Judge Lets Trump’s Endangered Species Rules Stand During Rewrite

A California federal judge on Wednesday let stand Trump-era Endangered Species Act rules while the Interior Department revises them, sparking environmental groups’ ire.

Judge Jon Tigar of the US District Court for the Northern District of California granted the US Fish and Wildlife Service’s request for remand without vacatur two sets of rules implementing the ESA.

Those include the ESA Section 4 rules, which govern how the agency identifies imperiled plants and animals and designates critical habitat for those species, and Section 7 rules for how federal agencies must consult with Fish and Wildlife and the National Marine Fisheries Service before approving projects. The Trump administration adopted the rules in 2019.

The Trump rules scrapped the Fish and Wildlife Service’s long-standing “blanket rule,” which automatically gave threatened species the same protections as higher-priority endangered species, such as a ban on killing or harming them. The rules allow the agency to consider the economic impact of species protection when deciding whether to list an imperiled species under the ESA.

‘Dragged Its Feet’

Environmental groups accused the service of delaying the restoration of ESA protections for numerous imperiled species and criticized the agency for keeping harmful rules in place for years while they’re being rewritten.

“We are in a biodiversity crisis, and the Biden administration has dragged its feet in revitalizing the world’s most effective law for species and habitat protection,” Earthjustice attorney Kristen Boyles said.

The decision “pushes at-risk species like wolverines and golden-winged warblers even further into harm’s way,” said Noah Greenwald, endangered
species director at the Center for Biological Diversity.

The Interior Department and the service declined to comment Wednesday, but an agency official said in an Oct. 14 court filing that the Biden administration plans to propose changes to the rules in early 2023 and publish final revised rules in May 2024.

Clean Water Act Connection

Tigar ruled that he can’t vacate the Trump ESA rules without first adjudicating their merits, referencing Louisiana v. American Rivers, a Clean Water Act case that US Circuit Court of Appeals for the Ninth Circuit grappled with in oral arguments on Tuesday.

The Supreme Court in April stayed a voluntary remand with vacatur order in the Louisiana case.

“The court concludes that it cannot grant pre-merits vacatur on voluntary remand,” Tigar wrote, citing Louisiana.

The high court’s ruling didn’t explain why it granted the stay, “but the clear issue was the validity of voluntary remands with vacatur when the merits have not been addressed,” Boyles said.

With the Ninth Circuit case still pending, “the district court is looking to the US Supreme Court stay as the most authoritative ruling at the moment,” Boyles said.

The Endangered Species Act case is Center for Biological Diversity v. Haaland, N.D. Cal., 4:19-cv-05206-JST, 11/16/22