Groups threaten suit over ESA blanket rule

A pair of conservation groups has issued a formal notice of intent to sue the federal government over the reinstatement of the Endangered Species Act (ESA) “blanket rule,” a move they argue violates federal law and undermines conservation efforts.

The Property and Environment Research Center (PERC) and the Rocky Mountain Elk Foundation (RMEF) sent a notice to the Department of the Interior and the U.S. Fish and Wildlife Service (USFWS) of their objections to the ESA’s 4(d) blanket rule. They argue the rule unlawfully erases the ESA’s distinction between endangered and threatened species, restricts management flexibility, hampers habitat restoration and discourages recovery efforts by making vulnerable species a liability for landowners and states.

“While the blanket rule is certainly easier for bureaucrats to administer, it doesn’t work for species like the gray wolf, greater sage grouse, and arctic grayling,” said Jonathan Wood, PERC vice president of Law and Policy. “Given the challenges of recovering America’s imperiled wildlife, the Endangered Species Act needs to be as effective as possible by applying science, harnessing incentives, and adapting to real world outcomes.”

Background

When USFWS lists a species as either threatened or endangered, it triggers regulatory actions, including automatic prohibitions under Section 9 of the ESA against “take” and other activities that affect endangered species. For threatened species, however, the ESA mandates species-specific regulations under Section 4, designed to promote recovery efforts tailored to their unique needs​, the letter explained.

The blanket rule, first implemented in 1975, extended Section 9’s prohibitions to threatened species without species-specific analysis and, according to the letter, was applied to 75% of those listed under its jurisdiction. The groups contend the approach was less effective, with USFWS recovering species at about one-third the rate of the National Marine Fisheries Service (NMFS), which uses a tailored regulatory strategy.

USFWS rescinded the blanket rule in 2019, citing benefits such as reduced regulatory barriers, improved conservation actions and better resource allocation. This tailored approach also incentivized private landowners and stakeholders to support recovery efforts by offering potential regulatory relief as species neared recovery​, the letter said.

The groups said that despite these findings, the USFWS reinstated the blanket rule on April 5, 2024, without adequately addressing the previous evidence or public comments. According to the letter, USFWS cited three reasons for reinstating the blanket rule.

First, the agency claimed that a species’ threatened status alone warrants the automatic application of Section 9’s prohibitions, a position the groups argue ignores the ESA’s requirements for tailored, species-specific regulations. Second, USFWS suggested that the blanket rule prevents the potential failure to issue regulations deemed “necessary and advisable” for conservation, a rationale PERC and RMEF assert is unsupported by evidence of such failures since the rule’s rescission in 2019.

Lastly, the letter said USFWS leaned on administrative convenience—called the “easy button” by the groups—offering reasons that neither justify the blanket rule’s automatic application nor align with the ESA’s conservation standards under Section 4(d)​.

Letter assertions

The groups assert that USFWS lacks the authority to issue a blanket rule that reverses Congress’s decision to regulate endangered and threatened species differently. Congress explicitly limited Section 9’s automatic prohibitions to endangered species, choosing not to extend them to threatened species to encourage recovery efforts tailored to their specific needs.

While USFWS has relied on a D.C. Circuit decision to justify the blanket rule, PERC and RMEF note that this reasoning conflicts with rulings from other circuits and relied on the now-overturned Chevron deference. Congress’s intent was clear: regulations for threatened species must be tailored to their circumstances, not applied automatically​, they said.

PERC and RMEF further write that the reinstatement of the blanket rule is arbitrary and capricious, as it disregards key evidence and fails to address critical comments made before its reinstatement. The groups provided data showing that the blanket rule has not advanced species recovery, citing that NMFS has achieved better outcomes by tailoring regulations to individual species. Despite this, the groups claim USFWS neither addressed these findings nor explained how the rule aligns with the ESA’s definition of conservation as a recovery standard.

The letter asserts that USFWS dismissed this evidence and its implications, insisting the blanket rule is only temporary, though the agency has never replaced it with tailored rules. Additionally, the groups said the agency refused to consider how the rule’s costs could undermine conservation incentives for states and private landowners, further contradicting the ESA’s requirements.

The groups are asking USFWS to withdraw the rule within 60 days of the letter dated Dec. 10, 2024, or they will file suit asking for declaratory and injunctive relief. — Charles Wallace, WLJ contributing editor

(Editor’s note: The headline was updated from “greens” to “groups” based on feedback from the Rocky Mountain Elk Foundation.)