07/27/2018 - Regulatory Rollback

Endangered Species Act Regulations

by Caitlin McCoy

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

The Endangered Species Act provides protections for threatened and endangered species, but the level of protection given to each species and the amount of species protected depend on how the Act is interpreted and applied through its regulations. The regulations contain detailed definitions and the steps that the U.S. Fish and Wildlife Service and the National Marine Fisheries Service and other agencies need to take in order to apply the protections in the Act to species and their habitats. The regulations are the “how-to” guide that upholds the purpose of the Endangered Species Act, “to protect and recover imperiled species and the ecosystems upon which they depend.”

Current Status

Aug. 12, 2019 The U.S. Fish and Wildlife Service and National Marine Fisheries Service issue three final rules:

Aug. 21, 2019 Environmental groups file a lawsuit challenging the three final rules released on Aug. 12. The complaint alleges that “[t]he revised regulations violate the plain language and overarching purpose of the ESA; they also lack any reasoned basis and are arbitrary and capricious under the Administrative Procedure Act,” and it also alleges the agencies violated NEPA when creating the regulations. Center for Biological Diversity, et. al. v. Bernhardt, et. al., Case No. 3:19-cv-05206 (N. D. Cal.).

Sep. 24, 2019 A coalition of 17 states, the District of Columbia, and New York City file a lawsuit led by California and Massachusetts challenging the three final rules released in August 2019. State of California, et. al. v. Bernhardt, et. al., (N. D. Cal.).

History

In 1973, Congress passed the Endangered Species Act and recognized that our natural heritage is of “esthetic, ecological, educational, recreational, and scientific value to our Nation and its people.” Congress also expressed concern that many of our nation’s native plants and animals were in danger of becoming extinct. Congress designated two agencies to share responsibility for administering the Act: The U.S. Fish and Wildlife Service in the Department of the Interior, and National Marine Fisheries Service in the National Oceanic and Atmospheric Administration in the Department of Commerce.

In 1978, 1982, and 1988, Congress amended the Endangered Species Act in significant ways but kept the framework of the Act and its key provisions in place.

Over the years, the FWS and NMFS have issued numerous rules that form the regulations that the FWS and NMFS use to apply the Act and other agencies use to comply with it.

Trump Era

July 25, 2018 The FWS and NMFS release a proposed rule, “Revision of the Regulations for Listing Species and Designating Critical Habitat.” Among other changes, the FWS and NMFS propose to introduce “economic and other impacts” into the process of listing, delisting, and reclassifying species. The FWS and NMFS say that this will be done only to inform the public about those impacts. The proposed rule states that the actual determinations will continue to made, as the Act requires, “solely on the basis of the best scientific and commercial data available.” 

July 25, 2018 The U.S. Fish and Wildlife Service release a proposed rule, “Revision of the Regulations for Prohibitions to Threatened Wildlife and Plants.” The FWS has traditionally extended all of the protections for endangered species to threatened species, as soon as they are listed. Now, FWS is proposing to make a case-by-case determination (“species-specific rule”) for each threatened species to decide which protections they should be given. FWS points to the NMFS which has long used this approach for each threatened species. However, the proposed rule does not address the fact that NMFS has jurisdiction over 161 species and FWS has jurisdiction over approximately 2,139 species.

July 25, 2018 The FWS and NMFS release a proposed rule, “Revision of Regulations for Interagency Cooperation.” Among other changes, the FWS and NMFS propose to revise the definition of ‘‘destruction or adverse modification.’’ This definition is a key part of Section 7(a)(2) requiring federal agencies to consult with the FWS and NMFS to ensure they do not jeopardize the continued existence of a threatened or endangered species or cause the “destruction or adverse modification” of habitat of such species. Although the FWS and NMFS say that the change will not raise or lower the bar for whether a proposed action is likely to result in destruction or adverse modification, they are proposing to add the phrase “as a whole” into the definition which could be read to be a broader definition and thus, more difficult to meet. Additionally, the new rule proposes to outline a framework for when other federal agencies do not need to consult with the FWS and NMFS on potential species issues.

Dec. 21, 2018 The U.S. Fish and Wildlife Service sends two of the proposed rules, Revision of Regulations for Interagency Cooperation and Revision of the Regulations for Listing Species and Designating Critical Habitat to the White House Office of Management and Budget for review. This is generally the last step before final rules are published and go into effect.

Aug. 12, 2019 The U.S. Fish and Wildlife Service and National Marine Fisheries Service issue three final rules: Revision of the Regulations for Listing Species and Designating Critical Habitat; Revision of the Regulations for Prohibitions to Threatened Wildlife and Plants; and Revision of Regulations for Interagency Cooperation. The rules are published in the Federal Register on August 27, 2019.

Aug. 21, 2019 Environmental groups file a lawsuit challenging the three final rules released on August 12. The complaint alleges that “[t]he revised regulations violate the plain language and overarching purpose of the ESA; they also lack any reasoned basis and are arbitrary and capricious under the Administrative Procedure Act,” and it also alleges the agencies violated NEPA when creating the regulations. Center for Biological Diversity, et. al. v. Bernhardt, et. al., Case No. 3:19-cv-05206 (N. D. Cal.).

Sep. 24, 2019 A coalition of 17 states, the District of Columbia, and New York City file a lawsuit led by California and Massachusetts challenging the three final rules released in August 2019. State of California, et. al. v. Bernhardt, et. al., (N. D. Cal.).

Oct. 7, 2019 The Fish and Wildlife Service announces its findings that twelve species, including plants and animals, did not warrant listing protections under the Endangered Species Act. These decisions are some of the first to be made in accordance with the agency’s new rule, Revision of the Regulations for Listing Species and Designating Critical Habitat.