Seventeen States Sue Trump Administration over Recent Endangered Species Act Revisions

On September 25, seventeen states from California to Massachusetts filed a complaint in federal court against the Trump administration hoping to stop recent regulatory revisions meant to substantially change how Endangered Species Act (ESA) protections are considered and enforced. The complaint, filed in the U.S. District Court for the Northern District of California, follows a similar challenge by several environmental groups, including the Humane Society and Sierra Club, filed in August.

The Trump administration finalized its ESA regulations in mid-August, and the changes—as applied to ESA sections 4 and 7—went into effect on September 26. Section 4 of the ESA, among other things, generally concerns adding or removing species from the Act’s protections and designating critical habitat, while section 7 covers consultations with other federal agencies. One significant revision, termed the “Listing Rule,” applies to section 4 and eliminates the requirement that the Departments of the Interior (DOI) and Commerce (DOC) determine whether or not a species warrants an endangered or threatened listing “without reference to possible economic or other impacts” of such a determination. However, the changes withhold from agency regulators the authority to decline to list a species based on such economic or other impacts. If the agency attempted to do so, it would violate the text of the ESA. As written, the ESA explicitly states that listing determinations must be made solely on the basis of the best scientific and commercial data available, according to five statutory factors.

Another major change restores the ESA’s distinction between the regulation of endangered and threatened species. When Congress enacted the ESA in 1973, it reserved a provision prohibiting activities that would affect any member of a species or its habitat for “endangered” species (which are species at risk today), but not “threatened” species (which are species likely to become endangered “within the foreseeable future”). In 1975, however, the DOI issued a blanket rule, termed the “4(d) Rule,” that extended the prohibition to all threatened species, unless it adopted a special rule relaxing the prohibition for a particular species in the future. The Trump administration’s revisions repeal the 4(d) Rule, thereby restoring Congress’ original distinction between threatened and endangered species, and resulting in comparatively lessened protections for threatened species.

Additionally, one regulatory revision makes several changes to the interagency consultation process required by the ESA. The ESA requires agencies to consult with the DOI and the DOC if the activities they undertake, approve, or fund may affect a ESA-listed species. If any activity will jeopardize a species’ survival or adversely modify its habitat, it is prohibited under the ESA. However, this consultation process has often been criticized as overly long and expensive. Accordingly, the Trump administration’s revision, termed the “Interagency Consultation Rule,” adopts several changes to attempt to streamline this interagency process, with most being of a technical variety.

In their complaint, the seventeen state plaintiffs first allege that the DOI and DOC’s adoption of several of the new ESA changes violates the Act’s plain language, structure, and purpose, and exceeds the scope of the agencies’ jurisdiction, authority, and discretion under the ESA in several ways. Specifically, the plaintiffs contest the Services’ adoption of the Listing Rule, the Interagency Consultation Rule, and the Section 4(d) Rule, arguing that the DOI and DOC acted in a manner that constituted an abuse of discretion that is not in accordance with law and is in excess of the Departments’ statutory authority, in violation of the ESA and Administrative Procedure Act (APA).

The complaint next argues that the Departments: (1) failed to provide a reasoned analysis for the three previously mentioned rule changes, (2) relied on factors Congress did not intend for them to consider, (3) offered explanations that run counter to the evidence before the Departments, and (4) entirely overlooked important issues at the heart of their species-protection duties under the ESA. Furthermore, the state plaintiffs allege that the Departments failed to provide a meaningful opportunity to comment on several aspects of the rule changes that were included in, and are not logical outgrowths of, the proposed changes. Accordingly, the states argue that the Departments acted in a manner that was arbitrary, capricious, an abuse of discretion, and not in accordance with law, and failed to follow the procedures required by law, in violation of the APA.

As one might expect, the public’s reaction to the Trump administration’s ESA changes has been extremely varied. Agency representatives and advocates of reduced regulatory influence in private affairs laud the changes as “long overdue” and “necessary regulatory changes that will recover more imperiled species facing extinction than previously accomplished over the span of [the ESA].” (https://www.washingtonpost.com/climate-environment/2019/09/25/trump-administration-weakened-endangered-species-act-rules-today-state-attorneys-general-sued-over-it/) However, critics of the changes argue that maintaining the previous rigor of the ESA is essential for protecting key species such as the bald eagle and California condor (both protected species that relied on the ESA in the past to rebuild their populations). Depending on the outcome of this lawsuit and others like it, the way the ESA is administered and enforced may be quite different in years to come than it has been in the past. Only time will tell whether those differences prove ultimately beneficial or detrimental to the endangered and threatened species listed under the ESA. View the full text of the complaint here.