By making this a public process, though, FWS knew it would invite scrutiny of itself.  It gave the opportunity Wednesday’s hearing represented to those who would oppose it.  But it also helped others better understand where the agency is heading.  And that might help those others better plan their own affairs.  All things equal, partnering agencies, the public, and investment capital are better served knowing in advance that FWS priorities like this have been set.  And that is a good thing.

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FWS is, by nature, a cooperative agency.  Unlike some others, its institutional culture and perhaps even the shared professional attitudes of the bulk of its public servants, sound in conciliatory tones.  This latest policy proposal may be a rare opportunity to turn mitigation overall into a “win-win.”  It would be a shame to miss that opportunity.

{Image: The “bridge to nowhere” never built, © 2015 Alaska Dispatch News}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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