In an unprecedented move, the U.S. Fish and Wildlife Service has empowered itself to shortcut the rule making process under the Lacey Act in order to more easily and arbitrarily declare “Injurious Wildlife” listings, and making way for the potential mass listing of species. Known as CatX, this newly enacted rule will negatively impact zoos and aquariums, research facilities, TV and film, aquaculture, herpetoculture, and the pet trade.
What is a Categorical Exclusion (CatX)?
The U.S. Fish and Wildlife Service (FWS) states:
A categorical exclusion is a class of actions under the National Environmental Policy Act (NEPA) that do not individually or cumulatively have a significant effect on the human environment. Under NEPA, Federal agencies are required to consider the potential environmental impact of agency actions prior to implementation. Agencies are then generally required to prepare either an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). However, when a Federal agency identifies classes of actions that under normal circumstances do not have a potentially significant environmental impact, either individually or cumulatively, the Council on Environmental Quality (CEQ) regulations allow the agency to establish a categorical exclusion and to bypass the completion of an EA or an EIS when undertaking those actions.
On October 29, 2015, the FWS quietly enacted a categorical exclusion (CatX), “streamlining” the rule making process necessary to list species as “injurious” under the Lacey Act. FWS will no longer be required to provide an Environmental Assessment (EA), or an Environmental Impact Statement (EIS) as supplementary documentation required by the National Environmental Policy Act (NEPA). Although seemingly innocuous, CatX removes a great deal of due process protections required by NEPA, and could spell disaster to businesses and institutions targeted by FWS.
Under the Lacey Act, importation and interstate transport of animal species determined to be injurious is prohibited without a federal permit.
What does CatX mean for you?
CatX relieves FWS of the requirement to consider economic and social impacts as part of the “human environment” under NEPA. While not every listing decision under the Lacey Act will have significant economic and social impacts, some listings would affect broad segments of the economy and millions of citizens across every state.
For example, the recent listing of four constrictor snakes as injurious species has had crippling economic impacts. (Four additional species have been listed, but that action has been stayed by a court injunction.) According to FWS’s own economic analysis, the “annual retail sales losses for” listing the four constrictor snakes “are estimated to range from $3.7 million to $7.6 million.” Herpetoculture industry estimates range as high as, “$76 million to $104 million,” with much of this impact falling disproportionately on small businesses.
These impacts on the “human environment” will only worsen now that FWS has finalized CatX and applies it forward. FWS maintains an “extraordinary circumstances” exception to CatX. However that exception doesn’t include in its criteria, actions with high economic impacts. The careful consideration of economic impacts, which is currently required by NEPA, is especially important in Lacey Act decisions because the act, on its own, doesn’t explicitly require FWS to consider economic impacts in listing or permitting decisions.
Why did U.S. Fish and Wildlife Service enact CatX?
From all appearances, FWS intends to use CatX as a tool to pursue mass listing of species as injurious. Prior to CatX, it would have been difficult, if not impossible, to enact large scale listings. This rule modification could signal difficulty, not only for businesses, but for researchers and institutions that work with commercially viable species that may be targeted. The difficulty in procuring permits necessary to transport listed species across state lines will significantly increase costs to already beleaguered and underfunded research and educational programs. And because of the low priority FWS places on resources and staff for an already taxed permitting process, the listing en masse of species will likely result in an ever increasing backlog of permit applications.
History of CatX
— July 1, 2013- FWS publishes an announcement in the Federal Register of their intention to streamline the listing process to add “injurious” species to the Lacey Act by removing NEPA requirements.
— July 17, 2013- U.S. Herpetoculture Alliance leads a coalition of small business stakeholders and zoological associations to Washington, DC for meetings with the Small Business Administration and Congressional leadership to secure support for opposing CatX.
— July 31, 2013- closes initial Public Comment period.
— January 21, 2014- reopens Public Comment period.
— February 21, 2014- closes final Public Comment period.
