In 2019 and 2020, the Trump Administration adopted multiple regulations impacting how the Endangered Species Act (“ESA”) is carried out. The new rules addressed several key aspects of the ESA, and were regarded as controversial. Since the Biden Administration took office in 2021, many of the 2019 and 2020 regulations were altered or rolled back, and others have been the target of legal challenges. This has led to a variety of regulatory changes occurring during a relatively short amount of time.
The following is an update on the regulatory state of the ESA as of November 2022.
The ESA was passed by Congress in 1973 for the purpose of conserving both endangered species, and the ecosystems upon which those species depend. In order to achieve this goal, the ESA requires all endangered and threatened species to be identified and added to a list maintained by the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (collectively, “the Services”). A species can be listed as either “threatened” or “endangered” under the ESA. If a species is listed as “endangered” it means the species is “in danger of extinction throughout all or a significant portion of its range[.]” 16 U.S.C. § 1532(6). If a species is listed as “threatened” it means that the species “is likely to become an endangered species within the foreseeable future[.]” 16 U.S.C. § 1532(20).
Species listed under the ESA receive certain protections, and are eligible for a designation of critical habitat, typically the habitat identified by the Services as necessary for the survival and recovery of the species. While the Services are the primary agencies responsible for administering the ESA, all federal agencies are charged with ensuring that their actions do not harm listed species or any designated critical habitat. To do so, federal agencies must assess the potential impacts that any proposed agency action may have on listed species or critical habitat. If an agency finds that its action may affect an endangered or threatened species, it must reach out to the Services for further consultation.
The regulations adopted by the Trump Administration in 2019 and 2020 addressed several of the ESA’s key provisions. Those regulations included:
- The “Listing Rule” that changed how species could be added to, removed from, or reclassified under the ESA list of endangered and threatened species, and the criteria for designating critical habitat;
- The “Interagency Consultation Rule” that modified the consultation process between the Services and other federal agencies to ensure that agency actions do not harm listed species or designated critical habitat;
- The “Blanket Rule Repeal” which eliminated the regulatory mechanism used by FWS to automatically provide threatened species with the same protections as endangered species;
- The “Critical Habitat Exclusion Rule” which altered the process used the Services to determine which areas to exclude from critical habitat designation; and
- The “Habitat Definition Rule” which created a specific definition for the term “habitat” for the first time in the ESA’s history.
For more detailed information on the Trump Administration’s ESA rules, see here and here.
Rules Revisited by FWS
The same day that the Biden Administration took office, President Biden issued Executive Order 13990 which directed every federal agency to review any regulation adopted during the previous four years. The Order identified certain regulations that should receive particular review, including the 2019 and 2020 ESA regulations.
In an announcement issued on June 4, 2021, the Services stated that they had finished their review of the Trump Administration’s ESA regulations, and were planning to rescind or revise most of the new rules. Specifically, the Services stated that they would:
- Revise the Listing Rule to reinstate previous language that decisions on whether to list a species under the ESA are made “without reference to possible economic” impacts;
- Revise the Interagency Consultation Rule to restore previous definitions that had been altered by the 2019 rule;
- Rescind the Blanket Rule Repeal so that once again any species listed as threatened by FWS would automatically be granted the same protections as those species listed as endangered;
- Rescind the Critical Habitat Exclusion Rule and return to the process previously used by the Services for deciding when to exclude an area from critical habitat designation; and
- Rescind the Habitat Definition Rule so that the term “habitat” would once again be undefined under the ESA.
Shortly after the announcement, the Services began undertaking the proposed rulemaking processes. As of November 2022, some of those rulemakings have been completed while others are on-going. As of July 25, 2022, the Habitat Definition Rule has been formally repealed. “Habitat” no longer has a specific definition under the ESA. The Critical Habitat Exclusion Rule was officially rescinded on August 22, 2022. Accordingly, the Services have resumed their previous method of determining when to exclude certain areas from critical habitat designations. Both rules were rescinded in their entirety.
The Services are still working through the rulemaking process for their other proposed revisions to the Trump Administration regulations. These rulemakings are expected to conclude through 2023 and 2024.
