Federal Court Throws Out Trump-Era Endangered Species Act Regulations
In a win for conservation and climate activists, a federal judge recently struck down Trump-era Endangered Species Act regulations. This enables the Biden administration to issue its own regulations that consider the impact of climate change on the environment.
According to the United Nations, the world is facing an extinction crisis. Studies suggest that approximately 1 million animal and plant species face extinction, many within decades. The suspected cause is climate change.
The Endangered Species Act of 1973
The Endangered Species Act, signed into law by President Richard Nixon with bipartisan support in 1973, represents the most comprehensive environmental legislation ever enacted by any nation. Here's how it generally works.
Under the ESA, the National Marine Fisheries Service and the Fish and Wildlife Service can identify endangered and threatened species and designate their critical habitats. All federal agencies must consult with the appropriate service before doing something that may affect a listed species. The service then determines whether the proposed action might jeopardize the species or its habitat and, if so, whether there are "reasonable and prudent alternatives." If not, the federal agency has to do something else.
The ESA doesn't apply to just federal agencies. It applies to everyone subject to U.S. law. And it prohibits:
- The killing, harassing, harming, or collecting of listed endangered fish and wildlife species
- Other actions with respect to listed endangered plant species.
Another provision of the statute extends these broad protections to "threatened" species.
Trump Administration's 2019 Regulations
Various developers and businesses claimed that it was too hard to comply with the ESA. Heeding their request, the Trump administration issued new ESA regulations in 2019 that:
- Made it easier to remove plants and animals from the list of endangered and threatened species
- Placed restrictions on how the services determine whether a species was endangered or threatened and on the scope of its critical habitat
- Limited consideration of risks of climate change in these determinations
- Ended the policy of extending the highest level of protection to "threatened" species
- Prioritized protecting habitats where endangered and threatened species actually lived rather than where they might thrive
- Allowed the services to consider economic costs (such as lost revenues) of listing a species as threatened or endangered
These regulations significantly weakened the country's chief conservation law and made it harder for the services to protect wildlife from the suspected dangers of climate change. That did not sit well with environmental and climate groups.
Center for Biological Diversity v. Haaland
They filed a lawsuit in federal court in California, Center for Biological Diversity v. Haaland. They asked the judge, Jon S. Tigar, an Obama appointee, to throw out the 2019 regulations.
Then state governments got involved. Some blue states, such as California, filed their own lawsuits or asked to support the environmentalists in the existing lawsuit. Some red states, such as Alabama, asked to defend the 2019 regulations in court.
The services wanted to rewrite the 2019 regulations but keep them in place for the time being (lawyers call this "remand without vacatur").
Judge Tigar's Ruling
So really the only question before the court was what to do with the current regulations — keep them for now or throw them out? And in a relatively short opinion — only 11 pages — the court concluded that the errors in the 2019 regulations were so serious that it would be wrong to keep them in place.
Since the parties agreed that the 2019 regulations were problematic (procedurally and in substance), the court focused on the issue of confusion. The services had argued that tossing the regulations would put businesses in the position of not knowing what to do.
The court found that even greater confusion would arise if the parties were forced to comply with the flawed 2019 regulations, especially given that the services planned on rewriting them anyway. Tigar rejected the argument and struck down the regulations.
A Win for the Environment
We will see if Tigar has the last say in the matter. In the meantime, the services retain the ability to consider the impact of listing a species on the climate and do not have to consider economic factors. For now, it's a big win for the environment and those who want to protect it.
- Summary of the Endangered Species Act (FindLaw's Corporate Counsel)
- Climate Lawsuits Are Finding Success Around the Globe. Will Strategy Work in the U.S.? (FindLaw's Courtside)
- Climate Change and the Law (FindLaw's Learn About the Law)