Recently the administration announced an effort to speed up the implementation of certain projects through the use of emergency consultation. In 2022 I wrote a post on emergency consultations under 7(a)(2) of the Endangered Species Act (Act) [Blog: Emergency Consultation]. I suggest you read that post for an introduction and understanding of the background and traditional use of emergency consultations.

On January 20, 2025 President Trump declared a national energy emergency and directed the heads of executive departments and agencies, including the Secretary of the Interior, to “identify and exercise any lawful emergency authorities available to them, as well as all other lawful authorities they may possess, to facilitate the identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources, including, but not limited to, on Federal lands”. (Executive Order (EO)14156, titled “Declaring a National Energy Emergency”).

Shortly after the energy emergency declaration, a document was released in April 2025 titled “ALTERNATIVE PROCEDURES FOR INFORMAL SECTION 7 CONSULTATION” describing alternative procedures set out by the Acting Director of the Fish and Wildlife Service (Paul Souza). View the document here. As mentioned earlier, the idea by the administration is to use these procedures to reduce perceived delays in the consultation timeline.

These alternative procedures flow from a phrase in the regulations regarding consultations on emergencies. The administration’s establishment of a national energy emergency has now made this regulatory phrase relevant.

Alternative Procedures

Interestingly, emergency consultation is not mentioned by Congress in the 1973 Act. The concept of emergency consultations was added to the implementing regulations in 1986 (50 CFR 402.05). The Act describes some exceptions regarding presidentially declared disaster areas [Act Section 7(p)] but they have to do with authorities of the Endangered Species Committee after a Jeopardy finding – not the requirement for consultation generally.

The regulations at 50 CFR 402.05 include this statement “…(a) Where emergency circumstances mandate the need to consult in an expedited manner, consultation may be conducted informally through alternative procedures [emphasis added] that the Director determines to be consistent with the requirements of sections 7(a)-(d) of the Act. This provision applies to situations involving acts of God, disasters, casualties, national defense or security emergencies, etc.” [See: 402-regulations-May-2024-redline.pdf]

…A slight rabbit trail regarding “delays in consultation”

For decades, action agencies have complained about the time the consultation process takes for projects. The Services usually point out that their records show that consultations are routinely concluded within the time required by the Act and the regulations. But really, the agencies and Services are talking past each other. Here’s why.

Congress established that consultation would be completed in 90 days after initiation and then a biological opinion issued “Promptly after conclusion of consultation…” (Act 7(b)(3)(A)). In 1986 the regulations established “promptly” as being 45 days for delivery of the opinion (50 CFR 402.14(e)). There are allowances for documented and agreed upon extensions described at 50 CFR 402.14(e) if necessary. Congress understood that the information relied on for consultation would not be perfect or necessarily complete at the time of consultation but did not require agencies to wait for better or more complete information. (For additional discussion of Congress’ language, see my earlier post called “Benefit of the Doubt”). The preamble to the 1986 regulations echoed Congress’ thoughts and discussed Service requests for surveys and additional information (See 1986 Fed Reg notice at 1986-regs-consultation-final-FR-1986-06-03.pdf, page 19946.)

Records and the reports on timeliness of consultation completion by the Services don’t include what for some projects is a long period of time between the first transmission of a biological assessment to the Service and the Services’ eventual decision that the assessment is adequate/sufficient to initiate the Act’s 90-day consultation period (“Starting the consultation clock”). There are myriad reasons for this often extensive amount of additional time. I could spend hours talking about those reasons, i.e. agency culture and authority, interpretation of regulatory language regarding “sufficiency,” conflicting missions, workload management, lack of training, paranoia over legal risk, etc., but suffice it to say that this lengthy period (in some cases months and even years) often described by action agencies as a delay in consultation, isn’t reflected in the Services’ reported consultation delivery times. This has been a source of frustration by many of those agencies for years.

Back to the topic at hand…

Over at least the last 35 years, there have been various attempts to speed up 7(a)(2) consultation (and the National Environmental Policy Act process) by every administration. This one using emergency consultation is the latest. What makes it somewhat unique is that it uses already existing regulatory language and mechanisms. Will this be effective? I don’t know. Will it be subject to some court case? I’d bet on it, because in section 7 there is always some group willing to sue over changes in regulation, policy, or practice.

What does this means for the practitioner?

For Service practitioners -- not much. Ultimately the requirement for complying with Congress’ direction in 7(a)(2) is the action agency’s responsibility, not the Service’s (unless the Service is the action agency). For action agency practitioners -- it means you should familiarize yourselves with the alternative procedures document linked above. It includes a required form for using the procedures. One note of caution -- the document mentions “…informal expedited section 7 consultation…”). This is NOT referring only to actions that are seeking a concurrence for a “may affect, but not likely to adversely affect” project effects determination at the end of typical informal consultation. The procedures document is merely referring to an informal (common meaning) approach of consultation for the emergency project regardless of the degree of effects to the listed species or designated critical habitat. I also suggest that all practitioners keep good records of how they proceed in using emergency consultation for the project record. This is always good practice, and in this case, it is especially important.

One other tip

Chapter 8 of the 1998 Consultation Handbook discusses emergency consultation. Its coverage is far from perfect, but it is good for general background. One thing it says is “If this initial review indicates the action may result in jeopardy or adverse modification and no means of reducing or avoiding this effect are apparent, the agency should be so advised, and the Services’ conclusions documented.” [emphasis in original]. Action agencies that are in communication with the Services for an action under alternative procedures should make sure to specifically ask about the Jeopardy or the Destruction or Adverse Modification question and note the Service’s response (or non-response) for the project record.

A final thought

The key to any successful consultation is open communication between practitioners. Keep communicating. Even if leaders are using creative or unusual approaches to try and speed up the process, keep your eyes on Congress’ simple direction expressed in 7(a)(2). “…insure that any action authorized, funded, or caried out …is not likely to jeopardize…any endangered or threatened species, or result in the destruction or adverse modification of habitat…determined…to be critical…”