AMERICAN WILDLIFE CONSERVATION PARTNERS/DEPARTMENT OF INTERIOR MINI-CONFERENCE BANQUET COMMENTS, Washington DC

RISK ASSESSMENT FOR ENVIRONMENTAL LAWS: UPDATING ECOLOGICAL CONTEXT

Steve Mealey, Boone and Crockett Club
May 18, 2005

ABSTRACT:
Management action and inaction or things we do and don't do (acts of commission and omission), both have the potential to cause serious environmental harm as well as good. On federal fire-prone forests of the West, the focus of regulatory environmental law has been mostly prevention of harm from action. The potential for harm from inaction has largely been ignored. This has contributed to the decline of the very resources the laws are intended to protect. The scope of the Endangered Species Act, Clean Water Act and Clean Air Act could be updated and expanded to include consideration of the short and long term effects of management inaction, and comparing and balancing them with short and long term effects of action. These comparative assessments would allow managers to consider the full ecological contexts over space and time in environmental decision-making and offer improved prospects for restoring and sustaining resources.

BACKDROP:

Madam Secretary, it's a great honor to be here with you and all of your staff to celebrate an exciting day of conservation partnership. I'd like to build on some of my earlier comments today about the need for comparative ecological risk assessments in natural resource decision making:

The following is from the American Ecology Hall of Fame:

"In 1992, a panel of distinguished Americans declared Rachel Carson's Silent Spring the most influential book of the past 50 years. This was one of the latest in a long line of tributes to a woman who almost single-handedly alerted Americans to the dark side of science in alliance with industrial society..."

After the publication of Silent Spring in 1962, communities began to organize to voice concerns to the government about pesticide spraying. Many argue that Silent Spring was instrumental in launching the American environmental movement. Several environmental interest groups including the Natural Resources Defense Council and the Environmental Defense Fund were formed soon after publication of Silent Spring. Additionally it can be argued that the passage of the National Environmental Policy Act (NEPA) of 1969 and the establishment of the Council on Environmental Quality (CEQ) and the establishment of the Environmental Protection Agency (EPA) in 1970 can be attributed to the environmental awareness that Carson raised in her book. Soon after NEPA, several other federal environmental regulatory laws were passed including the Clean Air Act (CAA) of 1970, the Clean Water Act (CWA) of 1972, and the Endangered Species Act (ESA) of 1973 all traceable to the spirit of environmental awareness and concern raised by Rachel Carson.

Common to Silent Spring and the federal regulatory laws that followed, was concern for documenting and reducing the environmental harm, mostly unintended, man was causing through his development actions. A common theme of related publications of the time was "Economic Growth-Environmental Decay", where growth and decay were automatically linked. Environmental regulation focused on proposals for major actions (acts of commission), their environmental impacts, their adverse effects, and standards or alternatives to prevent or mitigate adverse effects. While NEPA calls for a "no action alternative", most regulatory attention as we will see, especially related to fire-prone forests of the West, has been on preventing short term adverse effects of fuels treatment proposals with little attention to the short or long term consequences of inaction (acts of omission), i.e., allowing continued accumulation of fuels until an uncharacteristic, catastrophic fire completely transforms the habitats. The applicable theory in regulatory law, regulations and their implementation appears to be that significant environmental risks result from committed acts rather than from their omission. Analyses supporting the theory were, and continue to be lacking.

Jack Ward Thomas, while addressing a conference in October, 2002 in Bend, Oregon entitled "Fire in Oregon's Forests" commented on the problem of "dynamic vs. static management" in fire influenced landscapes covered by the Northwest Forest Plan. Thomas noted that the combined effect of the environmental laws of the 1970s, including especially the ESA, was the predominant use of preservationist strategies defined as static management or "hands-off" to management action, to protect listed species (and water quality). He observed that reliance on static management that minimizes immediate risks of planned management actions has been routinely reinforced by federal court decisions that favor preservation. Thomas concluded that serious problems with static, near term risk averse management are emerging because ecosystems are dynamic and change is constant in preserves. In fire-prone forests, unabated fuel accumulation leads to uncharacteristic wildfires that can ultimately harm listed species and water quality. Thomas saw these long term effects of management inaction as either ignored or downplayed.

So, in the 40 years between Silent Spring and "static vs. dynamic management" how could laws intended to protect the environment, actually put environmental assets at risk in fire prone forests of the West? A look at the narrowly precautionary nature of the ESA, and by inference the CWA and CAA, is instructive.

