In August, 2019, the United States Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (collectively, “the Services”) published in the Federal Register final rules making significant changes to the Endangered Species Act (“ESA”). The rules, which took legal effect in September, 2019, represent the first major regulatory overhaul to the ESA since the Act was passed. Since the rules went into effect, lawsuits have been filed by environmental groups and states challenging the validity of the rules. On April 18, 2020, a federal judge in the United States District Court for the District of California issued orders in three separate cases challenging the new ESA rules. Two of the cases, both filed by environmental groups, were dismissed. However, the judge ruled not to dismiss the third case which was filed by 18 states, the District of Columbia, and New York City.

The ESA and Recent Regulatory Overhaul

The ESA was enacted in 1973 with the stated purpose of creating a program to conserve endangered and threatened species as well as the ecosystems upon which those species depend. Since its passage, the ESA has been seen as a decision by Congress to prioritize the protection of endangered species over the goals of other federal agencies.

To achieve its purpose, the statutory text of the ESA has set out a comprehensive program to limit harm to the species protected by the Act. Section 4 of the ESA requires the Services, who are tasked with administering the Act, to identify endangered and threatened species and their critical habitat. Section 7 requires federal agencies to consult with either FWS or NMFS before engaging in any action that may affect protected species. Section 9 prohibits the “take” of any endangered species, with “take” including killing, harming, and even harassing the species. Finally, Section 4(d) allows Section 9 to apply to threatened species.

The new regulations adopted by the Services in 2019 make several changes to how the ESA is implemented, including the factors that will be considered when deciding to list a species as endangered, the type of habitat that can be designated as critical habitat, and the amount of protection granted to threatened species. For more information on the recent changes, click here.

Cases Filed by Environmental Group

Two separate cases were filed by environmental groups challenging the validity of the new ESA rules. Both Ctr. for Biological Diversity v. Bernhardt, No. 4:19-cv-05206-JST (N.D. Cal. May 18, 2020), and Animal Legal Def. Fund v. Bernhardt, No. 4:19-cv-06812-JST (N.D. Cal. May 18, 2020) made similar arguments. The plaintiffs in each case argued that the new ESA rules violated the Administrative Procedure Act (“APA”), the federal statute governing the rulemaking process for regulatory agencies, because the new rules were unreasonable interpretations of the ESA. The plaintiffs in each case also argued that the Services had violated the National Environmental Policy Act (“NEPA”), the federal statute that requires agencies to examine the environmental impacts of their actions, by failing to prepare an adequate Environmental Impact Statement (“EIS”) addressing the impacts of the new rules. Finally, the Center for Biological Diversity argued in its case that the Services had violated Section 7 of the ESA by failing to consult with one another on the impacts the new rules would have to endangered species.

Both cases have been dismissed. In each case, the government moved for dismissal based on the plaintiffs’ lack of standing. After reviewing each case, the court agreed.

In order to bring a case in court, a plaintiff must have standing. In order to establish standing in federal court, a plaintiff must show that they have suffered an injury to a legally protected interest, that the injury was caused by the defendant’s alleged actions, and that the court has the ability to remedy the harm done to the plaintiff. Organizations like the Center for Biological Diversity and the Animal Legal Defense Fund may assert standing on behalf of their members when those members would have standing to bring the case on their own, and the case is relevant to the interests of the organization.

In both cases, the court concluded that the organizations had failed to show that it had standing either on behalf of their members or on behalf of themselves. The court concluded that in each case, the plaintiffs had failed to allege specific facts that showed how their members would suffer an injury as a result of the new ESA rules. The court noted that it was not enough for the organizations to state that their members use threatened and endangered species and critical habitat for recreational purposes. Instead, they had to show that at least one of their members would suffer an injury as a result of the new ESA rules. According to the court, if the organizations showed that one of their members’ interest in recreation was injured by the rules, that would be enough.

Although the court dismissed both cases, this is not the end of the line for either. The cases were dismissed without prejudice and both organizations have 21 days to refile their claims with enough facts to establish standing.

Case Filed by States

On September 25, 2019, a coalition of 18 states lead by the State of California filed State of California v. Bernhardt, No. 4:19-cv-06013-JST (N.D. Cal. May 18, 2020). Like the plaintiffs both of the previous cases, the states argued that the Services had violated both the APA and NEPA because the new rules were unreasonable interpretations of the ESA and the Services had failed to take a “hard look” at the environmental impacts of the rules in compliance with NEPA.

The defendants asked the court to dismiss the states’ case based on lack of standing. Like in the cases brought by environmental groups, the defendants argued that the states had failed to allege any specific facts to show that they were injured by the new ESA rules. However, unlike the two previous cases, the court concluded that the states had alleged specific facts to establish standing. According to the court, the states who had raised claims in State of California v. Bernhardt all showed that their territories are home to species listed under the ESA, critical habitat, and activities subject to ESA regulation and protection. Each state then alleged that the new rules would weaken ESA protections which would injure each state’s interesting in conserving its natural resources and biodiversity which could otherwise be used for commercial purposes. The court concluded that the states had established an actual injury to a legally protected interest and decided not to dismiss the case.

Going Forward

It is likely that the plaintiffs in Ctr. for Biological Diversity v. Bernhardt, and Animal Legal Def. Fund v. Bernhardt will refile their cases and attempt to establish standing. If they are successful, then both cases will move forward. All three cases have the potential to result in changes to how the ESA is administered. Changes to the ESA are relevant to the agriculture community because the statute can impact both land use and activities that may potentially affect listed species.

To read the court order in Ctr. for Biological Diversity v. Bernhardt, click here.

To read the court order in Animal Legal Def. Fund v. Bernhardt, click here.

To read the court order in State of California v. Bernhardt, click here.

To read the new ESA rules, click here.

To read the text of the ESA, click here.

For additional National Agricultural Law Center resources on the ESA, click here.