Environmental Law: Significant regulatory changes to the U.S. Endangered Species Act

On August 12, 2019, the U.S. Fish and Wildlife Service (FWS) and Department of Commerce National Marine Fisheries Service (NMFS) finalized revisions to several key sections of the Endangered Species Act (ESA) regulations. The ESA has been in place for 45 years and has aided in protection and recovery of numerous species of fish and wildlife. However, it has not been without challenges from landowners, as well as business and wildlife groups. Hence, the agencies attempted to improve the regulations to address transparency and implementation matters to be more effective.

The regulatory process started in the summer of 2017 when the agencies requested public input on reforming the ESA regulations. Ultimately, after much policy analysis by the agencies it was determined that the focus would be on revisions to ESA Section 4 and 7 regulations. As with all regulatory amendments, the ESA regulations were subject to extensive public review and comment, which lead to hundreds of thousands of comments.

In addressing the changes, Secretary of the Interior David Bernhardt stated that “[t]he best way to uphold the Endangered Species Act is to do everything we can to ensure it remains effective in achieving its ultimate goal — recovery of the rarest species. The Act’s effectiveness rests on clear, consistent and efficient implementation.” Further that “[a]n effectively administered Act ensures more resources can go where they will do the most good: on-the-ground conservation.”

The substantive revisions to the regulations address three core areas that apply to Section 4 (adding and removing species), Section 7 (agency cooperation) and Section 9 (prohibitions for listed species). The Section 4 regulatory changes under 50 CFR 424 provide that decisions to add or remove a species from the threatened or endangered list will be based solely on the best available scientific and commercial information and these will be the only criteria on which listing determinations are made.

Furthermore, the regulatory changes confirm that the standards for de-listing and re-classification of a species consider the same five statutory factors as the initial listing decisions. The de-listing decisions have been under scrutiny in recent years as FWS has attempted to de-list species (such as the Yellowstone grizzly bear) only to face legal challenges on tangential grounds that are not clearly identified in the ESA. Consequently, the agencies are attempting to strengthen the process for removing recovered species from the coverage of the ESA.

A key change in the regulations is clarifying what constitutes “foreseeable future” under 50 CFR 424 for a threatened species designation. Under prior regulations FWS was tasked with considering “conditions potentially posing a danger of extinction in the foreseeable future…”  The revisions clarify that the term “foreseeable future extends only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.” Hence, FWS will only look so far to the future as it can reliably predict and not speculate.

In addition to the process of listing species, the regulatory changes also address designation of critical habitat for covered species. Although it is sometimes necessary to designate critical habitat for protected species, in some instances it is not appropriate so the regulations specify circumstances when that is the case. In addition, the regulations also reinstate a requirement that areas where threatened or endangered species are present at the point of listing be evaluated first before considering unoccupied areas. As a result, the regulations seek to reduce the regulatory burden on property by a critical habitat designation if the species are not actually present in the area.

Another noteworthy change to ESA regulations was done as a separate revision to rescind a “blanket rule” under Section 4(d) that automatically granted threatened species the same protections as endangered species unless it was otherwise specified. Since the NMFS never had a blanket rule this brings the regulations of the FWS in line with that of NMFS. In the future, when species are designated as threatened the FWS will craft species-specific 4(d) rules to address conservation of threatened species.

The regulations which address Section 7 of the ESA, namely 50 CFR 402, were also revised to ensure that federal agency actions do not have an adverse impact on covered species. In particular, federal agencies must consult with FWS and National Marine Fisheries Services. The regulations were revised to streamline the interagency process, as well as addressing efficiency and consistency in implementation.

On Aug. 23, a group of advocacy groups sued the Trump Administration challenging the regulatory changes. These special interest groups seek to block the regulatory changes claiming that the regulatory changes are improper, arbitrary and will lead to extinctions. The action was filed by Earthjustice, along with the Center for Biological Diversity, Defenders of Wildlife, National Resources Defense Council, Sierra Club, Wild Earth Guardians and Humane Society of US. The suit was filed in United States District Court in San Francisco, part of the Ninth Circuit Court of Appeals, so it appears that forum shopping was a consideration. Based on recent cases from Ninth Circuit area federal courts, while initial rounds may be favorable to the plaintiffs, a final determination on the matter may well await a decision of the U.S. Supreme Court.

On the other hand, landowners and business groups are pleased with regulatory changes to ESA to clarify listing, de-listing and critical habitat designations, which all too often have been expansive and difficult to navigate. For example, the U.S. Chamber of Commerce said that “[t]he new revisions to the Endangered Species Act strike an appropriate balance between appropriate protection of species and land and natural resources development. We appreciate the extensive work that the Fish and Wildlife Service and National Marine Fisheries Service did to finalize these provisions and look forward to their implementation.”

Although the ESA serves a necessary and significant role in protecting and restoring threatened and endangered species in the country, the regulatory scheme needed refinements to be more balanced and efficient.

George S. Van Nest is a partner in Underberg & Kessler LLP’s Litigation Practice Group and chair of the Firm’s Environmental Practice Group. He focuses his practice in the areas of environmental law, construction, and commercial litigation.