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Lost protection for threatened and endangered species may be brought back from extinction. At least that’s what wildlife advocates are currently trying to accomplish through the courts and Congress, even though the initial momentum around lawsuits challenging the Trump administration’s revisions to the Endangered Species Act (ESA) has been throttled by the ongoing pandemic.
Last year, the Trump administration published regulations weakening more than 45 years of protection provided under the ESA. While no species has lost protection during the first six months that the new rules have been in effect, defenders of the ESA argue that just the fact that the agencies are using the new rules is enough to prove injury, as in, the regulations themselves cause harm. A threat of injury is enough, they say for plants and animal species at risk of dying out.
The new rules governing ESA, which took effect in October, remove automatic protection for “threatened” species, that is, species that are at risk of becoming endangered. And they allow agencies to consider the economic impacts when determining whether or not a plant or animal needed protection, whereas the original law required only scientific considerations. And the new rules limited the FWS’ ability to designate “unoccupied” critical habitat — that is, areas where an endangered or threatened species does not currently live, but which may be part of its historical range and therefore critical to the species’ future survival.
The change may prevent FWS from placing restrictions on some property owners.
Conservation groups and several states have wasted no time filing lawsuits against the revisions to the ESA, while sympathetic legislators are pushing legislation to overturn them. The ESA requires the federal government to write and enforce regulations to protect species in danger of or “threatened” with extinction in the “foreseeable future” and their habitat. The federal agencies charged with implementing the ESA are the Interior Department’s Fish and Wildlife Service (FWS), which is responsible for plants, wildlife, and inland fisheries, and the Commerce Department’s National Marine Fisheries Service (NMFS), which implements the ESA with respect to ocean-going fish and marine mammals.
Right now, there are three lawsuits challenging the revisions pending before federal Judge Jon Tigar, an appointee of President Barack Obama, in Oakland, California. The arguments on both sides so far focus on legal procedure, rather than the merits of defending plants, wildlife, and habitat. Plaintiffs charge that the government didn’t follow the National Environmental Policy Act (NEPA), which requires federal agencies to take into account the potential environmental consequences of any construction project — ranging from highways to airports, to dams and pipelines, to management of federal lands — that they commission or fund; and the Administrative Procedures Act (APA), which governs how federal agencies go about implementing rules.
A coalition of environmental groups, including the Center for Biological Diversity (CBD), Earthjustice, Defenders of Wildlife, the Natural Resources Defense Council (NRDC), filed the first suit, charging that the “revised rules violate the plain language and overarching purpose of the ESA; they also lack any reasoned basis and are arbitrary and capricious under APA.” The groups also complain that the final rules include matters not included in the original proposal that the public didn’t get a chance to comment on.
The California-based Animal Legal Defense Fund (ALDF) filed another suit, alleging the same violations. ALDF complains that a provision removing automatic protection for threatened species and replacing it with a policy of writing species-specific rules won’t work, as there’s no requirement to come up with such rules, let alone timetables to write them. ALDF also charges that the new criteria don’t include “recovery” as a reason for “delisting,” or ending protection for a species.
Finally, 19 states, plus the District of Columbia, and New York City filed the third suit. The states are making a similar case as the conservation groups, arguing that they have a vested interest in protecting their environments and species within state boundaries, such as the California condor in the Golden State, whales in Washington State, the Mojave desert tortoise in Nevada, and the whole balance of the New Mexico desert.
California’s AG, Xavier Becerra, for instance, says the state chimed in with the conservation groups because the “state of California has a sovereign interest in its natural resources and is the sovereign and proprietary owner of all the state’s fish and wildlife and water resources, which are state property held in trust by the state for the benefit of the people….”
On the other hand, several farmer and other landowners groups and 13 other states have asked to join the defense, saying they can’t rely on the federal government to represent their side because a new administration could change policy. Unsurprisingly, all the plaintiff states are represented by Democratic attorneys general (AGs), while all those seeking to back the government are represented by Republican AGs.
The federal government, in its response to the suits, says the plaintiffs haven’t proved injury and lack standing to sue. It said the plaintiffs did not show that any harm has been done because of the new rules. “Plaintiffs speculate how the services will apply these revisions in future administrative processes, yet it is far from clear that this application will ever harm plaintiffs’ interests,” the federal response brief states. “The revisions are not retroactive and do not change any current protections for already-listed species.”
