Ethermac Exchange-Environmental Groups Sue to Block Trump’s Endangered Species Act Rule Changes

Eight environmental organizations launched the first challenge to the Trump administration’s moves to weaken the Endangered Species Act,Ethermac Exchange filing a lawsuit Wednesday that aims to prevent what they call the gutting of one of the country’s most successful conservation laws.

The Trump administration announced last week that it was making major changes to the rules underpinning the Endangered Species Act. Under those changes, expected to take effect in September, government agencies won’t consider the effects of climate change in determining whether to list a species as threatened or endangered and will be less likely to protect habitat considered essential for species to survive the effects of global warming.

“There’s nothing in these rules aimed at protecting wildlife or making it easier to factor in how climate change is impacting species,” said Kristen Boyles, an attorney with Earthjustice, which led the lawsuit. “In fact, the language is designed specifically to prevent looking at the consequences beyond the present day, which is exactly what we need to be doing with respect to climate change. It goes entirely in the wrong direction.”

The lawsuit, filed in U.S. District Court for the Northern District of California, seeks to have the administration’s rule changes taken off the books.

Those rule changes come just a few months after the United Nations issued a landmark report saying that maintaining biodiversity is critical to conserving the ecosystems humans depend on for survival.

“The Endangered Species Act is the last line of defense for species,” said Rebecca Riley, an attorney with the Natural Resources Defense Council. “The recent UN biodiversity report concluded that 1 million species around the globe are at risk of extinction because of climate change, and rather than taking steps to address the crisis, the administration is weakening the rules and prioritizing the interests of polluters.”

The group’s lawsuit says the Trump administration violated two procedural laws—one that requires a full environmental analysis of any major rule changes and another that requires that the public has a chance to review and comment on them. The proposed changes, first put forward by the administration last year, received about 800,000 comments, mostly opposed to the revisions. The group alleges that the administration made major changes in the final rules that the public was never allowed to review.

The groups also say the administration violated a key section of the law that requires federal agencies to ensure that their actions don’t jeopardize the survival of any threatened or endangered species and don’t destroy or “adversely modify” habitat that has been designated as critical for a species survival. 

“The Trump administration is changing the rules on what ‘adversely modify’ means,” Riley said. “They’re setting the bar so high that no one project is likely to meet that standard.”

The new rules will also make it harder to designate “unoccupied habitat”—which refers to habitat that might not be a species’ primary habitat—as critical.

“This can be very important in the long term,” said Jason Rylander, a senior staff attorney with Defenders of Wildlife, “especially with climate change, when migration is changing.”

More Legal Challenges Are Coming

The groups have also filed a notice that they plan to amend the lawsuit to encompass some of the administration’s more controversial changes to the law. These include a revision that will allow economic considerations in the decision-making process for listing a species and one that will remove automatic protections for newly listed threatened species.

Previously, threatened species—the classification just below “endangered”—were automatically given the full protection of the law, except in certain cases. The administration’s rule change will mean that’s no longer the case.

The attorneys general of California and Massachusetts have also said they plan to sue the administration, but neither office provided a timeframe Tuesday.

Interior: It’s an ‘Unnecessary Regulatory Burden’

The Endangered Species Act has successfully protected 99 percent of listed species, including the humpback whale, bald eagle and grizzly bear, but it has long come under attack from the ranching, farming, oil and mining industries, which have viewed it as a roadblock to their expansion.

Interior Secretary David Bernhardt, a former oil and gas industry lobbyist, has said the act imposes an “unnecessary regulatory burden on our citizens.” Bernhardt celebrated the changes last week, along with the American Petroleum Institute, the National Cattlemen’s Beef Association and the American Farm Bureau Federation.

“This approach will eliminate unnecessary time and expense and ease the burden on farmers and ranchers who want to help species recover,” said Zippy Duvall, president of the American Farm Bureau Federation.

In addition to Earthjustice, the groups that sued are the Center for Biological Diversity, Defenders of Wildlife, the Humane Society of the United States, the National Parks Conservation Association, Natural Resources Defense Council, the Sierra Club and WildEarth Guardians.

Published Aug. 21, 2019