Several groups challenge new ESA rules

Several groups have joined forces to challenge the recent changes to Endangered Species Act implementation recently finalized by the administration, arguing the new regulations violate the ESA, the National Environmental Policy Act and other laws.

The updated regulations make a number of changes to ESA implementation, including abolishing the so-called 4(d) blanket rule, changing the designation of critical habitat, and increasing the availability of economic information during listing decisions.

Earthjustice filed suit in federal district court late last month, on behalf of the Center for Biological Diversity, Defenders of Wildlife, the Sierra Club, the Natural Resources Defense Council, the National Parks Conservation Association, WildEarth Guardians and the Humane Society of the United States.

In the complaint, the plaintiffs allege that the regulation changes undermine the fundamental purpose of the ESA and violate the act’s plain language and purpose. They also allege that the administration failed to consider the environmental implications of the changes, as required by the National Environmental Policy Act.

The administration supported the regulation changes, arguing that the previous regulations went beyond the Congressional intent of the ESA, as passed in 1973, according to E&E News.

The Wildlife Society expressed its concerns about several of the regulation changes last fall, during the public comment period. Its comments requested that the blanket 4(d) rule not be rescinded and requested clarification on other changes, such as the de-emphasis on designation of unoccupied habitat as critical habitat. The Society also recommended that the Service not impose a strict timeline on informal consultation.

The administration has recently indicated that more changes to ESA implementation are coming. Karen Budd-Falen, Interior’s deputy solicitor for parks and wildlife, said during a recent

Western Caucus Foundation event that the “next round of regulations is going to deal with…what is the definition of habitat,” according to E&E News. The Western Caucus Foundation is an arm of the Congressional Western Caucus.

Budd-Falen also indicated that the administration is planning to review implementation of Section 4(b)(2), which gives the Secretary of the Interior flexibility to exclude areas from a critical habitat designation if the benefits of doing so outweigh the benefits of designation, as long as such exclusion would not result in the extinction of the species.

The Congressional Western Caucus introduced a package of bills amending the ESA last year and plans to introduce a similar legislative package this fall.

Read TWS’ standing position on Threatened and Endangered Species and Position Statement on the U.S. Endangered Species Act