Trump administration Endangered Species Act (ESA) reforms that were thrown out by a federal court have been at least temporarily reinstated after a federal appeals court ruled recently that a lower court erred in its decision.
The reforms were brought about by a series of rules put in place under then-President Donald Trump in 2019. The Trump administration and agriculture groups said the reforms would allow landowners to tailor protections to species’ individual conservation needs but would not have affected protections for species identified as threatened.
American Farm Bureau Federation (AFBF) President Zippy Duvall said in a news release the reforms were needed to provide certainty to farmers and ranchers.
“This ruling doesn’t bring an end to the debate about modernizing the ESA,” he said, “but it sends an important message to the 9th Circuit lower courts that their job is to rule based on the law. They can no longer vacate a rule unless they determine it is unlawful.”
Back in July this year, the rule supported by agriculture groups was vacated by the U.S. District Court for the Northern District of California.
On Sept. 21, the U.S. Court of Appeals for the 9th Circuit reversed that decision and said, “It is apparent that the district court in its July 5, 2022, order clearly erred in vacating the 2019 rules without ruling on their legal validity.”
The appeal was filed at the end of August by AFBF on behalf of the Washington Cattlemen’s Association.
Does not end lawsuit
Brook Duer, staff attorney at Pennsylvania State University’s Center for Agricultural and Shale Law, told DTN the 9th Circuit ruling does not effectively end the lawsuit in the District Court.
“This order means that the District Court’s invalidation of the ESA rule is stayed—the ESA rule remains effective for the time being—and now the District Court is being told to get back to work on the case,” he said.
The District Court had a motion before it to amend its prior judgment in the case, or a motion to reconsider. Duer said the 9th Circuit ruling amounts to a stay in the case, giving the District Court a chance to reconsider.
Blanket rule
The U.S. Fish and Wildlife Service (USFWS) in 2019 had removed a blanket rule in the ESA that automatically granted the same protections for threatened species that are available for endangered species.
In vacating and remanding the rule, U.S. District Judge Jon S. Tigar said the Trump rule contained a “serious” error in the way the rule was drafted that eliminated “so-called blanket protections for species listed as threatened.”
The ESA reforms developed as a result of the Trump executive order did not affect protections for species that were listed as threatened.
Environmental groups, including the Center for Biological Diversity, sued the Biden administration, arguing the Trump rules removed needed protections.
Ag groups intervened
A number of states and agriculture groups intervened in the case, including Nebraska and Kansas. Ag groups intervening included AFBF, National Cattlemen’s Beef Association, Public Lands Council, Washington Cattlemen’s Association and the Pacific Legal Foundation. They were joined in the defense of the Trump regulation by the likes of the American Petroleum Institute.
In June 2021, USFWS announced its intention to rescind and revise the rule.
The Biden administration had asked the court to remand the rule to the services while leaving the rule in place during a rewrite. USFWS indicated in documents filed in the case that a remand and vacation could create confusion among the regulated public.
Back in 2019, Gary Frazer, then-assistant director for endangered species at USFWS in the Trump administration, said during a news conference the ESA included protections for species for the “foreseeable future” without defining the term.
Listed species
According to a March 2021 report by the Congressional Research Service, more than 2,400 species have been listed as threatened or endangered as a result of the ESA.
As of October 2020, 91 species had been delisted under the ESA since it was enacted in 1973, or about 3.7% of the total number of species ever listed.
The Trump rules required lands designated as unoccupied critical habitat to include at least one physical or biological feature needed to conserve the species.
The rules required that decisions made to add or remove species from the threatened and endangered lists would continue to be based solely on the best available scientific and commercial information.
The Trump administration urged federal agencies to consider economic factors when it comes to federal rules and regulations.
Changes made to Section 7 of the ESA made it less likely for government actions to jeopardize the continued existence of listed species or destroy or adversely modify their critical habitat. — Todd Neeley, DTN staff reporter
