Cat Ex Update 10/30/15

Cat Ex Update

"This notice announces the addition of a new categorical exclusion under the National Environmental Policy Act to be included in the Department of the Interior's Departmental Manual for the U.S. Fish and Wildlife Service. The categorical exclusion pertains to adding species to the injurious wildlife list under the Lacey Act. This action will improve the process of listing species by regulation as injurious wildlife and thereby help to prevent their introduction into and spread within the United States." - FWS

The Department provided that it sought this action to improve the process of listing species by regulation as injurious wildlife, thereby helping to prevent their introduction into, and spread within, the U.S.

Federal Register posting: www.federalregister.gov/articles/2015/10/29/2015-27360/national-environmental-policy-act-implementing-procedures-addition-to-categorical-exclusions-for-us

USARK has written extensively on this issue, testified at a Congressional hearing and more. Below is additional information regarding Cat Ex with links to newsletters at bottom of page.

What is a “Categorical Exclusion” Under NEPA? 

  1. NEPA (the National Environmental Policy Act) requires agencies to assess environmental impacts and identify alternatives to “major Federal actions” that may “significantly affect the quality of the human environment.” The agency is required to publish an environmental impact statement (“EIS”) that describes its findings and justifies the proposed rule (in this case, the injurious listing of certain snakes under Lacey)
  2. There are two exceptions to the EIS requirement: (1) if, after conducting a less thorough environmental assessment (“EA”), the agency makes a “finding of no significant impact” (“FONSI”); or (2) if the action is subject to a so-called “categorical exclusion.”
  3. Categorical exclusions (“CE”) are defined as actions which do not, individually or cumulatively, have a significant impact on the human environment.
  4. If a potential impact raises any uncertainty over a rule’s significance, then an “extraordinary circumstance” exists, and there is no exclusion allowed.
  5. For the proposed listing of the nine species of constricting snakes, FWS made a finding of no significant impact after conducting what USARK demonstrated was a legally inadequate environmental assessment. USARK also found other NEPA and Administrative Procedure Act violations in the rule.
  6. View more information at http://usark.org/2013-blog/fws-seeks-nepa-exemption/
USARK Fights Cat Ex in Washington D.C. (8/8/13)

Summer has been a busy time for USARK! In July, USARK President Phil Goss, accompanied by our legal team at Kelley Drye, spent two full days in Washington, D.C. opposing the categorical exclusion (Cat Ex) for Lacey Act listings by the Department of the Interior and United States Fish and Wildlife Service (USFWS). Traveling to Capitol Hill, USARK visited with over a dozen House, Senate and key Congressional Committee offices, receiving strong support at every stop. The legal expertise and government connections held by USARK’s legal team are undeniably among the most influential in Washington. As a result of USARK’s efforts, we obtained the signatures of key House Natural Resources Subcommittee Chairmen on a letter to USFWS Director Dan Ashe opposing the categorical exclusion waiver for Lacey Act listings (view the letter HERE). In addition, we spent over an hour formulating strategy with the Small Business Office of Advocacy (SBA) on collaborative efforts to oppose the Cat Ex proposal, and ultimately the listing of the remaining animals on the Lacey Act. In support of SBA, USARK requested an extension to the comment period (which was granted and the deadline will be 60 days from the re-opening date). You can use the USARK Action Alert (HERE) to voice your opposition.

USARK was well-prepared and submitted extensive comments before the original deadline. As USARK has previously noted, FWS is proposing a “categorical exclusion” from the National Environmental Policy Act (better known simply as “NEPA”) when it acts to ban importation and interstate trade in reptiles and other species it, in its sole judgment, considers “injurious.” In response, we filed thorough and legally-supported opposition to FWS’ unwarranted and unjustified proposal to exempt Lacey Act listings from environmental and scientific review and public comment.

As USARK observed, FWS lacks the power to declare itself free from NEPA. Ultimately, a court can decide whether the snake listing or any future declaration of a reptile or amphibian species as injurious complies with NEPA and other applicable law. USARK stands ready to uphold these laws, and end and reverse the unjustified snake ban. (Read more concerning the categorical exclusion issue at the bottom of this email.)

