Back to square one: A federal judge has vacated three major Endangered Species Act (ESA) reforms made under the Trump administration, so the regulations will no longer be in place while the Biden administration rewrites the rules.
The Biden administration previously announced it would keep the Trump-era rules in effect while revising ESA regulations, but U.S. District Judge Jon S. Tigar ruled July 5 in favor of environmental groups and vacated the 2019 rules.
“Leaving the regulations in place will cause equal or greater confusion, given the flaws in the drafting and promulgation of those regulations,” Tigar wrote, invalidating the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service’s assertion that vacating the Trump-era rules would cause confusion to the public and other agencies.
“As previously noted, the Services have already announced their intention to reexamine and revise the regulations. In so doing, they put the public on notice that the regulations’ existence in their current form is unlikely,” Tigar wrote.
In December, the Biden administration agreed to redo three ESA rules after Earthjustice filed a lawsuit on behalf of the Center for Biological Diversity, Defenders of Wildlife, the Sierra Club, Natural Resources Defense Council, National Parks Conservation Association, WildEarth Guardians and the Humane Society of the United States.
“Trump’s gutting of endangered species protections should have been rescinded on day one of the Biden presidency,” said Noah Greenwald, endangered species director at the Center for Biological Diversity. “With today’s court ruling, the Services can finally get on with the business of protecting and recovering imperiled species.”
Vacated rules
The three rules vacated include:
• The listing rule — The Listing Endangered and Threatened Species and Designating Critical Habitat regulations modified how the agencies added, removed and reclassified endangered or threatened species. It also defined the criteria for designating critical habitat.
• The blanket rule repeal — The Prohibitions to Threatened Wildlife and Plants regulations required USFWS to adopt species-specific rules for identifying prohibited “take” of a threatened species.
• The interagency cooperation rule —The Interagency Cooperation regulations under ESA Section 7 revised how the agencies work with other agencies to prevent proposed agency actions that could harm listed species or critical habitat.
By vacating the three rules, the ESA regulations for listing decisions, critical habitat designations, Section 7 consultations and take prohibitions will return to their pre-August 2019 rules.
Reactions
Agriculture and industry groups, who largely praised the Trump-era rules, were disappointed in the vacating of the rules. An appeal to the 9th Circuit Court is to be expected by the several states and industry groups involved in the District Court’s suit.
“According to NCBA, this regulatory whiplash increases uncertainty, expands government overreach under ESA and will worsen the delays and backlog of the consultation process,” the Kansas Livestock Association said in a statement.
The National Cattlemen’s Beef Association (NCBA) said it is actively involved in defending the ESA rules put in place by the Trump administration. “Staff are evaluating next steps and will continue advocating for a regulatory approach to ESA that is science-based, rooted in current conditions on the ground and cognizant of the economic impact these decisions have on rural communities,” the statement read.
Environmentalist groups praised the decision. The Sierra Club, one of the suit plaintiffs, said the decision will restore vital protections for species newly listed or reclassified as threatened.
“It will also wipe away changes that made it harder to list species and designate critical habitats for them, introduced avenues for economic considerations to improperly influence listing decisions, weakened the protections provided by the agency consultation requirement, and in many ways undermined the ability of the ESA to provide protections in the face of climate change,” the group said in a statement. — Anna Miller, WLJ managing editor
