October 25, 2019

As legal challenges loom, impact of new Endangered Species Act rules remains uncertain

James Rusk and Daniel Maroon

In August 2019, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (together the Services) finalized amendments to the federal regulations implementing the Endangered Species Act (ESA), after receiving more than 200,000 public comments, and more than a year after the Services formally proposed the changes. The final rules include nearly all of the key changes the Services proposed in July 2018, including the elimination of automatic protections for species newly listed as threatened, changes to the standards for designating unoccupied critical habitat, and revisions to the procedures for interagency consultation. But, with environmental advocacy groups already challenging the rules in federal court, and significant questions about how the Services will implement the new provisions, the impact of the closely watched rulemakings remains uncertain.

The three final rulemakings—two issued jointly by the Services, and one issued by the USFWS alone—appeared in the Federal Register on August 27, 2019, and became effective on September 26, 2019.

Rescission of the “blanket 4(d) rule”

The USFWS finalized, without change, the proposed revisions to its so-called “blanket rule” issued under ESA section 4(d), which by default extended to threatened wildlife species the “take” prohibition and most other protections that apply to endangered species under the ESA. Under the new rule codified at 50 C.F.R. § 17.31, those protections will apply to species the USFWS lists as threatened after the rule’s effective date only to the extent the USFWS makes them applicable through a species-specific “special rule.” The blanket rule will continue to apply to species the USFWS previously listed.

Environmental advocates have said the change will undermine protections for threatened species. But whether that actually occurs will depend on the USFWS’s adoption of special rules. The preamble to the final rule notes that, even with the blanket rule in place, the USFWS has adopted more than two special rules per year over the last decade. It states that, under the new regulations, the USFWS intends to promulgate special rules when listing or reclassifying species as threatened, and that the rules will be tailored to stressors that threaten the species, while facilitating conservation efforts. The preamble notes that the NMFS has long followed a similar approach.

Amendments to listing and critical habitat rules

The Services finalized most of the proposed changes to the regulations at 50 C.F.R. Part 424, which govern listing of species and designation of critical habitat under ESA section 4. Key provisions of the final rulemaking include:

  • A new definition of “foreseeable future”—important for listing decisions because the ESA defines a threatened species as “any species which is likely to become an endangered species within the foreseeable future.” The final rule changes the language but retains the substance of the proposed rule, providing that the foreseeable future “extends only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.” Commenters have suggested the change will curtail the Services’ reliance on long-range climate change projections to justify the listing of threatened species.
  • New standards for designating unoccupied critical habitat. The final rule retains the “two-step” approach of the proposed rule, under which the Services will designate unoccupied habitat only after a determination that occupied habitat is inadequate for conservation of the species, and only if there is “reasonable certainty” that the area will contribute to the species’ conservation. The final rule adds a requirement that unoccupied habitat contain at least one of the “physical or biological features essential to the conservation of the species”—responding to the U.S. Supreme Court’s recent holding in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, 139 S. Ct. 361 (2018), that all critical habitat must first be “habitat.” The final rule abandons a provision in the proposed rule that would have  allowed designation of unoccupied critical habitat where a designation limited to occupied habitat would result in “less efficient conservation.”
  • A revision allowing (but not requiring) the Services to present information on the economic impacts of listing decisions. The preamble to the final rule acknowledges that the Services cannot consider economic impacts in making listing decisions, but states that Congress and the public have expressed a “strong and growing interest” in this subject, suggesting that economic-impacts information could be intended to support consideration of future legislative action.

Other provisions in the final rule clarify the standards for delisting species and for finding that designating critical habitat is not prudent. Overall, these changes do not mandate a sea change in the Services’ implementation of the ESA, but they could support a more parsimonious approach to listing and critical habitat designations in certain circumstances, particularly for species that are primarily threatened by loss of habitat due to long-term climate change.

Technical changes to section 7 consultation regulations

The Services finalized amendments to the regulations for interagency consultation under ESA section 7. Most of the proposed amendments were technical in nature, or intended to clarify existing practice, such as those that define “effects of the action” and “environmental baseline” for purposes of the Services’ biological opinions, and those dealing with reinitiation of consultation on programmatic federal land management plans. The final rule largely adopts the proposed changes with non-substantive revisions. Notably, the final rule implements a new, 60-day time limit for informal consultation, and adds a provision for expedited consultation on federal actions with minimal or predictable adverse effects on listed species.

Challengers to the rules are lining up

Environmental advocacy groups have strongly criticized the amendments since the Services issued the proposed rules, and a group that includes the Center for Biological Diversity, Sierra Club, Defenders of Wildlife, and the NRDC filed suit in federal court in the Northern District of California in August to block the final rules. Seventeen states, the District of Columbia, and the City of New York filed another suit in the same court in September, also challenging the final rules. The outcome of these challenges, together with the approaches to ESA implementation taken by current and future federal administrations, will determine the impact of the amended regulations.

James Rusk and Daniel Maroon

James Rusk is a partner in the San Francisco office of Sheppard Mullin, and represents landowners and project proponents in Endangered Species Act, Clean Water Act, and National Environmental Policy Act compliance and litigation. He is a current vice chair, and immediate past co-chair, of SEER’s Endangered Species Committee.

 

Daniel Maroon is a member of Sheppard Mullin’s Real Estate, Land Use and Environmental practice group in the San Francisco office. His practice focuses on land use planning and entitlement procedures, compliance and litigation involving endangered species, wetlands and water quality, and related issues arising under state and federal environmental laws.