Today, a federal judge in the Northern District of California remanded and vacated three Endangered Species Act (ESA) rules finalized during the Trump administration. These 2019 rules were all challenged in court by environmental activists and while we expected the Biden administration to rescind and replace them, the vacatur is unexpected. This regulatory whiplash increases uncertainty, expands government overreach under the ESA, and will worsen the delays and backlog of the consultation process.
The following changes take effect immediately:
- Reverting to the “blanket 4(d)” rule. The 2019 rule prohibited the U.S. Fish and Wildlife Service (FWS) from automatically extending the protections against take that apply to endangered species to cover threatened species as well. Vacating the rule now returns FWS to a “blanket 4(d)” rule, where threatened species automatically enjoy the same protections against take as endangered species.
- Reverting to a listing process that does not consider economic impact. The previous administration directed FWS to factor possible economic impacts into decision making on listing a species or designating critical habitat. Vacating the rule now returns the agency to a state where they are not required to consider the economic impact a listing might have on rural communities. On a related note, last month the Biden administration also repealed the Trump administration’s definition of “habitat” (see 6/23/2022 PLC Update.)
- Reverting to prior process for interagency consultation.Section 7 of the ESA requires federal agencies to consult with FWS or the National Marine Fisheries Service (NMFS) before engaging in any action that could potentially affect a listed species. To improve the efficiency of that consultation process, the previous administration codified alternative consultation mechanisms and established a deadline for informal consultations, providing greater certainty to regulators and impacted producers, landowners, and communities. Vacating the rule now removes those revisions from the books.
The judge’s opinion covers several separate lawsuits: Center for Biological Diversity v. Haaland, State of California v. Haaland, andAnimal Legal Defense Fund v. Haaland. PLC participated as an intervenor-defendant in the first case.
Coupled with recent actions to repeal the “habitat” definition and expand the ability to introduce 10(j) populations, this ruling is highly concerning. PLC is actively involved in defending the ESA rules alongside a coalition of agricultural and natural resource groups. Along with our partners, we are evaluating next steps and will continue advocating for a regulatory approach to the ESA that is firmly science-based, rooted in present conditions on the ground, and cognizant of the economic impact these decisions have on rural communities.
If you have any questions or need additional information, please don’t hesitate to call.
Associate Director, Government Affairs & Federal Lands
Center for Public Policy
The Pennsylvania Building