Judge Advances States’ Fight Against Rule Changes to Weaken Endangered Species Act

(Devon Ravine/Northwest Florida Daily News via AP, File)

OAKLAND Calif. (CN) — A federal judge gave the green light to a California-led lawsuit challenging new Endangered Species Act rules the states claim will gut protections for more than 1,600 plant and animal species in the United States.

The regulations loosen requirements on the consultation process used to prevent harm to endangered species from federal activities, repeal automatic, blanket protections for species listed as threatened, and expand exemptions for critical habitat designations. 

While the Endangered Species Act requires that federal agencies base their decisions to list a species as threatened or endangered, “solely on the basis of the best scientific and commercial data available,” the new rules now allow the government to consider economic factors.

The proposed changes were announced in July 2018 as part of President Donald Trump’s Executive Order 13777, directing federal agencies “to lower regulatory burdens.”

California sued in September 2019, joined by Maryland, Colorado, Michigan, Connecticut, Illinois, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington state, the commonwealths of Massachusetts and Pennsylvania, and the District of Columbia.

Tigar found the states’ complaint passed procedural muster with detailed allegations on how the new rules will affect their environmental and economic interests.

“State plaintiffs’ alleged procedural harms are sufficient to demonstrate a cognizable injury-in-fact. First, the FAC [first amended complaint] establishes a geographical nexus between the state plaintiffs and the locations subject to the final rule by alleging facts about the species, critical habitats, facilities, and projects within each state which are subject to the revised regulations,” Tigar wrote.

With the alleged weakening of federal protections, Tigar also found it “reasonably probable” that states will be economically burdened by shouldering the responsibility of protecting imperiled species and habitats.

“When a species goes extinct, there’s no turning back the clock,” California Attorney General Xavier Becerra said in a statement. “In California, we recognize the importance of biodiversity, and we cherish the hundreds of endangered species that make their home in this state. We commend the court for moving this challenge onward and look forward to continuing our strong fight against these unlawful rules.”

The states’ lawsuit follows a separate challenge launched by The Center for Biological Diversity, Sierra Club, WildEarth Guardians, and four other groups last August.

Brett Hartl, government affairs director at the Center for Biological Diversity, told Courthouse News last year that the regulations will help advance industrial development at the expense of environmental scrutiny. “Collectively, they weaken the law dramatically,” he said. Also ruling on the groups’ lawsuit Monday, Tigar found they failed to demonstrate how they would be harmed by the new rules. 

Tigar found the complaint too ambiguous in its current form, writing that it “fails to establish a concrete and particularized injury in fact with respect to conservation group plaintiffs’ members.”

“Federal defendants argue that the conservation group plaintiffs cannot demonstrate standing on behalf of its members because they do not ‘allege any specific facts’ as to how members are harmed by the final rules. The court agrees,” Tigar wrote, dismissing the complaint with leave to amend.

Because the federal government moved to dismiss the lawsuit on facial grounds, Tigar said he would only look at the complaint as written and would not consider declarations the groups filed showing how their members would be forced to divert resources and spend more time, money, and effort petitioning various federal agencies on behalf of endangered and threatened species. 

Earthjustice attorney Kristen Boyles, who represents the conservation groups, said the case is far from over. 

“In granting the motion to dismiss, he gave us 21 days to file an amended complaint that addresses facts he felt were presented to the court in the wrong form (as declarations in opposition to the motion to dismiss, as opposed to part of the complaint),” she said in an email. “We’ll be turning to filing an amended complaint this week, and we welcome the court making sure all legal technicalities are met in such an important case.”

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