PRECAUTION AND PRACTICE IN ENVIRONMENTAL LAW:

The ESA takes a strong but narrowly defined precautionary approach in the face of uncertainty about risk to species. It focuses on and seeks to prevent "take" by prohibiting mainly near term potential and/or uncertain harm or risks. In consultations, proponents of actions must demonstrate that proposals would not be harmful regardless of timeframe, apparently in complete dismissal of ecological change over time. The ESA and its application do not commonly distinguish the time dimension of risk: ie, that some short term risks to species can result in longer term benefits to those same species, or that short term risk avoidance can lead to long term increased risk Rather than documenting mainly actual or probable risks or comparing and balancing the short and long term risks and benefits of proposals and then regulating, the law takes a narrower precautionary approach. In summary, the ESA compels regulating where any risks are believed to be likely.

David Wirth, Professor of Law at the Boston College Law School has observed that the most precautionary policies are those that tolerate absolutely no risk. In that light, the ESA is seen to embody a virtual "zero risk", highly restrictive precautionary philosophy in that federal agencies must assure that each of their actions "is not likely to jeopardize the continued existence" of listed species. Courts have interpreted this language as a broad prohibition on federal actions that may cause any (immediate) harm to listed species, i.e., a "take".

This narrow, highly restrictive precautionary philosophy is apparent in the definitions in the 1998 Consultation Handbook that governs Section 7 consultations under the ESA. The phrase "Is Likely to Adversely Affect" is defined as the appropriate finding if any adverse effect to the species may occur. Any immediate non-beneficial, measurable effect with any possibility of harm, regardless of magnitude and regardless of potential offsetting longer term benefits is "likely to adversely affect" the species. Such a finding would trigger a formal and usually expensive and time consuming process to determine jeopardy or how to avoid it by making modifications to the project. To avoid the process, proponents must propose projects with no immediate risk. In fire-prone forests, this often excludes projects with long term benefits to listed species. Inability to reduce fuels in fire prone forests occupied by spotted owls only to see the trees in those forests killed by intense fire and the resulting vegetation return to brushland, unsuitable for owls, is a case in point.

In 2002, regulating agencies issued a policy that ESA Section 7 consultations should balance the "long term benefits of fuel treatment projects"... "Against any short or long term adverse effects." There is no sign however that management agencies, to support the policy, have routinely completed comparative ecological risk assessments, comparing the short and long term effects of proposals with the short and long term effects of their absence, as part of the consultation process to demonstrate that proposals would not be harmful. In the absence of such analysis, regulating agencies appear to have "defaulted" to the narrow precautionary conclusion that any short term adverse effects are harmful and should be avoided. In summary, in fire-prone forests of the West, especially lands under the Northwest Forest Plan, precaution in the ESA is being narrowly applied to acts of commission: no management is allowed unless there is certainty that at least no immediate harm will result, ignoring without inquiry the potential harm from omitted acts.

ICBEMP

There is a significant history of precautionary application of environmental laws in land management in the West that continues. In 2001, the eight year, $60 million Interior Columbia Basin Ecosystem Management Project (ICBEMP), was halted after producing a science assessment but failing to complete a plan for the more than 70 million applicable federal acres in Idaho, eastern Oregon, eastern Washington, western Montana, western Wyoming and northern Utah. One of the principal reasons for failure was that management and regulatory agencies could not resolve differences about acceptable short and long term risk for an aquatic management strategy intended to protect listed salmon, steelhead and bulltrout and related water quality. Federal regulators insisted on little short term risk to fish and water quality resulting from forest health restoration, while managers wanted more near term forest management to reduce fuel buildup and reduce long term fire risks to riparian and other areas. As one of the original ICBEMP co-managers, I commented on this situation in an address at the national Society of American Foresters Convention in 1999: "In practice, the ESA, CWA and CAA have become barriers to implementing ecosystem science and management because they have been interpreted in a way that impedes integrated and adaptive risk management which could restore long term ecosystem health and limit the occurrence of lethal fire and its threats to water quality, species recovery and homes in rural areas."

Idaho Forest Plan Revisions

In 2001, regulatory agencies provided guidance for developing forest plan alternatives to three national forests in Idaho who as a group, were preparing forest plan revisions. The guidance reflected protocols for de-listing 303 (d) water quality limited streams and minimum protection standards in ESA biological opinions for salmon and trout: "Although long term restoration is desirable for most resources (to include reducing uncharacteristic fire) fish and water quality recovery should continue to emphasize short term risk reduction because some fish populations and water quality conditions may not be able to afford the short term impacts with longer term restoration. The assumption is that the alternative that best provides priority restoration or conservation strategies that are short term risk aversive should best lead toward the desired condition for most soil water, riparian and aquatic concerns." Here, the comparative long term effects of unmitigated risk of uncharacteristic wildfire to fish and water were discounted by assumption and without analysis.

