September 24, 2020

Summer 2020 Sees Big Changes to Protections for Endangered Species

Katharine Bleau

This summer, the Trump administration advanced two significant administrative changes curtailing endangered species protections. First, relying on the COVID-19 declared national emergency, President Trump signed an executive order (EO) directing federal agencies to accelerate infrastructure projects by limiting environmental review requirements under the Endangered Species Act (ESA) and other laws. Exec. Order No. 13,927, 85 Fed. Reg. 35,165 (June 4, 2020). Second, the Trump administration proposed a definition for the previously undefined term “habitat” under the ESA, restricting critical habitat considerations to land areas presently suitable. Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat, 85 Fed. Reg. 47,333 (Aug. 4, 2020) (to be codified at 50 C.F.R. § 424). Both changes significantly weaken protections for endangered species, as discussed below.

EO on Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities

Signed on June 4, 2020, by President Trump, the EO shortens environmental review time frames for certain projects, namely infrastructure projects such as new mines, highways, and pipelines. 85 Fed. Reg. at 35,165–67. The EO also invokes implementing regulations, including emergency consultation procedures under the ESA, to bypass standard environmental analyses. Id. at 35,168.

Authorized pursuant to the National Emergencies Act, the EO affects how agencies apply the ESA, National Environmental Policy Act (NEPA), and other environmental laws. Id. at 35,167–70. By declaring a national emergency, the president can authorize “action with significant environmental impact” without fulfilling standard environmental requirements. Id. at 35,167; see also Proclamation No. 9994, 85 Fed. Reg. 15,337 (March 13, 2020). The President has argued setting aside these requirements will assist the nation in promptly recovering from economic losses incurred since the coronavirus outbreak by expediting environmental review processes. Juliet Eilperin & Jeff Stein, Trump Signs Order to Waive Environmental Reviews for Key Projects, Wash. Post (June 4, 2020).

The EO attempts to expedite a variety of projects that fall under the jurisdiction of several federal agencies: infrastructure projects within the authority of the U.S. Department of Transportation; civil works projects within the authority of the U.S. Army Corps of Engineers; and infrastructure, energy, environmental, and natural resources projects on federal lands managed by the Department of Defense, the Department of the Interior, and the Department of Agriculture. 85 Fed. Reg. at 35,165–67.

Environmental groups like the Center for Biological Diversity (CBD) have expressed concern. Shortly after the EO was signed, the CBD declared plans to challenge the EO as violating the ESA. On June 9, 2020, the CBD sued the Trump administration for access to public records related to how agencies are implementing the EO and issued a notice of violation of the ESA. Letter from Center for Biological Diversity to President Trump, Notice of Violations of the Endangered Species Act Regarding Executive Order 13927 (“Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities”) (June 9, 2020). The CBD’s main concern is that the EO can be used to waive environmental laws and fast-track projects unrelated to COVID-19, endangering imperiled species. Id. at 4.

In its notice to the Trump administration, the CBD states the EO violates the ESA by instructing agencies to inappropriately apply emergency ESA consultation procedures. Id. The CBD argues an emergency rationale cannot be used as an excuse to rush or ignore ESA requirements for a broad swath of projects that seek to reinvigorate the economy and are otherwise unrelated to public health needs necessary to combat COVID-19. Id.

It remains unclear whether and to what extent companies will actually rely on the EO. Thomas Jensen, a partner at Perkins Coie, has suggested lawsuits would inevitably follow any companies’ use of the EO. Eilperin & Stein, supra. If agencies rely on the EO to avoid formal consultation procedures under the ESA, imperiled species may be irreversibly impacted. Letter from CBD to President Trump, at 5–6.

Proposed ESA Rule Defining Habitat for the First Time

A proposed rulemaking announced August 4, 2020, adds a definition for the term “habitat” under section 4 of the ESA. 85 Fed. Reg. 47,333. Although the ESA defines “critical habitat,” it fails to define the broader term “habitat.” The U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) have never filled the gap through regulations or policy until now. Id.

FWS and NMFS propose to define “habitat” as “areas with existing attributes that have the capacity to support individuals of the species.” Id. at 47,334. The proposed rule also provides an alternative definition to the one proposed:

The physical places that individuals of a species use to carry out one or more life processes. Habitat includes areas where individuals of the species do not presently exist but have the capacity to support such individuals, only where the necessary attributes to support the species presently exists.

Id.

The new rule follows the Supreme Court decision in Weyerhaeuser v. U.S. Fish &Wildlife Serv., which involved unoccupied critical habitat for the endangered dusky gopher frog. 586 U.S. ___, 139 S.Ct. 361 (2018). To help the frog avoid extinction and recover, FWS designated five land areas as critical habitat for the frog, including a privately owned 1,500-acre pine forest where multiple ephemeral ponds—essential habitat features for the frog—occurred naturally on the landscape. Final Designation of Critical Habitat for Dusky Gopher Frog (Previously Mississippi Gopher Frog), 77 Fed. Reg. 35,117, 35,124 (June 12, 2012) (to be codified at 50 C.F.R. pt. 17). Before the area could support the frog, however, the property would require forest restoration and improvements. Id. Thus, the critical issue between the parties was whether land not currently holding all the physical and biological attributes required to support a species nonetheless qualifies as habitat under the ESA. Id. at 369. The Court held that an area must broadly fit the definition for “habitat” in order to also be more narrowly considered “critical habitat,” regardless of whether the area is currently occupied by the species. Id. at 368.

By adding a definition for “habitat,” FWS and NMFS seek to directly address the issue in Weyerhaeuser. In order for FWS and NMFS to propose an area, it must first meet the definition for “habitat” before it may be considered for designation as unoccupied critical habitat for a species, consistent with the Court’s holding. 85 Fed. Reg. at 47,335. Under either proposed definition for habitat, FWS and NMFS make clear the land must be suitable in its present state to be habitat for a species. Id. Advocacy groups fear this decision will ultimately limit the amount of habitat available for protecting endangered species. Eoin Higgins, Trump Administration Rule Proposal Would Further Undermine Endangered Species Act, EcoWatch (Aug. 2, 2020).

The 30-day comment period for the proposed definitions for habitat ended September 4, 2020. FWS and NMFS received more than 150,000 comments for their review prior to publishing a final rule, which can be viewed at: https://beta.regulations.gov/document/FWS-HQ-ES-2020-0047-0001.

The proposed rulemaking is posted in full on the FWS website at: https://www.fws.gov/policy/library/2020/2020-17002.pdf.

Katharine Bleau

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Katharine Bleau is a recent graduate of Vermont Law School, where she assisted the Environmental and Natural Resources Law Clinic in drafting an amicus brief for Weyerhaeuser v. United States Fish & Wildlife Service. She also received her master’s in Environmental Management in 2020 from the Yale School of the Environment while working as a student clinician in Yale Law School’s Environmental Protection Clinic. Bleau will begin her work as an environmental attorney for the federal government later this year.