The Trump administration’s numerous revisions to federal rules governing the listing of species and designation of critical habitat remain in effect despite environmental group litigation to restore prior Endangered Species Act (ESA) regulations. While the Biden administration has pledged to reverse or revise most of these rules, the pace of change has been slow. President Joe Biden only just nominated, on October 22, Martha Williams to be director of the U.S. Fish and Wildlife Service, the primary agency, along with the National Marine Fisheries Service (collectively, Services), in charge of administering the ESA. And some of the court cases challenging the rules are currently stayed pending further review and action by the agency.
The rules most likely to be reversed are the Trump administration’s eleventh-hour modifications to the process for designating critical habitat, the occupied and unoccupied areas scientists have determined are essential to the conservation of a species. After the U.S. Supreme Court, in Weyerhaeuser v. U.S. Fish and Wildlife Serv., 139 S. Ct. 361 (2018), remanded a designation of unoccupied critical habitat for the dusky gopher frog for further consideration of whether the area was habitat, the Trump administration narrowly defined “habitat” to include only those areas currently capable of supporting a species. 85 Fed. Reg. 81,411 (Dec. 16, 2020). Degraded habitat, including areas requiring minimal restoration, and areas likely to be needed for species to adapt to climate change would not qualify. In response to litigation, the Biden administration announced it would rescind the rule and has indicated in court filings that it expects to complete that recission by June 16, 2022.
The other rule on a relatively fast track to recission concerns the process for excluding areas from critical habitat designation under section 4(b)(2) of the ESA. 85 Fed. Reg. 82,376 (Dec. 17, 2020). Among other things, the rule reversed a presumption that supported designation of critical habitat on public lands and put a heavy thumb on the scale in favor of landowners, permittees, and other stakeholders seeking to exclude areas from designation. The Biden administration recently told a federal court it expects to complete rulemaking to rescind the rule by July 15, 2022.
The Biden administration has also promised to reinstate the “blanket 4(d) rule,” which the Trump administration withdrew. 84 Fed. Reg. 44,753 (Aug. 27, 2019). Originally established in 1978 for species overseen by the U.S. Fish and Wildlife Service, the blanket 4(d) rule automatically extended to threatened species the same protections provided to endangered species, unless the Service issued a special section 4(d) rule setting forth alternative protections. The National Marine Fisheries Service never adopted a blanket 4(d) rule for marine species. Under a recent proposal to a federal court, however, the administration would not complete that rulemaking until January 2023.
Finally, the Biden administration is proposing to revise the Trump administration’s 2019 rules affecting the section 4 listing and critical habitat process, 84 Fed. Reg. 45,020 (Aug. 27, 2019), and section 7 interagency cooperation. 84 Fed. Reg. 44,976 (Aug. 27, 2019). What this means is unclear, as the Services have yet to indicate which portions of the rules they intend to revise and which parts they plan to keep. Environmental groups and a coalition of states have challenged these rules in their entirety and, at this writing, are opposing a motion to stay that litigation. Under its current plan, the Biden administration would propose revisions in the Federal Register in January 2022, with an intent to complete rulemaking by December 2022.
For the section 4 rules, the Services did say in June that it would “reinstate prior language affirming that listing determinations are made ‘without reference to possible economic or other impacts of such determination,’ along with other potential revisions.” But environmental groups and the states are seeking much broader changes, including revisions to the definition of “foreseeable future” and elimination of new limits on designating critical habitat where the primary threat to the species may be disease or climate change. They would also like to rescind the rule’s rigid “step-wise” approach to designating critical habitat by which unoccupied areas may be considered only after scientists determine that occupied areas are insufficient to conserve the species. It remains to be seen what the Biden administration intends to do on these issues.
Similarly, the Biden administration has indicated that it will revise the definition of “effects of the action” in the section 7 consultation rules but noted only that “other potential revisions” are “under discussion.” Currently, the rule exempts ongoing effects of federal projects from consideration in the environmental baseline, which can significantly reduce the scope of the action being consulted on. But that is not the only change of concern to environmental groups. The litigants also seek to revise the rule’s definition of “destruction or adverse modification” of critical habitat and eliminate language that limits the government’s ability to consider the effects of climate change in consultations, among other things. Without additional revision, environmental groups are concerned that the Trump changes to the section 7 regulations will diminish the importance of the consultation process and place endangered species at substantially greater risk.
Executive Order 12866, which allows the Office of Management and Budget 90 days to consider each proposed and final rule, can add six months to the process of rescinding and revising regulations. And because of a lack of political leadership and inadequate career staffing, the Biden administration is insisting on prioritizing among the rules and staggering the timing of each proposal.
Ultimately, the procedural difficulty of undoing final regulations may insulate the Biden administration’s own rules from quick recission in a subsequent administration. But it also means that the Biden team’s proactive agenda may take a back seat until the damage wrought by the Trump administration is reversed. Unfortunately, due to cumbersome process and inadequate staffing, by the time the Trump administration’s regulations will be finally revised or rescinded, President Biden’s first term will be half over.
