I wanted to highlight a couple of Endangered Species Act cases that don’t involve land management agency decisions, but may have important implications for federal lands management.
- Gulf of Mexico ESA exemption
TRO denied in Center for Biological Diversity v. Burgum (D. D.C.)
As discussed here, the Trump Administration convened the Endangered Species Committee to consider waiving ESA prohibitions for all oil and gas exploration, development, and production activities in the Gulf of Mexico. On March 27, the district court denied Plaintiff’s motion for a temporary restraining order to postpone the meeting scheduled for March 31.
Government attorneys argued in court that the environmental group was challenging an exemption decision that hadn’t been made, and the judge questioned whether he had jurisdiction to grant the request. The meeting occurred as scheduled and the Committee took the unprecedented action of exempting oil and gas drilling activities from the requirements of ESA based on national security interests. This is the third time an exemption has been granted, the first time the exception has been based on national security interests, and the first time it has not involved a specific project.
Following the meeting, on March 31, the Center for Biological Diversity amended its complaint regarding the committee’s convening (in Center for Biological Diversity v. Burgum (D. D.C.)), adding a claim that Secretary Hegseth’s national security determination lacked a rational basis, fails to consider important factors, and runs counter to the evidence before him, and thus violates the APA
On April 1, Natural Resource Defense Council filed a second challenge, claiming that the national security determination and the committee decision implementing an exemption on that basis are both arbitrary and capricious.
On April 2, Healthy Gulf, Sierra Club, Friends of the Earth and Turtle Island Restoration Network filed a third case (Healthy Gulf v. Burgum (D. D.C.), alleging that the committee violated and exceeded its authority under the ESA by not following required procedures for granting an exemption, that the exemption was required to include mitigation measures, and that the exemption is overly broad rather than applicable to a particular existing agency action.
There are many species in the Gulf of Mexico that are listed as threatened or endangered, Rice’s whales being considered at greatest risk of extinction. The Secretary’s national security determination focuses on lawsuits brought by non-governmental organizations about the biological opinions that analyze oil and gas activities in the Gulf, and that require certain actions to protect listed species. He added, “It is necessary for national security to eliminate the threat of vacatur, rather than waiting to see if it materializes.” (It could be hard to distinguish federal lands energy production from offshore energy production in this regard.)
(The graphic included with this article summarizes the number of species listed under the ESA for each president. It seems like there should be an asterisk for waiving protection of any of those species, and maybe subtractions.)
Court decision in Center for Biological Diversity v. U. S. Department of the Interior (N.D. California)
On March 30, the district court vacated four modifications of the regulations governing consultation under the Endangered Species Act, which is required any time a federal action may affect a listed species or its critical habitat. For three of the modification, the court found, “The agency’s errors are serious. Its regulations contradict the text of the Endangered Species Act and undercut the efficacy of Section 7 consultation in protecting threatened or endangered wildlife and marine life.” The fourth was arbitrary and capricious.
One provision invalidated by the court was the definition of “effects of the action” that must be considered. It would allow federal agencies to address only effects of actions that are “reasonably certain to occur,” to which the court responded, “… to the extent that the “reasonable certainty” requirement excludes evidence that is the best available, it violates the statute.” The standard improperly allowed the Services to exclude scientifically supported but uncertain impacts from the jeopardy analyses.
Another provision would have explicitly stated that mitigation measures “do not require any additional demonstration of binding plans.” Focusing on the word “insure,” the court held that, “an agency does not satisfy its obligation under Section 7 to insure against harm to species or habitat by resting its conclusions on ‘plans’ that are merely proposed and non-binding.”
The court overturned a definition of “destruction or adverse modification” (of critical habitat) that would require federal actions to affect species’ critical habitat “as a whole” before habitat protections are needed, which would allow smaller projects to avoid this analysis and mitigation. The court found that use of the modifier ‘as a whole’ contradicts the statute because it “improperly permits piecemeal habitat degradation, contrary to the ESA’s categorical prohibition on adverse modification of designated critical habitat.”
The fourth provision pertained did away with a requirement for the Fish and Wildlife Service and the National Marine Fisheries Service to request a “reinitiation of consultation” with other agencies under certain circumstances. While there is no statutory requirement for the consulting agencies to reinitiate consultation, the agencies failed provide an adequate explanation for the change, in violation of the APA.
The court upheld two other amendments affecting key terms in Section 4 regulations on listing (“foreseeable future”) and determining critical habitat (“not prudent”). The court also found that the agencies complied with NEPA in issuing the 2024 Section 4 regulations using a categorical exclusion.
This court’s order “simply allows the relevant pre-2019 provisions to control” until currently pending proposed regulatory changes are completed. However, it’s not clear how much any of these changes would change actual practice, or how these interpretations of the law may also affect the currently pending regulatory changes. The article includes a link to the opinion.
Here’s an update on the definition of “harm” in the regulations governing incidental take of listed species. It currently includes significant modification or degradation of a species’ habitat, where such modification or degradation of habitat results in actual death or injury to that species, including through impairing essential behavioral patterns, such as breeding, feeding, or sheltering. The proposal is to remove the definition, but not replace it.
https://www.endangeredspecieslawandpolicy.com/final-rescission-of-harm-definition-arrives-at-oira
The word will still exist in the definition of take. The Services will still have to define it and apply it, albeit not through a predictable or transparent means. The Services cannot ignore the word. If harm does not mean what is defined in the current regs, what does it mean? Who decides and how? Will we use the legal definition in Black’s Law Dictionary, which I’d argue still includes habitat removal. Will it be redefined in a memo every 4 or 8 years?
Harm was the only term in the take prohibitions that could be applied to some pretty severe situations for endangered species. Habitat loss is the primary threat to many listed species. Without harm applying to habitat loss, one could remove all of the willow flycatcher habitat needed to support reproduction when the birds are in South America for the winter and that would no longer be take, but it would result in extinction. If the purpose of the Act is to prevent extinction, no longer considering habitat removal as a form of take seems like a considerable oversight. There would still be section 7s for federal actions, but the Services would lose the ability to minimize the effect of the take through terms and conditions in BOs, and there would no longer be a need for ESA compliance for private actions that do not cause other forms of take. It is highly probable that is where things are going.
And I think this falls under the category of “future litigation” (of interpretations of “take” as applied, if not to the change in the regulation) for reasons like these – thanks.