As the United States prepares to switch from one presidential administration to the next, the out-going Trump Administration is working to pass a series of last-minute regulations. Known as “midnight regulations,” it is common for out-going presidential administrations to spend time during their last months introducing or finalizing new administrative regulations. This article will provide an overview of the environmental midnight regulations which have the potential to impact agriculture. For a look at all of the midnight regulations from the Trump administration, and how far along each registration is in the rulemaking process, click here for a comprehensive overview.
Endangered Species Act
Many of the Trump administration’s midnight regulations concern the Endangered Species Act (“ESA”). Some of these are finalized regulations, meaning that they have already taken legal effect, while others are proposed regulations which are still going through the process to become law.
On December 16, 2020, the Fish and Wildlife Service (“FWS”) issued a final rule adopting a definition of the term “habitat” under the ESA for the first time since the was originally passed in 1973. The new definition will be crucial to the process of designating critical habitat. Under the ESA, anytime a species is listed as threatened or endangered, there is a requirement to designate “critical habitat” for that species. Typically, that designation includes areas that contain the biological and physical features which are essential to the species’ conservation. Harming or destroying designated critical habitat can be a violation of the ESA. This new regulation is in part a response to the recent United States Supreme Court decision in Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018). In that decision, the Court held that an area must first be habitat before it could be “critical habitat.” Because the term “habitat” was not defined in either the text of the ESA or its implementing regulations, FWS undertook a rulemaking effort to define the term.
The final rule from FWS defines “habitat” as “the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.” In other words, in order to be habitat an area must already contain the conditions necessary to support the species it is intended to be habitat for. This differs somewhat from the previous understanding of habitat under the ESA. Although the term “habitat” is not defined with the Act, the term “critical habitat” is defined to include any areas which FWS deemed “essential for the conservation of the species.” This could include areas which, at the time of critical habitat designation, did not contain the conditions necessary to support the targeted species. Once the new rule takes effect on January 15, 2021, only those areas which include the environmental conditions that can provide benefits to the target species will be eligible for critical habitat designation. To read the full rule, click here.
“Critical Habitat” Designation
Another final rule addressing the designation of critical habitat under the ESA was issued by FWS on December 18, 2020. That rule is intended to establish both a process and criteria for excluding certain areas from being designated as critical habitat. Section 4(b)(2) of the ESA provides that FWS may exclude an area from a critical habitat designation if the benefits of exclusion would outweigh designating the area critical habitat. The goal of this rule is to clarify when and how FWS will undertake an exclusion analysis, including a non-exclusive list of potential impacts that FWS may consider.
Under this new rule, whenever FWS publishes a proposal to designate critical habitat in the Federal Register, it will also make available for public comment the draft economic analysis of the designation. FWS will also identify the areas it has reason to consider for exclusion from critical habitat designation, and explain its reasoning. According to the regulation, “economic impacts” may include, but will not be limited to, “the economy of a particular area, productivity, jobs, and any opportunity costs arising from the critical habitat designation.”50 C.F.R. § 17.90(a). Additionally, the rule states that FWS will conduct an exclusion analysis when “the proponent of excluding a particular area (including but not limited to permittees, lessees or others with a permit, lease or contract on federally manage lands) has presented credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for that particular area.” 50 C.F.R. § 17.90(c)(2)(i). This would allow landowners and permittees on either federal or private land to request that FWS consider excluding their land from a critical habitat designation if doing so would prevent an economic harm. The rule is set to take legal effect on January 19, 2021. To read the full rule, click here.
Limiting ESA Consultation
A newly proposed regulation published in the Federal Register by FWS on January 12, 2021 seeks to clarify when the United States Forest Service (“USFS”) and the Bureau of Land Management (“BLM”) have to reinitiate ESA consultation. A central component of the ESA is the requirement that federal agencies consult with FWS over federal actions which could potentially harm listed species or designated critical habitat. When a federal agency carries out an on-going project, like a land management plan from USFS or BLM, it may be required to reinitiate ESA consultation in certain situations. Those situations include a new species being listed, new critical habitat being designated, the revelation of new information that the effects of the federal action may affect listed species or critical habitat, or the federal action is modified in such a way that causes an effect to listed species or critical habitat. 50 C.F.R. § 402.16(a).
