The Biden administration is proceeding with the proposed rescission of two Endangered Species Act (ESA) rules promulgated in December 2020. The regulations subject to rescission address procedures for designating and excluding areas from critical habitat. The rescission process was kicked off in late October 2021, and the administration’s most recent regulatory agenda is projecting final decisions in the summer of 2022.
In addition, a broader set of ESA regulations promulgated by the prior administration remain in review for rescission, revision, or reinstatement. The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, the Services) also have announced potential revisions to the regulations governing other ESA actions, such as the issuance of species “take” permits. As a whole, the Services are poised to take actions that will likely have significant implications for project proponents, regulated entities, and other stakeholders and, in part, influence how the Services assess and respond to climate-related impacts and management of public lands.
In this article, we summarize the Services’ proposed rescission of the regulatory definition of “habitat,” FWS’s proposed rescission of its ESA section 4(b)(2) procedures, and other anticipated ESA regulatory actions.
As the first ESA regulatory action, the Services propose to rescind their definition of “habitat.” 86 Fed. Reg. 59,353 (Oct. 27, 2021). That final rule was promulgated on December 16, 2020, in response to the Supreme Court’s decision in Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018), which held that an area must be “habitat” before it can meet the ESA’s narrower definition of “critical habitat.” Because the term was previously undefined under the ESA, the Services proceeded to define habitat as “the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.”
In their current proposed rule, instead of revising or clarifying the definition, the Services would rescind it in its entirety. The Services state that the “one-size-fits-all” definition: inappropriately constrains their ability to designate areas that meet the ESA’s definition of critical habitat, uses overly vague and unclear terminology, is confusing to implement, and may create conflicts or inconsistencies with other federal agency statutory authorities or programs definitions or understandings of habitat. While recognizing that Weyerhaeuser was the impetus for the rulemaking, the Services state they intend to revert to implementing the ESA without an established definition of habitat and instead to consider whether an area is habitat on a case-by-case basis using the best scientific data available. As a result, and in response to certain criticisms of the 2020 rule, the Services will purportedly have greater flexibility to designate unoccupied areas as critical habitat, which will likely include designations that anticipate shifting habitat conditions and shifts in species’ ranges due to climate change.
Concurrently, FWS proposes to rescind its December 18, 2020, final rule that clarified how the agency considers and evaluates particular areas for exclusion from a critical habitat designation pursuant to ESA section 4(b)(2) due to economic, national security, and other relevant impacts. 86 Fed. Reg. 59,346 (Oct. 27, 2021). FWS’s 2020 final rule expanded on the Services’ joint policy describing how they exclude areas from critical habitat (2016 Policy) and sought to provide “transparency, clarity, and certainty to the public and other stakeholders” on how FWS conducts its discretionary exclusion analysis given the holding in Weyerhaeuser that decisions not to exclude areas from critical habitat are judicially reviewable.
As support for the proposed rescission, FWS states that the 2020 final rule undermines its role as the expert agency for ESA implementation because it gives undue weight to outside parties in guiding the agency’s authority to exclude areas from critical habitat. FWS also expresses concern that the final rule employs an overly rigid ruleset for when it will conduct an exclusion analysis, how weights are assigned to impacts, and when an area is excluded, regardless of the specific facts at issue or the conservation outcomes. Finally, FWS asserts that the final rule does not fulfill its stated goal of providing clarity and transparency to the exclusion process because it is now different than the processes and standards utilized by NMFS, which did not make similar revisions to its regulations. FWS proposes to revert to making critical habitat exclusion determinations based on the 2016 Policy and its preexisting joint regulations with NMFS (50 C.F.R. § 424.19), and, acknowledging Weyerhaeuser, FWS states it will now always explain decisions not to exclude areas from critical habitat. Notably, for public lands, this anticipated reversion to the 2016 Policy would focus designations of critical habitat on federal lands and prioritize those areas to support the recovery of listed species.
