By December 15, 2020, the United States Fish and Wildlife Service (“FWS”) will issue its final decision on whether to list the monarch butterfly under the Endangered Species Act (“ESA”). This is a highly anticipated decision that has been underway for several years. A recent post from the National Agricultural Law Center gave an overview of this issue, including the petition to list the monarch butterfly, the underlying court case, and conservation efforts FWS has undertaken in partnership with private parties. This post will explore potential consequences to the publication depending on whether FWS designates the butterfly as “endangered,” “threatened,” or decides not to list the monarch at all. Each possibility has its own outcome that would have different impacts to the agricultural sector.
An endangered listing would grant the monarch butterfly the strongest ESA protection. When a species is listed as “endangered” under the ESA it receives all the protections located in section 9 of the Act. Endangered species also become eligible for designated critical habitat, and federal agencies must ensure that their actions will not put the species in jeopardy of becoming extinct.
When a species is listed as endangered, it immediately comes under protection of section 9 of the ESA. Those protections include the prohibition on take, import and export of the species, possession, and sale. “Take” is perhaps the best-known of these prohibitions. The term is defined to include “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct.” 16 U.S.C. § 1532 (19). The term “harm” is further defined to include “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3. In other words, the prohibition on take can include harm caused to milkweed, the monarch’s host plant and sole source of food. If the monarch butterfly is listed as endangered, it is possible that any agricultural activity which would cause “take” of the monarch would be a violation of the ESA. For example, spraying any herbicide or otherwise killing or removing the monarch’s food source – milkweed – could be a taking.
When a species is listed as endangered, it becomes eligible for critical habitat designation. Under the ESA, critical habitat is divided into two categories. The first category of critical habitat includes “the geographic area occupied by the species at the time it was listed […] on which are found the physical or biological features essential to the conservation of the species[.]” 16 U.S.C. § 1532 (5)(A)(i). The second category includes areas that were not occupied by the species at the time of listing, but are essential for its conservation. In 2019, FWS adopted changes to the ESA that altered the process for designated unoccupied areas as critical habitat. Now, not only must the unoccupied area be essential to the conservation of the species, it must also contain one or more of the physical or biological features necessary for the species’ conservation. In other words, the unoccupied area must be habitat to be designated critical habitat. This may mean it will be less likely for agricultural land that is not currently capable of serving as monarch butterfly habitat to be designated as critical habitat if the monarch is listed as endangered. However, the monarch is migratory species and annually travels from Canada to Mexico with populations of the butterfly making the trip on both the Eastern and Western sides of the Rocky Mountains. As a result, simply because an area is not occupied by monarchs at the time of listing does not mean that the area is not monarch habitat. In fact, the Monarch Joint Venture, a partnership of government agencies, businesses, and academic programs, has outlined where the butterfly is capable of living and has tracked its 2019 migratory paths showing monarchs in almost every state.
Finally, when a species is designated as endangered, federal agencies must ensure that any actions they “fund, authorize, or carry out” will not jeopardize the survival of any listed species or adversely modify any designated critical habitat. If an agency concludes that its proposed action “may affect” a listed species, it must consult with FWS to avoid jeopardy or adverse modification. The length of time necessary for the consultation process varies from project to project. If the agency taking the action (“action agency”) and FWS both conclude that the action is not likely to adversely affect a listed species, then an informal writing from FWS agreeing with the action agency will conclude the consultation. However, if the action agency concludes that the action is likely to adversely affect a listed species, then the agency must begin formal consultation with FWS. Formal consultation results in the FWS drafting a biological opinion, which is a determination as to whether FWS believes the federal action is likely to jeopardize a species or adversely modify critical habitat. If the biological opinion concludes that the action will cause jeopardy or adverse modification, then it will contain “reasonable and prudent measures” to minimize the harm caused by the action, or “reasonable and prudent alternatives” to action implementation which would avoid the likelihood of jeopardy or adverse modification. After the biological opinion is drafted, the action agency has a range of choices for how to proceed including adopting the reasonable and prudent alternatives or measures, reinitiating consultation, setting aside the project, requesting an “incidental take statement” that will allow the agency to engage in a certain amount of take without violating the ESA, or taking some other action entirely. The choice is entirely up to the action agency.
