Economic impacts in ESA critical habitat designations

Vol. 47 No. 2

Matthew J. Sanders and Alicia E. Thesing are clinical supervising attorneys and lecturers at the Environmental Law Clinic at Stanford Law School. Mr. Sanders is vice chair of the Section’s Public Land and Resources Committee and Government and Private Sector Innovation Committee and was formerly an appellate attorney in the Environment & Natural Resources Division at the U.S. Department of Justice. Ms. Thesing was formerly counsel for the cities of San Jose, Palo Alto, and Mountain View, California.

On July 7, 2015, the Ninth Circuit issued a published decision in Building Industry Association of the Bay Area v. U.S. Department of Commerce. The decision upholds the designation of more than 13,000 square miles (8.6 million acres) of critical habitat for the federally threatened green sturgeon. The decision holds that, under section 4(b)(2) of the Endangered Species Act (ESA), the National Marine Fisheries Service (NMFS) has discretion about how it considers the economic impacts of designating critical habitat. The court also ruled that subsequent NMFS decisions not to carve out certain areas from previous designations are unreviewable. Finally, the court confirmed the long-standing rule that environmental review is not required for critical habitat designations under the National Environmental Policy Act (NEPA). The decision will give federal agencies more leeway in making critical habitat decisions.

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