Northwest Forest Plan and Owl Recovery

The U.S. Fish and Wildlife Service completed its status review of the northern spotted owl in November 2004. Uncharacteristic wildfire was found to be the greatest cause of habitat loss during the nine year review period. Jack Ward Thomas in 2003 found that the narrow and restrictive application of the precautionary principle in the Northwest Forest Plan had increased the risk of fire and consequently the risk to owls by discouraging management to mitigate fire risks to owls and their habitat. The U.S. Forest Service identified ESA requirements for consultation as a main reason for Thomas's findings. Differences with regulators over the importance of short term adverse impacts versus the longer term benefits of treatments were a big factor. The Forest Service acknowledged designing projects to align with the risk averse philosophy to reach a "Not Likely to Adversely Affect" conclusion and avoid formal consultation. This often eliminated projects that had long term benefits for owls and fish resulting from reduced fire risk in Late Succession Reserves and in riparian areas, but also had some near term adverse effects.

Highly restrictive precaution embedded in standards and guidelines has been a barrier to restoration management to reduce fire risk and an obstacle to achieving conservation goals. This calls into question the evolved practice in the West of attempting to maintain essentially "static" unmanaged conservation reserves in dynamic fire prone forests. Recent assessments of uncharacteristic wildfire risks indicate that the absence of active management to mitigate fire risks in such areas may be the greater risk to vulnerable species. Ironically, continuation of highly restrictive precautionary principle driven, short term risk averse protection measures will likely lead to the continued deterioration of the very resources the environmental laws were intended to protect.

OPTION FOR BROADENING ECOLOGICAL CONTEXT IN LAW:

ESA case law resulting from Northwest Forest Plan litigation coming mostly from the Ninth Circuit Court of Appeals has consistently reinforced the precautionary features of the ESA and the requirement that regulators implementing the act be averse to short term risk in decision-making. This essentially "locks in" an incomplete legal theory: one that fails to clearly and specifically recognize that acts of commission and acts of omission together are the necessary and sufficient source of environmental risk and benefit. Changing and completing the theory will likely require refining the ESA and the other narrowly precautionary environmental regulatory laws.

In November 2004, International Union for the Conservation of Nature (IUCN) member organizations advanced a draft motion to IUCN's World Conservation Congress in Bangkok, "The Precautionary Principle in Environmental Governance". Four components of the text offer a less restrictive and more responsive precautionary context for American environmental laws that would recognize and balance the short and long term benefits and risks of both management action and inaction:

  1. Precaution should be part of an adaptive management strategy.
  2. Precaution should emphasize collaboration in decision-making.
  3. Precaution should include careful assessment of likely benefits and risks of alternative courses of action and inaction.
  4. Precaution should include socioeconomic understanding as well as environmental science.

In the context of ESA, this broader precautionary approach, especially point #3, could be integrated in part by requiring in ESA Section 7 consultations, that management agencies complete comparative ecological risk assessments balancing, as required in Sec.106 of the 2003 Healthy Forests Restoration Act, the "impact to the ecosystem likely affected by the project, of the short and long term effects of undertaking the agency action, against the short and long term effects of not undertaking the agency action," and requiring that regulatory agencies consider them in related decision-making. Such language could be incorporated into appropriate sections of the CWA and CAA as well. With this mandate there would be no need to "default" to a narrow and restrictive application of the precautionary principle. Not only would the standard for precaution be broadened, but the ecological context of the ESA and other laws would be updated and expanded as well. A requirement for an adaptive management approach to species recovery would also be an important complement.

America's laws regulating the environment were written mostly to resolve the critical environmental problems of Rachel Carson's time, projected forward: mainly to prevent or mitigate adverse consequences of acts of commission. They were necessary then and remain necessary, but they are insufficient for today's problems of omission, especially in fire-prone forests of the West.

Recently, a federal fish biologist in the West was heard to ask: "Which is worse, new fires that may result from past management, or new management intended to mitigate those fires?" With the ESA, CWA, and CAA updated ecologically to require comparative ecological risk assessments, that biologist would likely help answer the question assuring that wildlife and fish, their habitats and related conditions would be properly considered in the ecological context of both space and time.