Twenty-Three AGs Added Endangered Species Act Claim to Challenge of NEPA Regulations Overhaul

November 23, 2020

California Attorney General Xavier Becerra and Washington Attorney General Bob Ferguson led a coalition of 23 attorneys general in filing an amended complaint in their challenge of the Trump administration’s overhaul of National Environmental Policy Act (NEPA) regulations. The amended complaint added a claim stemming from the Council on Environmental Quality’s (CEQ) failure to engage in consultation with the U.S. Fish and Wildlife Service and National Marine Fisheries Service before finalizing the changes, as required under the Endangered Species Act (ESA). The amended complaint noted that CEQ concluded “without any basis or explanation” that its sweeping overhaul of NEPA implementing regulations would have “no effect” on threatened and endangered species and their protected habitat. CEQ apparently made this unsubstantiated and implausible assertion in an attempt to duck the low threshold for triggering the ESA’s consultation requirement, which applies to any federal action that “may affect a listed species or critical habitat.” The amended complaint noted that in a 2011 decision, the U.S. Court of Appeals for the Ninth Circuit held that “any possible effect, whether beneficial, benign, adverse, or of an undetermined character, triggers the formal consultation requirement.”

Document Type:
  • Complaints
  • Press Releases/Statements
States:
  • California
  • Colorado
  • Connecticut
  • Delaware
  • Guam
  • Illinois
  • Maine
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Nevada
  • New Jersey
  • New Mexico
  • New York
  • North Carolina
  • Oregon
  • Pennsylvania
  • Rhode Island
  • Vermont
  • Washington
  • Washington, D.C.
  • Wisconsin
Agencies:
  • Council on Environmental Quality
Issues:
  • Endangered Species Act
  • National Environmental Policy Act
  • Wildlife
Action Type:
Litigation