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States Claim ESA Critical Habitat Revisions Hamper Energy Projects, Economic Development

Eighteen states are challenging revamped critical habitat rules within the Endangered Species Act (ESA) that were finalized earlier this year by the Obama administration, claiming federal authorities are attempting to usurp control over state land and water resources by imposing unnecessary revisions.

Led by Alabama, the states are challenging two revisions that expanded the methods federal managers may use to determine critical habitat, and which mandate consultation before approving or funding any projects. The rules are implemented by the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS).

The lawsuit in particular takes aim at the agencies' flexibility in determining how important "unoccupied" habitat is in a critical designation. FWS and the NMFS previously could consider "unoccupied" habitat, which is not considered a "current" home to a species, if it was determined after review that the "occupied" habitat could not recover without it.

However, the revisions allows the agencies to consider "occupied" and "unoccupied" habitat at the same time. The agencies had argued that the "occupied only" provision could result in less effective conservation. The states see it differently, claiming that the rules unlawfully expand federal control over state lands and waters.

"This is nothing more than yet another end run around Congress by a president who is desperate to establish his environmental legacy by any means necessary before his time in office ends in less than 60 days," said Texas Attorney General Ken Paxton, whose state joined the lawsuit. "The Obama administration is hiding behind bogus rules to perpetrate land grabs, kill energy projects and block economic development."

States also challenging the revisions are Arkansas, Alaska, Arizona, Colorado, Kansas, Louisiana, Michigan, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Carolina, West Virginia, Wisconsin and Wyoming. The lawsuit was filed Tuesday in U.S. District Court for the Southern District of Alabama (1:16-cv-00593).

In question are "Listing Endangered and Threatened Species and Designating Critical Habitat; Implementing Changes to the Regulations for Designating Critical Habitat," found in 50 Code of Federal Regulations (CFR) 424, and "Interagency Cooperation -- ESA of 1973, as Amended; Definition of Destruction or Adverse Modification of Critical Habitat," found at 50 CFR 402.02.

In response to the lawsuit, FWS officials said the designations are required under the broad authority of the ESA. FWS has "endeavored to make commonsense changes that would clarify criteria and procedures and provide for a more predictable and transparent critical habitat designation process...These revisions largely reflect how we have designated critical habitat during the last 15 years. Allegations of greatly expanded authority and political intent are unfortunate and without merit. One need only look at our recent designations to see that."

The Center for Biological Diversity (CBD) also weighed in, pledging to intervene in the lawsuit to ensure President-elect Trump "doesn't sell out species on the brink of extinction." The state lawsuit's "attack on much needed protections for endangered species habitat is unfounded and out of step with strong majorities of the American public that want to see America's wildlife saved from extinction," CBD's Brett Hartl, endangered species policy director, said. "There is simply no way to save endangered species without protecting the places they live."

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