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Prof. Colburn testifies before U.S. Senate subcommittee on mitigating development impact on fish, wildlife, plants & their habitat

UNIVERSITY PARK, Pa. – Penn State Law professor Jamison E. Colburn testified on Sept. 21 before the U.S. Senate Committee on Environment & Public Works Subcommittee on Fisheries, Water, and Wildlife regarding proposed revisions to the U.S. Fish and Wildlife Service’s Mitigation Policy.

The oversight hearing centered on the agency’s recommended changes to its policies aimed at alleviating some of the adverse effects of development on the country’s wildlife and their habitats.  The revisions, the first since 1981, were announced in March and broaden the policy’s scope to include larger-scale stressors, including climate change. The changes would also allow the agency to apply its Mitigation Policy to protect wildlife included under the Endangered Species Act, which was excluded from the original 1981 policy.

Colburn testified that the revised policy aligns with the Fish and Wildlife Service’s dual charge to both enforce statutory standards and provide recommendations, when appropriate. The new policy will help provide a framework within which the agency can apply this discretion.

“Policies of this kind inevitably involve administrative discretion that subordinates must deploy otherwise on an ad hoc basis,” Colburn said. “A single guidance of this kind that informs all actions, service-wide, resolving the agency’s advice on mitigation and approach to mandatory mitigation can bring a level of transparency and predictability to agency operations that would otherwise be lacking.”

Noting that the new Mitigation Policy will affect how the agency acts under nearly a dozen federal statutes, Colburn honed in on two, in particular: the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA). Both laws call on the Fish and Wildlife Service to make mitigation recommendations or provide expert advice to fulfill statutory requirements, and Colburn argued in his testimony that the revised policy will regularize and improve the quality of its exercises of discretion in these instances by providing structure and justification for such acts of discretion.

Finally, Colburn noted that the courts have generally been in support of federal agency efforts to adopt policies that aim “to regularize agency uses of discretion, increase agency transparency, and connect individual cases in the field to broader agency priorities and agency expertise latent within the institution.”

Colburn, the Joseph H. Goldstein Faculty Scholar and professor of law at Penn State Law, is a scholar of environmental law and policy and the author of more than a dozen articles, book chapters, and monographs on the Endangered Species Act and the National Environmental Policy Act. Prior to joining academia, he served as assistant regional counsel at the U.S. Environmental Protection Agency. He is the founder and editor of the NEPA Lab, a website devoted to innovation and experimentation with the National Environmental Policy Act.

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