California Leads Charge Against Parting Gut of Endangered Species Act by Trump

California launched its attack on President Donald Trump’s final attempt at gutting the Endangered Species Act on his way out the door.

This Sept. 27, 2011 photo shows the endangered gopher frog, currently found in the wild only in Mississippi. (AP Photo/Gerald Herbert, File)

OAKLAND, Calif. (CN) — California fired back on the Trump administration’s eleventh-hour attempt to gut the Endangered Species Act before the president leaves office Wednesday. 

A federal lawsuit led by state Attorney General Xavier Becerra targets two final rules issued in December —  the “Habitat Definition Rule” and “Habitat Exclusion Rule” — as the complaint describes them, that narrow the definition of “habitat” in a way that shrinks the amount of land designated as protected under the Endangered Species Act and adopt a new process for excluding areas from critical habitat designations.

“In its final days, the Trump administration has struck not one but two damaging blows to the federal Endangered Species Act and the protections it offers to our precious fish and wildlife,” Becerra said in a statement Tuesday. “There’s too much at stake to pull punches. We’re going to court today because if we don’t act now, there might not be a tomorrow for these endangered species.”

Federal agencies under the Trump administration have made overhauling environmental rules and undoing “unnecessary regulations” an underlying goal going back to at least 2018, when conservationists sounded the alarm on the gradual trimming of critical habitat areas.

“I know that gutting the Endangered Species Act sounds like a plan from a cartoon villain, not the work of the president of the United States, but unfortunately that is what we’re dealing with today,” Massachusetts Attorney General Maura Healey said in August 2019, after U.S. Fish and Wildlife Service and the National Marine Fisheries Service — two regulatory bodies in charge of enforcing the act — announced plans to weaken three parts of the law.

The announcement prompted a multistate lawsuit that is currently before a federal judge in Oakland.

Becerra’s latest legal action, joined by 17 other states and New York City, says the new rules leave no room for a species’ need to migrate in response to existential threats like habitat destruction and climate change. It also fails to account for the possibility of habitat restoration. 

The so-called “exclusion rule” will result in even more reductions to protected land, the lawsuit claims, by requiring the U.S. Fish and Wildlife Service to conduct an “exclusion analysis” when considering areas for critical habitat designation. 

This will involve considering a variety of non-biological factors, including economic ones, when deciding whether an area should be excluded from protection. The agency will have to defer to outside experts and “only consider information from proponents of critical habitat exclusion” when doing this analysis, the lawsuit states, and exclude an area if it “determines that the benefits of excluding a particular area from critical habitat outweigh the benefits of specifying that area as part of critical habitat.”

Becerra and his co-plaintiffs want a federal judge to set the rules aside, finding they violate the language and purpose of the Endangered Species Act and lack any reasoned basis.

The lawsuit notes Fish and Wildlife issued the rules in response to a U.S. Supreme Court ruling in 2018 in a case dealing with how the agency defines and designates critical habitats. 

Writing for the unanimous court in Weyerhaeuser Co. v. United States Fish and Wildlife Service, Chief Justice John Roberts said a lower court failed to consider that more than 1,500 acres of forested land in Louisiana, designated a “critical habitat” for the endangered dusky gopher frog by Fish and Wildlife in 2012, was no longer occupied by that particular amphibian.

“Only the ‘habitat’ of the endangered species is eligible for designation as critical habitat,” Roberts wrote.

The high court sent the case back to the Fifth Circuit for review.

Becerra said the agency’s new definition of habitat is not consistent with or required by the Supreme Court’s decision in Weyerhauser.

The Fish and Wildlife Service declined to comment on the lawsuit.

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