— October 29, 2015- FWS publishes the final rule in the Federal Register to add a categorical exclusion (CatX) for listing species as “injurious wildlife” under the Lacey Act.
USARK Lawsuit Challenging Authority of the Lacey Act to Prohibit Interstate Transport — In 2011, when I was CEO of the U.S. Association of Reptile Keepers (USARK), I led the fight against the listing of nine constrictor snakes as injurious under the Lacey Act. During the course of many visits to Capitol Hill, I met with George Sugiyama, Chief Minority Counsel for the Senate Environmental and Public Works (EPW) Committee. Mr. Sugiyama suggested to me, that in his legal opinion, FWS under the Lacey Act, did not have the authority to restrict interstate transport of species listed as injurious. I loved the simplicity of his argument and directed USARK’s counsel to further research and vet the idea. Subsequently, we hatched a plan, and created a blueprint for a lawsuit challenging the FWS’ authority to regulate interstate transport. USARK filed that lawsuit against Interior Secretary Sally Jewell (USARK v. Jewell et al.) in the Federal District Court of Washington, DC about 11 months after I left the organization, in December of 2013. Final briefs are due February 22, 2016. Oral arguments will follow.
If USARK is successful challenging the authority of FWS to regulate interstate transport, the threat of CatX to zoos, herpetoculture, etc. will largely be negated. If FWS has no authority to regulate interstate transport, they cannot require a permit to do so. However, if the lawsuit fails outright, or on appeal, FWS will be in a position to list species arbitrarily and en masse, disrupting the ability of interested parties to move listed species across state lines, and wreaking economic havoc.
All Amphibians to be Listed as Injurious?
On September 17, 2010 the FWS published a Notice of Inquiry in the Federal Register “To List All Live Amphibians in Trade as Injurious.” The consensus has been that the process would be far too labor intensive and costly for FWS to list all amphibians in a single rule making. However, with the recent enactment of CatX, FWS could “streamline” the process necessary for a mass listing of species. Consider this aggressive timeline since last Spring:
- May 14, 2015– Center for Biological Diversity and SAVE THE FROGS presents a petition to FWS to, “Institute an Emergency Moratorium on Imports of All Live Salamanders,” and “To List All Live Salamanders in Trade as Injurious.” The petition cites the highly controversial “Broken Screens” report from the Defenders of Wildlife, and the more recent Martel et al., 2014, published in Science Magazine.
- August 10, 2015– FWS closes the Public Comment period on their Salamander Peer Review Plan to list salamanders as “injurious.”
- October 29, 2015– CatX is enacted to “streamline” the process for listing “Injurious Wildlife” under the Lacey Act by removing NEPA requirements.
It appears that a proposed rule listing multiple amphibian species is forthcoming. CatX would put any rule on the regulatory fast track.
Regardless of the outcome of USARK v. Jewell et al., or a potential amphibian listing, it is clear that FWS is comfortable taking actions that shortcut accepted administrative procedures and NEPA, in order to realize their own politicized agenda. Regulatory hurdles were put in place for a reason, to avoid arbitrary decision making by agency personnel, and to protect American citizens, business owners and organizations from being run over by their own government. CatX sets a poor precedent for due process/fairness in the regulatory environment. Stakeholders may be dealing with the consequences of this ill-gotten rule for years to come.
“I welcome questions below in the comment section. I’m always happy to clear confusion resulting from the actions of FWS, or potential implications for you. Let me know.” ~Andrew
Andrew Wyatt is a government affairs and policy consultant that works exclusively in the wildlife sector.
“The Lacey Act and other wildlife issues are highly charged and contentious. I specialize in working with clients to employ campaign style tactics to change hearts and minds on vital issues in the wildlife sector. Please follow The Last Word for insight and analysis particular to the 21st century wildlife sector. If you would like to discuss the potential advantages of running a targeted issue campaign, and/or a comprehensive government affairs strategy, please call or email me.” ~ Andrew Wyatt
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