The newly proposed rule from FWS would clarify that reinitiation of ESA consultation would not be required for previously approved land management plans from USFS and BLM when new information reveals that the effects of a plan may affect listed species or critical habitat in a way not previously considered. Additionally, reinitiation of consultation would not be required when a new species is listed or there is a designation of new critical habitat. Because many land management plans from BLM and USFS include agricultural activities, this proposed rule could affect permittees who operate on federal land. The comment period for this proposed rule is open until February 11, 2021. Comments can be submitted, and the full text of the rule can be found here.
“Strengthening Transparency in Regulatory Science” Rule
On December 30, 2020, the Environmental Protection Agency (“EPA”) finalized the rule known as Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information (“Strengthening Transparency in Regulatory Science,” “STRS”). The goal of this rule is to help increase the transparency of the scientific data underlying certain EPA actions. Most of the environmental statutes that EPA implements require the agency’s decisions to be based on the best available science. The STRS rule requires that EPA, when developing new regulations, will ensure that the data and models underlying scientific studies upon which the agency is relying, are “publicly available in a manner sufficient for independent validation.” Essentially, EPA will only rely on scientific studies if the data used in those studies are available to the general public. The broadness of this rule means that it has the potential to impact all future significant regulatory actions taken by EPA that rely on scientific studies.
According to EPA, the STRS rule will improve the public’s access to EPA’s scientific analyses and its regulatory actions. By increasing transparency, EPA hopes to give the public a better insight into the science upon which regulations are based. However, the STRS rule has received a certain level of controversy. Some argue that by favoring scientific studies with publicly available data, the EPA will be limiting the studies that it uses to draft regulations in such a way that the agency may no longer be able to rely on the “best available” science.
The STRS rule went into legal effect on January 6, 2021 after it was published in the Federal Register. To read the text of the rule, click here. For more information from EPA, click here. For an additional breakdown of the rule’s contents, click here.
Migratory Bird Treaty Act
A final rule addressing the scope of liability under the Migratory Bird Treaty Act (MBTA) was published by FWS in the Federal Register on January 7, 2021. The rule codifies the Trump administration’s interpretation of the MBTA limiting criminal liability under the act only to actions “directed” at migratory birds. Accordingly, the new rule will not extend criminal liability to actions that “incidentally” harm birds protected under the MBTA.
Originally passed in 1918, the goal of the MBTA is to prevent the harming or killing of any bird species listed under the Act. Under the MBTA, any act that harms or kills a protected bird carries criminal penalties. For decades, federal courts have disagreed over whether the MBTA applies to actions that incidentally take birds. Because some courts have concluded that incidental harm violates the MBTA while others have not, in some jurisdictions the unintentional harm of a bird protected by the MBTA is a criminal offense while in other jurisdictions is it not.
The new rule from FWS intends to solve that jurisdictional split by limiting criminal liability under the MBTA only to actions taken for the purpose of harming migratory birds. Actions that result in unintentional, or incidental harm of migratory birds will no longer be considered a violation of the MBTA’s prohibition on harm of protected birds. The rule is set to take legal effect on February 8, 2021. To read the full text of the rule, click here.
At this moment, it is unclear how many of the Trump administration’s midnight regulations will remain in place after the Biden administration takes office. Already, the in-coming administration as indicated that it intends to issue a memo to halt or delay many of the last-minute rulemaking efforts. Just as it is not uncommon for out-going administration to issue midnight regulations, it is also not uncommon for in-coming administrations to attempt to prevent those regulations from having lasting legal effect.
Additionally, some of the final rules could face legal challenges from plaintiffs seeking to invalidate the rulemakings. Already, several environmental groups have already filed a lawsuit to overturn EPA’s STRS rule, and it is possible that other rules could be similarly challenged. Each of these rules have the potential to affect the agricultural industry, and the outcome of each will be monitored.
To read the text of the ESA, click here.
To read the text of the MBTA, click here.
For additional National Agricultural Law Center resources on the ESA, click here.
For additional National Agricultural Law Center resources on Environmental Law, click here.