Federal lawyers also say APA and NEPA requirements don’t apply because the changes are “of a legal, technical, or procedural nature,” and that any potential impacts were “too broad, speculative and conjectural for meaningful analysis” and that “no extraordinary circumstances were present.”
Judge Tigar conducted a hearing on the feds’ motion to dismiss the suits in February but hasn’t yet ruled on it.
“Judge Tigar was very engaged, questioning all parties closely,” Earthjustice lawyer Kristen Boyles said via email. The Covid-19 crisis appears to be delaying action, she suggested.
Lawsuits filed previously to force FWS to comply with the ESA have faced mixed results. As reported in Earth Island Journal last spring, NRDC sued to force FWS to set aside habitat for the rusty patched bumblebee, which the agency never did though the species had already been listed as endangered. FWS settled the case, agreeing to propose habitats to set aside by July 31 of this year and finalizing them by the same date next year.
But a federal judge in Alaska ruled in September against CBD in its suit charging that FWS improperly failed to protect the pacific walrus when the agency in 2017, reversed its 2011 decision that the walrus should get listed as an endangered species. Judge Sharon Gleason ruled the FWS had adequately updated its projection of sea ice loss and she accepted FWS’ determination that walruses could adapt to projected loss. CBD is appealing the decision.
“The walrus appeal is moving forward, but [we have] no updates so far,” says Noah Greenwald, CBD endangered species director.
And if courts won’t act to protect the ESA, Congress might. In late January, the House Committee on Natural Resources approved the Protect America’s Wildlife and Fish In Need of Conservation Act of 2019, or PAW and FIN Act, (HR 4348), which would undo the Trump Administration’s revisions to the ESA. The bill would restore automatic protection for threatened species and prohibit consideration of economic impact when determining whether to list species.
Sen. Tom Udall (D-New Mexico) introduced a companion measure in the Senate (S. 2491) last September. Nineteen other senators, all Democrats, signed on as co-sponsors. The bill is pending before the Committee on Environment and Public Works. But Republicans control the Senate and haven’t moved the bill.
Meanwhile, the Congressional Western Caucus introduced a set of 17 bills it says are designed “to modernize ESA to better protect species, and to treat property owners, states and local stakeholders as partners rather than obstacles.” The bills would make it easier to delist species based on information gathered from outside groups such as state governments, as opposed to federal studies. It would also require consultation with states before listing species and remove deadlines for FWS to reply to petitions if too many unsupported ones stack up. The caucus of representatives dedicates itself to fighting for private property rights, energy security, and local control. It has made “modernizing” ESA a priority this year.
Business and landowner groups have endorsed the package, including the US Chamber of Commerce, National Home Builders and the Family Farm Alliance. But Natural Resources Chairman Raul Grijalva (D-Ariz.) has no intention of bringing the bills up, Committee Communications Director Adam Sarvana says.
The revisions, incidentally, took effect a month late — on October 28 last year instead of Sept. 28 as had been scheduled — since the FWS and NMFS found they needed more time to train staff about Section 7, which requires coordination with other federal agencies when implementing ESA regulations. Section 7 requires that other federal agencies, such as the National Park Service, examine whether any projects they undertake could kill or endanger protected species or critical habitat. If these agencies find a problem, they have to work with FWS or NMFS to ensure that the protected species and habitat are not harmed.
“Section 7 can be complex even on a good day. We needed an extra 30 days to explain it, to do a full roll out,” says FWS Public Affairs Specialist Brian Hires.
And now, given the Covid-19 pandemic, which is creating a greater logjam than usual in courts, enforcement of the new rules, as well as any rulings on these lawsuits may be delayed even further.
FWS, however, is still publishing notices in the Federal Register of its actions, but agency officials aren’t in their offices answering phones. When asked about how the crisis is affecting work, spokespersons for both FWS and NMFS did not respond to telephone or email inquiries other than to say they would get back to us.
“The Trump administration was doing its best to not enforce the ESA prior to Covid-19, so I imagine that is continuing and likely even less is getting done to help wildlife,” Greenwald says.
Any effort to overturn the revisions by Congress, too, has been delayed by the crisis. Congress effectively went on extended recess in April, as the Capitol complex became a haven for transmitting the coronavirus. It resumed session in early May but is preoccupied with dealing with the economic fallout and public health issues caused by the contagion, leaving little time for non-deadline issues.
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