The Biden administration’s new Endangered Species Act rules unify right, left and middle on one thing.
Everyone knows that lawsuits come next.
“It’s often the case that [ESA] policies get litigated from both supporters and opponents, who say that either they went too far or didn’t go far enough or are just going down the wrong road entirely,” said Jonathan Wood, vice president of law and policy at the Montana-based Property and Environment Research Center.
The challenges will target specific rule provisions, such as one that effectively gives threatened species the same protection as endangered species. The specific battles, though, will also be part of a broader fight over the power federal agencies have to impose regulations and then defend them in court.
The legal terrain on which this happens is shifting, as the Supreme Court in recent years has cracked down on federal agencies that it perceives as overstepping their clearly established congressional authority. The court is also considering walking back the Chevron doctrine, an important legal tool for federal agencies to defend their regulatory decisions.
“I think it’s safe to say the Fish and Wildlife Service has relied upon Chevron deference in defending ESA regulations for many, many decades,” said Charles Yates, an attorney with the Pacific Legal Foundation, a property rights-focused group that has been critical of the Biden administration’s ESA policies.
Named for a prior Supreme Court case, the 40-year-old Chevron doctrine gives agencies like the Fish and Wildlife Service and NOAA Fisheries leeway to interpret their power under ambiguous statutes.
Members of the Supreme Court’s conservative 6-3 supermajority have suggested, or in some cases explicitly declared, that they are ready to roll back this level of deference.
“If that avenue is not available to them going forward, that will have significant implications for the way the Endangered Species Act is implemented,” Yates predicted.
The rules that FWS and NOAA Fisheries rolled out last week reverse some — but not all — of a raft of regulations crafted during the Trump administration.
They cover a wide array of areas. They slightly redefine “foreseeable future,” which helps guide decisions on whether a species should be listed as threatened; restore the pledge that ESA listing decisions will be made without consideration of economic impacts; and bring back a “blanket rule” that automatically extends the endangered level of protection to threatened species while allowing special rules to be written providing some specific leeway.
Gina Shultz, acting assistant director of ecological services at FWS, said “certainly the most innovative of the changes” in the ESA rules package deals with the issue of “reasonable and prudent measures.”
These are steps that the Biden administration may direct in order to cushion the effect of an industry that accidentally kills or injures a protected species, which FWS calls an “incidental take.” FWS can require mitigation from ranchers or energy developers or others that happen to harm protected plants or animals; for instance, they can be required to conserve additional habitat. The new rules will broaden the areas where such measures can be ordered, which Shultz said “will provide greater opportunity to minimize the impact of the incidental take on the species.”
But innovation also invites litigation, and critics have already cited chapter and verse in declaring the move oversteps the confines of the statute.
“This unprecedented and unauthorized attempt to significantly expand the Services’ conditioning authority cannot be reconciled with the ESA’s express language,” wrote Kara Moriarty, president and CEO of the Alaska Oil and Gas Association.
Environmental groups have declared they are likely to sue the Biden administration for not being protective enough.
Both NOAA Fisheries and the Fish and Wildlife Service declined to comment.
It was litigation pursued by multiple environmental organizations before the U.S. District Court for the Northern District of California that struck down the Trump administration’s ESA rules. A federal appeals court subsequently kept the regulations on the books while the Biden administration rewrote them.
Any new lawsuit will have to wait until the Biden rules are formally published in the Federal Register and a 30-day waiting period passes. Tactical choices must be made, from where to sue to which plaintiffs lead the way.
“We are highly likely to challenge the Biden rules, as well as the many aspects of the Trump rules that they chose not to change,” said Brett Hartl, government affairs director for the Center for Biological Diversity, one of the groups behind the Northern District of California lawsuit against the Trump administration changes.
The Southern Environmental Law Center said the Biden rules missed an opportunity to protect plants and animals made vulnerable by climate change.
“Here in the South, there is so much at stake,” said Ramona McGee, senior attorney and leader of the center’s Wildlife Program. “Mass extinction threatens our globally significant biodiversity, including the more than 250 species protected by the ESA in our region. It’s disappointing that the administration missed this opportunity to take bold action and effect meaningful, species-saving change.”
Levels of protection
Litigation is certain to dog one of the most important ESA rule changes, involving the difference in protection levels between threatened and endangered species.
The ESA allows “4(d) rules” for threatened species that allow exceptions to the normal ESA prohibition on killing or harming listed plants and animals. A 4(d) rule, for instance, might allow “take” of a species resulting from streambed restoration or forest thinning.
The Trump administration ended a 40-year policy of extending to threatened species the same protections given to those considered endangered. By restoring this “blanket” presumption, conservative critics say the Fish and Wildlife Service overstepped its authority.
“The Service identifies no clear statement authorizing it to exercise such sweeping power. Nor could it,” the Pacific Legal Foundation and American Forest Products Association wrote last year, adding that reimposition of the blanket 4(d) rule “would not withstand judicial review.”
Yates said that in addition to the likely 4(d) rule challenge, there are legal problems with how the rules change the consideration of critical habitat that is currently unoccupied by the species.
The revisions remove the requirement that unoccupied areas have a “reasonable certainty” both to contribute to the species conservation and to contain one or more features essential to the species’ conservation. These changes also remove the requirement to designate all possible occupied areas as critical habitat before considering any unoccupied areas.
“The long and short of it is the rules have changed since the Trump administration and the long-standing approach, to make it less burdensome on the service to designate unoccupied critical habitat even when there is sufficient amount of occupied critical habitat,” Yates said.
Unoccupied habitat
Legal wrangling over the Biden administration’s ESA changes could bring the question of unoccupied critical habitat back to the Supreme Court.
In comments last summer on the proposed rulemaking, the Republican attorneys general of Alabama and 17 other states said the rules attempt to revive a theory that they say the Supreme Court “poured cold water on” in 2018 — the idea that unoccupied areas can be considered “critical habitat” for species.
“Of course, an area cannot be ‘habitat for the species’ unless it has the physical or biological features necessary for the species to survive there,” the states wrote. “A desert cannot be an unoccupied ‘critical habitat’ for an alligator if there is no water for the alligator to live in.”
The 2018 ruling, Weyerhaeuser v. Fish and Wildlife Service, instructed a lower court to take a closer look at the statutory meaning of “habitat” to decide whether the agency had imposed overly broad protections for the dusky gopher frog in Louisiana.
Private landowners and a timber harvester had argued that the critical habitat designation unlawfully included lands that are not currently habitable by the rare amphibian, an animal so endangered that most of its population lived around a single pond in Mississippi.
Weyerhaeuser was decided by a unanimous Supreme Court, without the presence of its newest member at the time, Justice Brett Kavanaugh. Since that time, Kavanaugh has taken his place on the bench and the court has swung to a 6-3 conservative majority, with the arrival of Justice Amy Coney Barrett in 2020 to replace the late Justice Ruth Bader Ginsburg.
FWS and NOAA Fisheries said in their proposal that they recognized the importance of the Supreme Court’s 2018 decision, but the red state officials said the federal agencies instead revoked Trump-era changes that brought them into compliance with the ruling,
“Their actions bely their assurances,” the GOP attorneys general wrote.