If the monarch butterfly is listed as endangered, the consultation requirement could increase the amount of time it takes for federal agencies to take actions that impact agriculture. For example, the Environmental Protection Agency (“EPA”) would need to engage in ESA consultation any time it registered a pesticide that may affect the monarch. This could lengthen the registration process, and may result in additional restrictions on how the pesticides may be used. Further, this consultation would affect all federal actions. In other words, any agency action that may affect the butterfly – from decisions to register pesticides, to constructing dams, to giving farm loans – could be subject to ESA consultation, thus expanding the timeline before approval while also adding more potential restrictions on the action.
Species that are listed as “threatened” under the ESA receive protection under the Act, but to a lesser degree than those species listed as “endangered.” Prior to the 2019 changes to the ESA, any time a species was listed as “threatened” by FWS, it automatically received the same section 9 protections as endangered species. This rule was known as the blanket 4(d) rule. Section 4(d) of the ESA requires that any species listed as threatened under the ESA be regulated “to provide for the conservation of such species.” Before to the 2019 changes, that language was interpreted to automatically grant a threatened species the same protections as endangered species. A previous blog post about the 2019 changes is available here.
Now that the blanket 4(d) rule has been rescinded, FWS issues species-specific section 4(d) rules when a species is listed as threatened. This means that if the monarch butterfly is listed as threatened, it will not automatically receive the same protections as an endangered species, including the prohibition on taking. Instead, FWS will have to issue a separate rule if it wants to apply any of the section 9 protections to the monarch. This is important because if the monarch butterfly is listed as threatened, it will not automatically be a violation of the ESA to engage in activity that would cause a taking of the monarch. Unless FWS issued a section 4(d) rule specifically prohibiting actions that would be considered takings, then those actions would not violate the ESA. While spraying an herbicide that resulted in harm to the monarch butterfly could automatically be considered a “taking” in violation of the ESA in the situation where the monarch had been listed as endangered, the same action would not be a violation if the monarch was listed as threatened unless FWS issued a rule saying that it was.
Under the ESA, threatened species are also eligible for designations of critical habitat. The text of the ESA requires FWS to designate critical habitat any time a species is listed as threatened or endangered. FWS uses the same process to designate critical habitat regardless of how the species is listed. The designation of critical habitat for threatened species was not affected by the rescission of the blanket 4(d) rule because the ESA specifically directs FWS to designate critical habitat for threatened species.
Finally, federal agencies are required to consult with wildlife agencies if they determine that a proposed action may affect a listed species, this includes species that are listed as threatened as well as endangered. The process for federal agency consultation is the same whether a species is listed as threatened or endangered. This means that the same restrictions discussed above, for any and all federal agency action, will be in play if the monarch is listed at either level.
Declining to list the monarch butterfly would mean that the monarch is not subject to any ESA protections. However, that does not mean that the monarch would be entirely unprotected. Many members of the energy and transportation sector have entered into a Candidate Conservation Agreement with Assurances (“CCAA”) with FWS. The agreement requires participants to engage in certain conservation efforts for the monarch butterfly, and in return the participants will not be required to engage in any additional conservation measures if the butterfly is listed. If the monarch is not listed, the CCAA will still be in effect for 25 years unless it is terminated or revoked before that time. Even if the monarch is not listed, participants in the CCAA will still have to engage in conservation efforts according to the agreement.
A decision not to list would likely maintain the status quo for members of the agricultural who are not participants in the CCAA. The monarch butterfly would remain as it currently is, without any ESA protection. However, a decision not to list could result in a lawsuit against FWS seeking to force the agency to reconsider its decision. It is also possible that opponents to a decision not to list could start the process over again by petitioning FWS to list the monarch butterfly as endangered or threatened.
The final listing decision for the monarch butterfly has the potential to impact agriculture, but that impact will vary depending on whether the butterfly is listed as endangered, threatened, or is not listed at all. An endangered listing would likely have the greatest impact, but even if the monarch is not listed at all, some conservation efforts may impact use of land for participants in the CCAA.
To read the text of the ESA, click here.
To view the 2019 changes to the ESA, click here.
For more National Agricultural Law Center resources on the ESA, click here.