Recent Legal Challenges
Along with review from the Service, the Trump Administration ESA rules have also been subject to court challenges. Various lawsuits were filed after the rules were initially passed, including Ctr. for Biological Diversity v. Haaland, No. 19-cv-05206 (N.D. Cal. July 5, 2022). The suit was originally brought in August 2019, shortly after the first round of new ESA rules were adopted. In their complaint, the plaintiffs claimed that the new rules were unlawful and asked the court to overturn them. When the second round of new ESA rules were adopted in 2020, the plaintiffs amended their complaint to include those rules as well. Although the lawsuit was paused for several months during 2021 to allow the Biden Administration time to review the regulations, the case was resumed in late 2021 and the plaintiffs continued to request that the court overturn the Trump Administration regulations.
In July 2022, the court granted the plaintiffs’ request and vacated the regulations. In reaching its decision, the court first noted that it would be overturning the regulations without adjudicating the merits of each party’s claims. The court reasoned that it could do so because the defendants in the case had asked the court to send the regulations back to FWS for further review. Other courts have found that when an agency asks for a challenged regulation to be sent back to the agency for review, the court may decide to overturn the regulation without considering the merits. After determining that it could vacate the regulations, the court considered whether vacatur was appropriate. The test for determining whether it is appropriate to overturn an agency regulation requires the court to consider whether the agency could adopt the same rule again, and whether any “disruptive consequences” could result from vacatur. In Ctr. for Biological Diversity v. Haaland, the court found that FWS was unlikely to adopt the same rules again because the agency had stated that it would not do so. The court also found that overturning the Trump Administration ESA regulations would not cause any disruption or harm because FWS had already announced a plan to revise the rules. Accordingly, the court vacated the regulations.
Following the district court’s ruling, the remaining Trump Administration ESA rules were overturned. However, the court’s decision was immediately appealed to the Ninth Circuit Court of Appeals. In a brief ruling issued on September 21, 2022, the Ninth Circuit found that the lower court had wrongly overturned the challenged regulations. The Ninth Circuit determined that the lower court should have adjudicated the parties’ claims before issuing vacatur. Therefore, the court reinstated all of the overturned ESA regulations and sent the case back to the lower court for further review.
Where We’re At, Where We’re Going
All of the recent changes to the ESA regulations have at times been difficult to follow. As of November 2022, the state of the ESA regulations is as follows:
- The Habitat Definition Rule has been fully rescinded. The term “habitat” is once again undefined under the ESA.
- The Critical Habitat Exclusion Rule has been fully rescinded. The Services have gone back to using their previous procedures to determine when to exclude an area from critical habitat designation.
- The Listing Rule is still in effect. It was briefly overturned by the district court in for Biological Diversity v. Haaland, but was reinstated by the Ninth Circuit. FWS is currently carrying out a rulemaking process to revise the rule.
- The Interagency Consultation Rule is still in effect. It was briefly overturned by the district court in for Biological Diversity v. Haaland, but was reinstated by the Ninth Circuit. FWS is currently carrying out a rulemaking process to revise the rule.
- The Blanket Rule Repeal is still in effect. It also was briefly overturned by the district court in for Biological Diversity v. Haaland, but was reinstated by the Ninth Circuit. FWS is currently carrying out a rulemaking process to rescind the rule.
At the moment, some of the Trump Administration ESA regulations have been rescinded by FWS while other rules are still in the process of being revisited. The rulemakings for those outstanding regulations are expected to be completed during the next two years. Until then, the Trump Administration regulations will remain in place unless a court overturns them again. The court in Ctr. for Biological Diversity v. Haaland will need to fully adjudicate the claims raised in the case before issuing another decision to vacate the rules which could take an uncertain amount of time. It is likely that the current state of the ESA regulations will remain as they are outlined above for a while longer.
Click to read the Listing Rule, the Blanket Rule Repeal, the Critical Habitat Exclusion Rule, the Habitat Definition Rule, and the Interagency Consultation Rule.
To read the regulations rescinding the Habitat Definition Rule and the Critical Habitat Exclusion rule, click here and here.
To read the lower court’s opinion in Ctr. for Biological Diversity v. Haaland, click here.
To read the text of the ESA, click here.
For more information on the ESA from the National Agricultural Law Center, click here.