Law Student Corner: Conservation Groups Settle Endangered Species Act Pangolin Case with Fish and Wildlife Service

II.  The Lawsuit

Five conservation groups—the Center for Biological Diversity, Humane Society International, the Humane Society of the United States, Born Free USA, and the Natural Resources Defense Council—filed a lawsuit on January 22, 2020, to compel the Service to respond to two petitions calling for the listing of seven species of pangolin under the ESA. One petition called for the seven species to be listed as endangered due to their serious risk of extinction from the international wildlife trade, habitat destruction, and inadequate regulatory mechanisms. The other petition called for the seven species to be treated as endangered under section 4(e) of the ESA because of their resemblance to the listed Temminck’s ground pangolin.

In 2016, the Service issued a ninety-day finding that listing all seven pangolin species—the Chinese pangolin, the Sunda pangolin, the Philippine pangolin, the Indian pangolin, the white-bellied pangolin, the giant ground pangolin, and the black-bellied pangolin—may be warranted. However, the Service never followed up on that finding despite the statutory requirement to issue a twelve-month final determination on the listing. In their complaint, the plaintiffs alleged that the Service violated section 4(a) of the ESA by failing to make the required twelve-month finding (which had been pending for over four years at the time the case was filed). This type of ESA deadline violation is unfortunately quite common. Many commentators have noted that insufficient resources and a full docket very often leave the Service unable—despite its best efforts—to meet the strict deadlines required by the ESA.

Additionally, the plaintiffs alleged that the Service had violated the Administrative Procedure Act by failing to respond to the ESA section 4(e) petition and thus sought to compel agency action “unlawfully withheld or unreasonably delayed.”

III.  The Settlement Agreement

Rather than attempt to litigate the case—an approach that would almost certainly have been unsuccessful given the mandatory nature of the deadlines imposed by section 4(a)—the Service entered into a Settlement Agreement with the plaintiffs on August 18, 2020. The Settlement Agreement, which does not admit any wrongdoing on the part of the Service, requires the Service to act on the plaintiffs’ petitions by specific deadlines. In exchange, the Court dismissed all counts of the plaintiffs’ complaint with prejudice.

As part of the Settlement Agreement, the Service agreed to issue a finding on the plaintiffs’ section 4(e) petition by June 1, 2021. Specifically, the Service would either promulgate a rule to treat any number of the seven pangolin species as endangered (because of their similarity to the listed Temminck’s pangolin) or provide an explanation as to why it was denying the section 4(e) petition. If the Service issues a proposed or interim rule by that deadline, it is required to either finalize the rule or to withdraw the rule by March 1, 2022.

The Settlement Agreement also requires the Service to act on the section 4(a) listing petition by June 1, 2025. By this date, the Service must issue twelve-month findings that the listing of each pangolin species as threatened or endangered under the ESA is warranted, not warranted, or warranted but precluded by higher priorities at the agency. The Service also agreed to pay $16,000 to the conservation groups in attorney fees and costs.

Finally, the Court retained jurisdiction over the case to ensure that the Service complies with the terms in the Settlement Agreement. Should the Service fail to meet one of its deadlines, and good-faith efforts among the parties fail to resolve such dispute, the plaintiffs may file a motion to enforce the terms of the Settlement with the Court.

II.                Protecting Pangolins

The Settlement Agreement comes at a crucial time for pangolins. As discussed in a previous article, the pangolin—or the scaly anteater—is “the world’s most trafficked mammal.” They are frequently captured from the wild and illegally brought to East Asia or the United States, where there are lucrative and robust markets for pangolin scales and meat. The rapid decline in pangolin populations (for example, one million pangolins were poached between 2004 and 2014) led the conservation groups to call for protecting the species under the ESA.

The practical effect of listing a foreign species under the ESA is different from the effect of listing a domestic species. Namely, the protections afforded by section 7 of the ESA (which requires federal agencies to consult with the Service before taking an action that is likely to jeopardize the continued existence of a listed species) are unlikely to apply to foreign species.  It is also less likely that foreign species will be “taken” within the meaning of section 9 of the statute. However, there are significant benefits, especially for a species that is actively in trade. First, section 9 of the ESA also makes it unlawful to import, deliver, transport, or sell a listed species in interstate or foreign commerce. Second, listing a foreign species under the ESA can help the species receive conservation funding from the Service. Finally, listing a foreign species can help to draw awareness to that species’ plight—something that is incredibly important for creatures like pangolins, which are not particularly well known.

It should be noted that all extant pangolin species are listed under Appendix I of the Convention on the International Trade of Endangered Species (CITES), which also prohibits the importation of pangolins. The United States is a party to CITES and the ESA serves as the legislation for CITES implementation.  However, the other benefits of listing the pangolins (including the ESA’s restrictions on selling listed species within the United States) would still be very beneficial and conservation groups are justified in calling the Settlement Agreement a success for pangolins.

Indeed, some of the plaintiffs have called for additional action to protect pangolins. In August 2020, the Center for Biological Diversity, the International Environmental Law Project, and Environmental Investigation Agency UK petitioned the U.S. government to certify that China is “diminishing the effectiveness” of CITES by allowing the illegal trade in pangolins to continue. These groups seek this certification under the Pelly Amendment of the Fishermen’s Protective Act, which would allow the Department of the Interior to recommend trade sanctions against China.

V.  A Step Toward Combatting the Wildlife Trade

The COVID-19 pandemic has underscored the need to regulate the international wildlife trade and protect imperiled species. Many scientists have identified pangolins as one of the potential intermediaries for the coronavirus and speculate that the virus may have been passed to humans from pangolins in the wildlife trade. Though the precise extent to which pangolins were involved in spreading the disease to humans remains disputed, the fact remains that under-regulation of the international wildlife market is a likely contributor of the pandemic the world is struggling with today.

The Settlement Agreement between the U.S. Fish and Wildlife Service and five conservation groups is a step in the right direction for pangolin conservation. If the Service ultimately lists the pangolins, this may help to combat the illegal flow of these vulnerable animals into the United States.