USARK Testifies at Congressional Hearing (9/23/13)

USARK President Phil Goss traveled to Washington, D.C. last week. In addition to meetings, strengthening relationships with our allies and tireless networking, USARK sat as one of five witnesses for a hearing concerning the USFWS categorical exclusion proposal. Three of the five witnesses testified against the proposal: USARK, PIJAC and AZA (Association of Zoos and Aquariums). During the hearing, a letter signed by John Fleming, Rob Bishop, Steve Southerland and Don Young was submitted to record. USARK was instrumental in gaining these signatures during a Capitol Hill visit earlier this summer (view the letter HERE). This letter urges that USFWS Director Dan Ashe immediately withdraw the CatEx proposal. USARK's testimony illustrated the proposal is unjustified and overreaching, giving the power to terminate small businesses and potentially an entire $1.4 billion industry at the discretion of a few individuals at USFWS. USARK's legal team at Kelley Drye has proven indispensable throughout this fight. There is a summary of USARK's testimony at the bottom of this email.

Cat Ex Testimony Summary (9/23/13)

USARK believes the Service’s proposal for a categorical exclusion for its Lacey Act listings is unjustifiable and wholly unnecessary. There may be instances when employment of a categorical exclusion is warranted, particularly for species not in trade or not currently present in the United States. In such circumstances, however, the Department of Interior already has an appropriate categorical exclusion of which the Service has availed itself in past listing decisions. For most listings, however, NEPA provides for both public participation and rigorous scientific assessment, elements that are currently otherwise lacking in the law.

The Lacey Act invests the Secretary of Interior with discretion, delegated to FWS, to declare species of wildlife “to be injurious to human beings, to the interests of agriculture, horticulture, forestry, or to wildlife or the wildlife resources of the United States.” 18 U.S.C. § 46(a)(1). The law is unique among this Nation’s conservation laws in that it provides neither standards, such as a “best science” requirement, nor procedural requirements to which the Service must adhere in making such decisions. The only prerequisite is that the listing be done “by regulation,” which assures only the provision of notice-and-comment rulemaking and a minimally sufficient explanation of the basis of the decision.

It is important to understand why Administrative Procedure Act (“APA”) processes alone are not sufficient to protect the public interest. A determination that a species is “injurious” under the Lacey Act involves judgment by agency experts involving determinations both technical and scientific. Congress has vested the authority to make such determinations in the Secretary, while providing no criteria to guide her decisionmaking.  Under such circumstances, the agency is given the utmost deference by courts. In fact, so long as some rationale is presented, it is unlikely a listing decision could ever be successfully challenged.

This makes FWS’ continued adherence to NEPA essential. Years of judicial interpretation have established a clear framework for agencies to follow in making regulatory decisions. For example, it must evaluate the opinions of the public and outside experts, respond to all legitimate concerns brought forth relating to the environmental impacts of their actions, and consider significant proposed alternatives. If an agency fails to take the required “hard look” or adhere to processes the law requires, it can be held accountable. By contrast, utilization of a categorical exclusion shortcuts these procedures and places the burden of assuring FWS’ NEPA compliance in the hands of the public.

In fact, the Service has a checkered past with respect to NEPA compliance in conjunction with Lacey Act listings. When it listed four species of constricting snakes as injurious in 2012, the Environmental Assessment (“EA”) prepared was legally inadequate and FWS’ accompanying “finding of no significant impact” (“FONSI”), wholly unjustified. This listing, done in partial completion of a 2010 proposal to list nine species of constricting snakes (five others, including the Boa constrictor and Reticulated python, remain outstanding).

This was the first Lacey Act listing of species that are widely held in pet ownership and the foundation of a domestic industry. The proposal was highly controversial – one of the key NEPA criteria for producing a full environmental impact statement (“EIS”) – for social and economic as well as scientific reasons. This response is inadequate, and the proposed exclusion, more generally, is unjustified and should be rejected.

Link 1: Cat Ex hearing and testimony summary: www.usark.org/uncategorized/catex-update-and-usark-in-d-c-92413/

Link 2: USARK in D.C. regarding Cat Ex: www.usark.org/uncategorized/cat-x-injurious-snake-listing-d-c-and-more-8813/

Link 3: Previous Cat Ex Action Alert: www.usark.org/action-alert/usfws-categorical-exclusion-2/