For listing species and designating critical habitat, the Services intend to propose revisions to a 2019 rule that, in part, clarified the duration of the “foreseeable future” when determining whether to list a species as threatened, revised the procedures for designating critical habitat—including clarifications regarding the treatment of unoccupied areas—and streamlined the process for delisting and reclassifying species. 84 Fed. Reg. 45,020 (Aug. 27, 2019). Recently, the Services identified several concerns with these regulations, including the procedures for making “not prudent” determinations for designating critical habitat, the requirements for designating unoccupied critical habitat, and the deletion of the provision stating that listing decisions are made “without reference to possible economic or other impacts of such determination.”
Similarly, the Services are reviewing changes to the ESA section 7 consultation process that also were adopted in 2019. 84 Fed. Reg. 44,976 (Aug. 27, 2019). In part, the regulation now under review had revised key terms regarding the identification of environmental baseline conditions, potential effects, and the level of causation and certainty required in the review of effects of an action on species and critical habitat; clarified what constitutes adverse modification of critical habitat; and adopted deadlines for the completion of informal consultation. In its early statements on this review, the Services have indicated that they have concerns with the interpretation of the phrase “effects of the action,” and will likely revise this definition and its associated provisions. Other revisions to the consultation regulations also are under consideration.
FWS also has stated an intent to reinstate its “blanket 4(d) rule,” which would automatically apply the ESA section 9 take prohibitions to threatened species. This reinstatement would reverse an August 27, 2019, decision in which FWS withdrew the blanket 4(d) rule to adopt a species-specific approach to application of the take prohibitions to threatened species. The 2019 withdrawal of the blanket rule brought FWS’s practices in concert with NMFS’s practice of issuing species-specific section 4(d) rules. 84 Fed. Reg. 44,753. FWS’s intended reversal and return to a blanket 4(d) rule is based on a concern that requiring a species-specific 4(d) rule provides less flexibility for the agency and requires use of already scarce additional resources.
Finally, in the most recent Unified Agenda of Regulatory and Deregulatory Actions, FWS and NMFS announced other forthcoming regulatory and policy revisions including: 1. in response to several court decisions, the Services anticipate proposing a revised policy providing an interpretation of the phrase “significant portion of its range” for the listing of species as threatened or endangered; 2. revising its experimental population regulations to provide flexibility to introduce species in areas outside their current or historical range if, for example, it is necessary to address the impacts of climate change and provide for the conservation of the species; and 3. revising its regulations implementing ESA section 10 regarding the issuance of permits to take species.
The proposed rescission or revision of recently promulgated final rules creates regulatory uncertainty for all stakeholders, an effect that is particularly acute for project proponents and directly affected entities. Further, the Services’ rationale for pursuing rescission or revision have been summary and without effective substantive explanations. For example, while there are various interpretations of what qualifies as or constitutes habitat for a particular species, a regulatory definition is needed for effective implementation of the ESA. The need for a consistent and workable definition of habitat is underscored by the fact that, in its Weyerhaeuser decision, the Supreme Court ruled that identifying habitat is a necessary precondition by which to assess whether an area can qualify for designation as critical habitat. Similarly, given the availability of judicial review of decisions not to exclude an area from critical habitat, the public and stakeholders need greater transparency and certainty regarding the critical habitat exclusion process. Outright rescission of these rules would come at the cost of enhanced predictability and consistency.
The planned rescissions, reversals, and regulatory changes will continue a “whipsawing” of ESA implementation that undermines certainty for all stakeholders. Further, the Services run the risk of inviting more litigation to the process, scope, and substance of their actions. Given the broad, summary explanations of the drivers of this review, it is clear we are witnessing a continuation of incoming and exiting administration debates on regulatory approaches. However, proceeding down this path of rescissions and reversals will most likely have the effect of perpetuating a regulatory and litigation limbo that stymies implementation of the ESA.
