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October 8, 2020
Contact: Stephen Read

Seventeen AGs Blast Administration’s Latest Effort to ‘Severely Undercut’ Endangered Species Protections

Coalition warns ‘misguided, unlawful, and destructive’ proposal would result in ‘dramatic reduction in the amount of critical habitat’ designated for protection, jeopardizing species’ survival and recovery.

Washington, D.C. — A coalition of 17 attorneys general led by California Attorney General Xavier Becerra, Maryland Attorney General Brian Frosh and Massachusetts Attorney General Maura Healey submitted comments today in opposition to a proposal by the U.S. Fish and Wildlife Service that would skew the process for designating critical habitat for protection under the Endangered Species Act in favor of development and extractive industry interests.
“With every blow the Trump Administration deals to the Endangered Species Act, iconic species like the California condor and Chinook salmon are pushed closer to extinction,” said AG Becerra. “If we want to avoid hitting the point of no return, we need to be strengthening environmental protections, not weakening them. We urge the Fish and Wildlife Service to reconsider this blatantly unlawful proposal. The fate of our endangered species should not lie in the hands of industry interests.”
“Protection of critical habitat is an essential factor in achieving the recovery of our nation’s most imperiled species,” said AG Frosh. “The Trump Administration would allow exploitation of that habitat in violation of the Endangered Species Act. The proposed rule would elevate economic interests over the needs of endangered species and cripple our ability to achieve species recovery.”
In their comments, the attorneys general warn that the proposal undermines and conflicts with the Endangered Species Act, lacks reasoned justification required under the Administrative Procedure Act, and violates the National Environmental Policy Act (NEPA):
Endangered Species Act — The proposal “would impose a new mandatory obligation” on the Service to undertake an analysis of the benefits of excluding an area from a critical habitat designation whenever a proponent of exclusion — such as a developer or a mining or logging company — provides “credible information” in support of their position. This change directly conflicts with the Endangered Species Act, which the attorneys general emphasize makes clear that “an exclusion analysis and finding is always discretionary.” This has been confirmed repeatedly by the courts, which “have uniformly held that an exclusion analysis is discretionary.”
The proposal would also give private interests inappropriate and excessive influence over exclusion analysis itself by requiring the Service to “defer to outside ‘experts’ and ‘sources’ with ‘firsthand information’ regarding ‘nonbiological impacts’” and in some cases to “defer to such outside experts and sources as to biological impacts that are expressly within [the Service’s] expertise.” This conflicts with the Endangered Species Act’s requirement that the Service “base critical habitat determinations on its own independent professional judgment using the best available science,” and threatens to “reduc[e] — potentially drastically — the amount of critical habitat ultimately designated and protected” under the statute, undermining its fundamental purpose of ensuring listed species’ survival and recovery.
Administrative Procedure Act — The Service’s proposal represents “a dramatic change in approach” from its existing policy, and “is neither justified nor explained” as required under the Administrative Procedure Act. Furthermore, the proposal would give “unquestioned weight to information presented by unspecified and undefined outside ‘experts’ and ‘sources,’” which is “inconsistent with a Federal agency’s fundamental obligation under basic principles of administrative law to exercise its own independent judgment based on the law and the record before it.”
National Environmental Policy Act — The Service wrongly asserts that its proposal falls under an existing NEPA categorical exclusion, despite the “significant, adverse environmental impacts” that would flow from it. The proposal “indisputably qualifies” as a major federal action requiring full NEPA review, particularly when considered in conjunction with the Service’s proposed restrictive definition of “habitat” under the Endangered Species Act, which a coalition of attorneys general warned would “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 attorneys general of Connecticut, Illinois, 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, AG Frosh and AG Healey 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