Reexamining What We Stand to Lose: A Look at Reinitiated Consultation Under the Endangered Species Act

This article first examines the role reinitiated consultation plays within Congress\u27s statutory framework and concludes that in many ways, reinitiated consultation is the glue that holds the Endangered Species Act\u27s protective scheme together. While the ESA generally prohibits any injury to an endangered species, Congress has authorized the Service to permit such injuries under certain circumstances. But these authorizations must be accompanied by a limit that will trigger reinitiated consultation if exceeded. Thus, without reinitiated consultation, these preauthorized injuries or “takes” would prove gaping leaks in Congress\u27s “Ark,” leaving little or no safety for endangered species. Moreover, reinitiated consultation has significant real world consequences for federal agencies and private parties. Failure to reinitiate consultation when legally required can subject the agency and its employees, as well as private parties, to civil and even criminal liability. Next, this article explores the legal basis for reinitiated consultation. Despite its central role, Congress never provided for reinitiated consultation within the Act itself. While the Service has acknowledged this silence, the courts generally do not raise this question of statutory authority. In light of the ambiguities within the ESA and Congress\u27s clear direction in the legislative history of the Act that it intended for agencies to reinitiate consultation, this article concludes that the practice is legally supportable. Finally, given the significance of reinitiated consultation, and the likelihood that it is here to stay, this article then explores how courts have reviewed suits concerning reinitiated consultation. This discussion highlights potential challenges and best practices for federal agencies and permittees. This article concludes that, with few exceptions, courts have taken a surprisingly deferential approach to reviewing agency decisions to reinitiate, or more commonly not reinitiate, consultation. For example, courts have allowed agencies to expand a project\u27s scope, duration, or impact on listed species or to recalculate how to measure the impacts altogether without requiring reinitiated consultation. Nonetheless, courts have taken a much stricter approach when considering the triggers for reinitiated consultation and have frequently insisted that those triggers be as meaningful and as exact as possible. However, before discussing reinitiated consultation in detail, this article provides some additional background on the ESA in general and reinitiated consultation in particular. To understand the purpose and effect of reinitiated consultation, one must first understand several key ESA provisions - namely, the ESA\u27s listing, liability, and consultation provisions