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Reasonably Certain Confusion: An Update on Recent Endangered Species Act Rulemakings, Policies, and Court Opinions

Decisions under the Endangered Species Act are made using science, but rarely does science provide clear answers. Where there is uncertainty, professional judgment can play an outsized role in decision-making. For example, the application of the “reasonably certain to occur standard” or the “precautionary principle” are professional judgments that can be the determinative factor in listing or critical habitat determinations or effects analyses and take estimates.

Absent Congressional direction, the U.S. Fish and Wildlife Service and National Marine Fisheries Service have developed and applied varied regulations, policies, and informal practices together with the broad mandate to use the best available scientific information to make decisions. Recent agency rulemakings, policy announcements, and court opinions provide insights into the direction the Services are headed in employing this suite of decision-making tools and the extent to which the judiciary may constrain the Services.

Paul Weiland and Amanda Glen explore recent developments expected to influence decisions about listings, permitting, and consultation. Paul will review the D.C. District Court’s July opinion in Maine Lobstermen’s Association v National Marine Fisheries Service. Amanda will review U.S. Fish and Wildlife Service rulemakings and policy on interagency cooperation and mitigation. Stephanie Graham will moderate the discussion and questions from the audience.


Meet the Panelists

Paul Weiland | Assistant Managing Partner, Nossaman LLP

Amanda Glen | Senior Technical Director, SWCA Environmental Consultants

Stephanie Graham | Senior Wildlife Biologist, SWCA Environmental Consultants