Last week, final rules from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, "the Services") impacting key components of the Endangered Species Act (ESA) were published in the Federal Register.1 The new rules represent some of the most significant changes to the Act's administration in decades. The finalized rules accomplish the following, among other things:
- Eliminate a "blanket rule" that afforded threatened species the same protections as endangered ones by default.
- Set a list of circumstances that do not warrant designating "critical habitat" to protect species, including a new requirement that an unoccupied area must have one or more of the physical or biological features essential to the species' conservation in order to be considered as potential critical habitat.2
- Clarify that agencies may collect data on the economic costs of protected species designations, as long as such information does not influence the listing decision.
- Provide "alternative consultation mechanisms" that other agencies can use to consult with the Services when the other agency carries out an action (e.g., issues a permit or provides funding) that may affect a listed species or its habitat, including streamlining site-specific consultations for programmatic agency activities.
- For the first time, set deadlines (60 days) for informal agency consultations to expedite the interagency consultation process.
According to Secretary of the Interior David Bernhardt, the revised rules will "increase [the] transparency and effectiveness" of implementing the ESA. The rules may also result in less stringent protections for some species over time, accelerated listing and delisting decisions and project approvals and cost savings for industry. Indeed, the revised rules replace the presumption of protection for threatened species with determinations made on a "case-by-case" basis, with the stated intent of reducing regulatory burdens on farmers, ranchers, developers and others as species recover. Meanwhile, the changes to sections governing the interagency review process will alter the way interagency consultations are conducted, reducing the requirements for consultation with wildlife agencies and others prior to permitting oil and gas and logging operations.
Although these revisions may well be a welcome change to those caught in the crosshairs of the ESA, environmental groups and others will undoubtedly bring suit to challenge the rules' provisions. Indeed, barely a week after the Services released the prepublication versions of the new rules, seven environmental groups, including the Sierra Club and the Center for Biological Diversity, filed a joint lawsuit in the Northern District of California challenging the rules.3 In addition, the Attorneys General of Massachusetts and California have already indicated that they intend to sue.4 Finally, Senator Tom Udall (D-NM), ranking member of the Interior and Environment Appropriations Subcommittee, suggested that Congress may consider using the Congressional Review Act to veto the new rules.5
Footnotes
1 Endangered and Threatened Wildlife and Plants; Regulations for Prohibitions to Threatened Wildlife and Plants, 84 Fed. Reg. 44753 (Aug. 27, 2019); Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation, 84 Fed. Reg. 44976 (Aug. 27, 2019); Endangered and Threatened Wildlife and Plants; Regulations for Listing Species and Designating Critical Habitat, 84 Fed. Reg. 45020 (Aug. 27, 2019).
2 This change addresses the Supreme Court's recent ruling in Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018).
3 No. 3:19-cv-05206 (N.D. Cal. Aug. 21, 2019).
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