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September 4, 2020
Contact: stateimpactcenter@nyu.edu

State Attorneys General Urge Federal Agencies to Ensure Critical Habitat Protections for Endangered Species

Coalition warns U.S. Fish and Wildlife Service and National Marine Fisheries Service’s “unduly restrictive” proposal “conflicts with the fundamental, overarching purposes of the [Endangered Species Act] to conserve endangered and threatened species and their habitat."

Washington, D.C. — A coalition of 17 attorneys general led by California Attorney General Xavier Becerra submitted comments today sharply criticizing the U.S. Fish and Wildlife Service and National Marine Fisheries Service’s proposed definition of “habitat” under the Endangered Species Act (ESA). The Services’ proposal was prompted by the U.S. Supreme Court’s 2018 decision in Weyerhaeuser Co. v. United States Fish and Wildlife Service, in which the Court held that “[a]n area is eligible for designation as critical habitat” under Section 7 of the ESA, and thus entitled to the statute’s protections, “only if it is habitat for the species.” The comments warn that at its core, the proposal contradicts the principle of “institutionalized caution” underlying the Endangered Species Act, and threatens to “arbitrarily limit the Services’ ability to recover imperiled species by reducing —  in some cases potentially severely — the amount and type of critical habitat that can be protected under the Act.”

“The Trump Administration can’t explain its reasoning for tampering with definitions of protected habitat. Here’s the reason: They want to weaken protections for fish and wildlife so that industry can steamroll critical habitats,” said AG Becerra. “Our coalition is committed to protecting all species and habitat from unnecessary disruption from industry and climate change.”

“At a time when climate change is forcing endangered species to alter and extend their ranges to survive, the very federal agencies charged with ensuring their survival are proposing a narrow definition of habitat that would relegate many of them to the history books,” said David J. Hayes, Executive Director of the State Energy & Environmental Impact Center. “It's just the latest cynical attempt by the Trump administration to remove legally-required protections for critters that are on the brink of extinction.”
In their comments, the attorneys general emphasize that the proposal:
1. Conflicts with the ESA’s Language and Purpose — Numerous courts and the Services themselves have consistently interpreted the Endangered Species Act to mandate a broad definition of “critical habitat,” sufficient not only to prevent the extinction of listed species, but to facilitate their recovery. The Services “have repeatedly recognized that habitat restoration is a key component of endangered and threatened species recovery,” and both oversee habitat restoration programs that confirm their recognition that “habitat must be broadly construed to promote conservation and recovery of endangered and threatened species.” The Services’ proposal, however, narrowly defines habitat to include “areas with existing attributes that have the capacity to support individuals of the species,” which the attorneys general warn will preclude protection of “areas that could be made suitable through restoration efforts, but which do not currently contain such attributes.” The proposal “would likely exclude areas that are currently marginal or degraded” and that may be prime for restoration, “regardless of their importance of these areas for species’ survival and recovery.”
The Services’ proposed definition of “habitat” is in fact so narrow as to potentially exclude areas within the ESA’s existing statutory definition of “critical habitat,” an outcome the attorneys general emphasize is “impermissible and nonsensical.” In many if not most cases, the proposal would exclude areas that are not currently occupied by a species but that the species “may have previously depended upon, including its full historical habitat range.” The proposal would also impede recovery efforts and leave listed species vulnerable to ongoing and future threats by excluding areas that the species “may subsequently depend upon following planned or potential habitat restoration efforts, or due to reasonably foreseeable changes in the location, quality, or extent of habitat caused by climate change or other factors.” The Services’ proposal “would restrict their ability to designate unoccupied critical habitat for a species that may be forced to move to a new area or higher elevation due to climate change, or to return to a restored ecosystem that may provide essential refuge from such threats.”
2. Is Arbitrary and Unjustified — The proposal “arbitrarily stakes its entire justification” on the “exceedingly narrow” Weyerhaeuser decision, which “did not — and, indeed, in light of the ESA’s plain terms, could not — compel the Services to put forward the unduly restrictive definition of ‘habitat’ they now propose.”  The attorneys general also point out that in Weyerhaeuser, the U.S. Fish and Wildlife Service itself cited its “longstanding practice of approaching habitat on a species-by-species basis and including areas necessary for a species’ conservation and recovery.” The Services “have failed even to acknowledge this change in position, let alone provide any reasoned justification for doing so,” and have offered no other rationale for their proposal, rendering it arbitrary and capricious under the Administrative Procedure Act.

3. Has Not Undergone Required NEPA Review — The Services incorrectly “anticipate” that their proposal falls under an existing National Environmental Policy Act (NEPA) categorical exclusion and does not require full review, an assertion the attorneys general emphasize “is contrary to the requirements of NEPA and its implementing regulations.” The proposal “would significantly affect the frequency, extent, location and type of critical habitat for endangered and threatened species” and therefore “indisputably qualifies” as a major federal action requiring NEPA review.
The attorneys general of Connecticut, Illinois, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin, along with the City of New York, joined AG Becerra in submitting the comments.


About the State Energy & Environmental Impact Center
The State Energy & Environmental Impact Center (State Impact Center) is a non-partisan Center at the NYU School of Law that is dedicated to helping state attorneys general fight against regulatory rollbacks and advocate for clean energy, climate change, and environmental values and protections. For more information, visit our website