1978: Amendments to ESA with an Exemption Process
In 1978 Congress passed an amendment to the Endangered Spcies Act “to allow for a weighing of economics in a process which could grant exemption to the Act’s requirements and limitations on activities for the protection of a listed species.” This was primarily due to two cases at the time involving listed endangered species and damaging proposed actions: the snail darter case (Tennesse Valley Authority v. Hill) and the whooping crane case (Nebraska v. REA and Nebraska v. Ray).
The exemption process became particularly important during later controversies in the Pacific Northwest over the proposed listing of the northern spotted owl under the ESA.Many argued that because many activities would become prohibited, listing of the species as threatened, or protection of it under various other federal laws may have a substantial impact on the timber industry of the area.Consequently they proposed that if the spotted owl was listed, an exemption should be sought under the amended ESA.
To be eligible for an exemption, the responsible federal agency and the exemption applicant must have carried out a consultation process required under section 7 of the ESA.They also must have made a reasonable and responsible effort to develop and consider modifications or reasonable and prudent alternatives to the proposed action that would not jeopardize the continued existence of any endangered or threatened species, or result in the destruction or adverse modification of critical habitat of a species.
The exemption process begins only after a species is listed, consultation has occurred, a finding has been made that the action is likely to jeopardize a species, and it is determined that there are no reasonable and prudent alternatives to the agency action. The exemption process is the principle way in which economic factors are intended to be taken into account under the ESA Up to 1990, there were only a few instances in which the exemption process was initiated, and only one in which an exemption was granted.
The Endangered Species Committee (ESC) reviews applications for exemptions. The ESC is composed of the Secretary of Agriculture, Secretary of Army, Chairman of the Council of Economic Advisors, Administrator of the EPA, Secretary of Interior (who chairs the ESC), the Administrator of the National Oceanic and Atmospheric Administration (NOAA), and one individual from each affected State. If the ESC grants an exemption, it also must establish reasonable mitigation and enhancement measures that are “necessary and appropriate to minimize the adverse effects” of an approved action on the species or critical habitat.
The ESC cannot grant an exemption for an agency action if the Secretary of State, after hearing a review of the proposed agency action, certifies in writing that carrying out the action would violate a treaty or other international obligation of the U.S. This provision is relevant to the spotted owl case, because the spotted owl is listed as a species protected under the Migratory Bird Act (MBTA). Also, the interaction of the ESA exemption process with other laws is not clear. The rules and regulations of the National Forest Management Act or the National Environmental Policy Act might still apply, even through ESA exemption.
USDA Forest Service. “Spotted Owl Background Information.” USDA Forest Service, Public Affairs Office; June 15, 1990.