Summary:
On July 5, 2022, a federal court vacated three regulations implementing portions of the Endangered Species Act (“ESA”) related to interagency consultation, the prohibition of take of threatened species, and critical habitat designations. Now that the regulations have been vacated, two regulations promulgated in 2016 come back into effect. The 2016 regulations use different definitions of key terms and may limit federal agencies’ flexibility in administering the ESA. Another regulation, which applies the “take” prohibition to all threatened species will also come back into effect.
What Should You Know?
On July 5, 2022, United States District Judge Jon Tigar vacated three regulations implementing various provisions of the ESA enacted by the National Marine Fisheries Service and U.S. Fish and Wildlife Service (the “Services”) under the Trump administration. Center for Biological Diversity v. Haaland, Case No. 4:19-cv-05206-JST, ECF No. 146 (N.D. Cal. July 5, 2022); Animal Legal Defense Fund v. Haaland, Case No. 4:19-cv-06812-JST, ECF No. 165 (N.D. Cal. July 5, 2022); and California v. Haaland, Case No. 4:19-cv-06013, ECF No. 109 (N.D. Cal. July 5, 2022). The Haaland federal defendants filed an identical motion to remand in all three cases, which Judge Tigar granted with an identical order in all three cases.
In 2019, the Services issued final rules making revisions to the ESA implementing regulations. Shortly after the revised regulations were issued, a coalition of environmental groups, a coalition of states, and the Animal Legal Defense Fund filed three separate lawsuits, alleging that the regulations violated the ESA, Administrative Procedure Act, and National Environmental Policy Act. While the cases were pending, President Biden issued Executive Order 13990, directing federal agencies to review regulations issued during the Trump presidency. The White House specifically directed the Services to review the 2019 ESA regulatory changes. In light of the directive to review and reconsider the regulations, the Services moved for voluntary remand of the challenged regulations in all three cases. In their motion for voluntary remand the Services identified specific provisions of each of the challenged regulations that they intended to revise or rescind.
At the request of the plaintiffs, the Haaland court went beyond the Services’ requested relief of voluntary remand and vacated the challenged revised regulations. Although the Services had only identified limited potions of the regulations they intended to revise on remand, the Haaland orders vacated the rules in their entirety.
What Did the Challenged Regulations Do?
- The “Listing Rule,” 84 Fed. Reg. 45,020, modified how the Services add, remove, and reclassify endangered or threatened species and the criteria for designating listed species’ critical habitat under Section 4 of the ESA, and the implementing regulations, 50 C.F.R. Part 424. Specifically, the Listing Rule:
- Removed the phrase “without reference to possible economic impacts,” from the criteria for listing a species as endangered, which many commenters viewed as allowing economic impacts to be considered in listing decisions.
- Limited what could be considered as the “foreseeable future” for determinations that a “threatened species” may become endangered in the “foreseeable future.”
- Streamlined the criteria for delisting an endangered species.
- Narrowed the criteria for designating critical habitat and changed how unoccupied areas could be designated as critical habitat.
- The “Blanket Repeal Rule,” 84 Fed. Reg. 44,753, eliminated the Fish and Wildlife Service’s policy of automatically extending to newly listed threatened species the protections against “take” that automatically apply to endangered species. Under this Rule, the Fish and Wildlife Service would determine what protection was appropriate for newly listed threatened species on a case by case basis.
- Under Section 7 of the ESA, federal agencies are required to consult with the Services to ensure that any action “authorized, funded, or carried out” by an agency is “not likely to jeopardize” the continued existence of a listed species and does not result in the destruction or adverse modification of critical habitat. The “Interagency Consultation Rule,” 84 Fed. Reg. 44,976, revised, defined, or redefined multiple terms to reduce the number of actions that would be considered as jeopardizing a listed species or resulting in the destruction or adverse modification of critical habitat. For example, the Interagency Consultation Rule defined the term “environmental baseline” to include existing facilities that the action agency lacked discretion to modify or remove. It also revised or defined several other terms that could be read as narrowing the types of actions that would trigger the requirement to initiate formal consultation, and extended the triggers for reinitiating consultation to informal consultations.
What Happens Next?
When an agency’s rule is vacated by the court, the vacatur has the effect of reinstating the last version of the rule that was previously in force. This means that, at least for the time being, the rules that were in effect prior to the 2019 rules will again take effect.
Specifically, the following rules will now apply:
- The Listing Rule will revert to the 2016 rule promulgated at the end of the Obama administration. See 81 Fed. Reg. 7,414 (2016). The 2016 rule requires that a listing decision be made based on the best scientific and commercial information available, without reference to possible economic or other impacts. Under the 2016 rule, the Services are absolutely barred from considering economic impacts in making listing decisions. The 2016 rule also includes more requirements for delisting endangered or threatened species. With regard to critical habitat, the 2016 rule gives the Services broader authority to regulate the “destruction and adverse modification” of critical habitat and broader authority to designate critical habitat in areas that are currently unoccupied by the listed species.
- The Blanket Repeal Rule will revert to the 1978 rule (as last amended in 2004) that automatically applies the ESA’s prohibition on “take” to threatened species upon listing. See 43 Fed. Reg. 18,180 (1978).
- The Interagency Consultation Rule will revert to the 2016 rule, also promulgated at the end of the Obama administration. See 81 Fed. Reg. 7,214 (2016). The 2016 rule had broadened the definitions of “destruction or adverse modification” of critical habitat beyond that of previous rules, resulting in more actions requiring formal consultation under the ESA. The prior rules did not define certain key terms or included different definitions. For example, the definition of “environmental baseline” reverts to language that does not address existing structures.
It is worth noting that a number of states had challenged the 2016 rules in federal court. The states and the Services had reached a settlement agreement in 2018, requiring the Services to reconsider the 2016 rules. Therefore, the court in that case never reached the merits of the states’ challenge and the rules are again valid, despite the settlement.
It remains to be seen whether the Services will allow the 2016 rules to stay in place or if they will use the remand and vacatur of the 2019 rules as an opportunity to revisit those regulations based on their concerns identified in their request for voluntary remand. Whether or not the Services undertake a new rulemaking, there will almost certainly be additional lawsuits challenging whatever version of the regulations are in effect.
