In a previous post, I talked about how landmanagers and developers can now trade USFWS-certified credits representing the conservation of threatened, but not yet ESA-listed, species habitat. I gave a fictional example of a southern Oregon farmer, John Johnson, getting credit for planting habitat for the red-bearded Jackson County song lark. I pointed to a recent FWS rule allowing for these sorts of schemes, but beyond the tale of Farmer John and some related Clean Water Act-focused pre-compliance mitigation projects, I was in short supply of real world examples.
Then I heard about Texas's Dune Sagebrush Lizard (DSL). I'm trying to sift through a recent report from Ecosystem Marketplace on efforts to protect the DSL before the FWS lists it. About a year ago, the Texas Legislature authorized the Comptroller of Public Accounts to establish and oversee pre-compliance species habitat conservation programs, better known as Candidate Conservation Agreements with Assurances (CCAAs). What the heck is a Comptroller of Public Accounts, you ask? The Comptroller's mission is to "Keep Texas First" by watching and responding to federal regulations that harm Texas businesses. Indeed, the stated goal of the legislation, Senate Bill 1, was to balance conservation with Texas's economic needs, and in the case of the DSL, that means the Texas Oil and Gas Association and ranchers. The TCP's steering committee is more or less stacked with those who have interests in either developing oil and gas wells or raising livestock in the DSL's native habitat.
On behalf of the group, Comptroller Susan Combs wrote in during the public comment period on the TCP. She wrote that listing the DSL - with little science available to justify such a move - would come at the expense of Texas's biggest oil producing region: "I am emphatically against the FWS listing the DSL as an endangered species as there is not yet enough scientific data to support such a determination. We do not yet have baseline population data for the species." Either way, Texas was ready for the feds, and that was the impetus for the TCP: "However, it was absolutely critical that our state be prepared for a possible listing decision for the DSL." Coombs ends by suggesting that the TCP could be a model nationally for FWS.
Ultimately, because of the TCP, FWS decided not to list the DSL as endangered. FWS decided against listing after finding something like 88% of the DSL's habitat, including the energy-rich Permian basin in Texas, would be under some form of protection. Here's how the TCP works: landowners can choose to enroll, confidentially, in the TCP by deciding what practices they would like to do, including managing grazing or removing invasive brush. Indeed, "most of the conservation practices called for in the TCP are already common agricultural practice." Landowners can also drop out at anytime. However, the plan does require oil and gas developers to mitigate for DSL impacts.
This is where the credits come in. Oil and gas companies can contract with landowners to enhance DSL habitat or they can even contribute to species tracking efforts. I'm not sure who goes about making sure that the energy firms' impacts square with what benefits the ranchers bring - measurement and enforcement certainly weren't prominent features in anything I read from the Comptroller. They are in the Plan itself, however, as the Ecosystem Marketplace article's author, Jemma Denny, notes. She draws out some of the big difficulties with the TCP. No one really knows much about what the lizard needs, which gives the TCP steering committee leeway in being loose about what it requires itself to do. First, unlike other species banking schemes, long-term conservation easements aren't required. Second, there really aren't any specific "Conservation Measures" that link up impacts with benefits to ensure no net loss mitigation. No one knows how many lizards can be saved by removing invasive brush or restoring habitat at old drilling pads. Ultimately, the TCP, especially the trading mitigation credits part, is really a shot in the dark.
But here's what I'm bringing it back to: In my previous post on pre-compliance banking I got a little philosophical - I pondered what CCAAs mean for environmental governance. One of the things I noted in particular was that pre-compliance banking didn't really mean regulatory relief for agencies - they'd likely still have to be drawn into verifying some measure of habitat. And those making habitat impacts would still be under some sort of pressure from the feds. To be overly vulgar about it, in pre-compliance banking FWS is still holding a gun to impacters' heads: you've got to comply, ESA listing or no, or take your chances.
After reading up on the DSL, I think my rough conclusions need nuancing. What the TCP shows us about pre-regulatory banking is, in general, that context is important. It matters that the DSL lives in a state where rich energy companies hold a lot of sway and where the state government is distrustful of federal regulation. More specifically, TCP shows us that regulatory relief is always a matter of relief for whom? For the oil and gas companies, for sure, if they can get away with what looks to be a framework for spotty conservation. It's relief even for the FWS, if they don't have to go through the hassle of a listing, and don't care about upholding rigorous conservation measures. Instead, I wonder what developers' and agencies' relief dumps off on to in the end? Whether the lizards can get relief from fracking is the real question.
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