Endangered Species Rule to Face Legal Challenges From All Sides

The Biden administration’s recent endangered species rules are vulnerable to court challenges by both environmentalists and industry groups because the proposals keep some Trump-era provisions while providing safeguards that anger developers.

“There will be litigation over these rules,” said Kristen Boyles, a managing attorney for Earthjustice, because Trump administration provisions slated to remain are the “same parts of the rule that conservation groups had challenged.”

The US Fish and Wildlife Service and the National Marine Fisheries Service in the coming months are expected to finalize three proposed rules published in June that would implement the Endangered Species Act. They include an update to the agencies’ 2019 Endangered Species Act regulations, a rule governing the designation of critical habitat for endangered species, and a rule for interagency cooperation on endangered species.

The rules, likely to be finalized in 2024, affect how builders, drillers, miners, and others have to avoid harming imperiled animals and plants, and how they’ll have to mitigate construction’s impact to habitat.

When finalized, the rules will update 2019 Trump-era regulations that allowed the agencies to consider the economic effects of protecting an imperiled plant or animal species when deciding whether to list it as endangered or threatened; lifted the ESA’s “blanket” rule that extended similar protections to both threatened and endangered species; and loosened requirements for federal agencies to consult with the Fish and Wildlife Service about how a proposed project would affect plants and animals facing extinction.

Trump-era Challenge

Environmentalists challenged the Trump rules in court, but the US District Court for the Northern District of California last November allowed them to stay in place while the Biden administration updates them. The case was Center for Biological Diversity v. Bernhardt.

“The Trump administration was trying to tie the hands of the services to not be as conservation-minded,” said Sandi Snodgrass, a partner at Holland & Hart LLP in Denver. Biden’s proposed update “is nibbling around the margins where it gives agencies more discretion around the conservation side.”

But environmental groups say the Biden administration isn’t going far enough to reverse Trump officials’ efforts to make it easier to build regardless of the effects on wildlife.

Biden’s proposed changes to the rule that requires federal agencies to consult with each other to make sure federal projects don’t harm endangered species are modest, said Brett Hartl, government affairs director for the Center for Biological Diversity.

“They left every major change the Trump administration put in almost unaltered,” Hartl said. “Their goal was to grease the skids to get more projects approved quicker.”

The FWS didn’t respond to a request for comment. A public comment period closed in August.

Attorneys for environmental groups and those representing industry say they expect the proposed rules to be challenged for different reasons if the agencies don’t dramatically change the final version.

The ‘Blanket’ Rule

Environmental groups hailed the return of the “blanket” provision, which was in place for decades until Trump rescinded it in 2019. The provision temporarily extends endangered species protections to species that are newly listed as threatened until the FWS can tailor protections to the threatened species’ needs.

“The blanket rule provides threatened species a high level of protection from threats from the moment they are listed as threatened, thereby reducing the risk the species will continue to decline toward endangered status,” the National Wildlife Federation said in comments submitted to FWS in August.

If the blanket rule is reinstated, the FWS is likely to treat endangered and threatened species the same indefinitely without taking the “extra step” of writing a less-stringent rule for a specific threatened animal or plant, said Brooke Marcus, a partner at Nossaman LLP in Austin whose endangered species work focuses on renewable energy permitting.

The rule would increase costs for developers because they’ll need to obtain a FWS permit for incidental harm of a threatened species as part of a project, Marcus said.

Industry groups are accusing the FWS of failing to justify its reversal of reinstating the blanket rule and violating the plain language of the ESA.

FWS “flip-flopped” on the blanket rule, reinstating it for the same reasons the Trump administration rescinded it, Katie Mills, associate general counsel for the National Mining Association, said in her comments submitted to the FWS in August.

Reinstating the rule would violate the “plain requirements” of the ESA and undermine Congress’ mandate for effective cost-benefit analyses of species protections, a team of attorneys at the Pacific Legal Foundation and Travis Joseph, president of the American Forest Resource Council, said in joint comments submitted to FWS.

“The Service has disregarded the economic impact its reversion would place on small businesses and other entities,” the attorneys wrote. “The Service must conduct that analysis before finalizing the proposed rule.”

Required Mitigation

Especially vulnerable to legal challenge is a new provision for “incidental take,” the agency’s term for permitted damage or destruction of an imperiled species or its habitat as part of construction.

The proposal would allow the FWS to require a developer to conduct a damage-offsetting measure, such as a habitat restoration project or designating a conservation easement, if the developer can’t avoid destroying habitat as part of a construction project, Snodgrass said.

FWS said in its proposal that its previous guidance said it’s only reasonable to require developers to minimize harm to species within a project area, not outside of it. But the agency said it’s reinterpreting the ESA to require developers to do more to avoid harm to imperiled plants and animals.

Offsetting measures “are additional measures to address residual impacts to the species that remain after measures to avoid and, therefore, reduce incidental take are applied,” FWS said in the proposed rule.

The proposal is “seismic” because such measures have never been required before and it “seems to be pretty contrary to the plain language of the statute,” Snodgrass said. “Somebody’s going to challenge that interpretation of the act.”