SACRAMENTO – California Attorney General Xavier Becerra and Massachusetts Attorney General Maura Healey today led a multistate coalition in filing a lawsuit challenging two final rules by the Trump Administration that are expected to drastically reduce the amount of habitat protected under the federal Endangered Species Act. The first rule adds a new, restrictive definition of “habitat” to regulations for making critical habitat designations, while the second establishes a new, unlawful process for excluding areas from critical habitat designations. In California, there are over 300 species listed as endangered or threatened under the Endangered Species Act — more than any other mainland state — as well as millions of acres of designated critical habitat. In the lawsuit, the coalition argues that the rules, hastily finalized by the Trump Administration in its waning days, violate the Endangered Species Act, the National Environmental Policy Act, and the Administrative Procedure Act.
“In its final days, the Trump Administration has struck not one but two damaging blows to the federal Endangered Species Act and the protections it offers to our precious fish and wildlife,” said Attorney General Becerra. “From the southern sea otter to the California condor, our state is home to a diverse array of iconic species at increasing risk of extinction because of the Trump Administration’s reckless actions. There’s too much at stake to pull punches. We're going to court today because if we don't act now, there might not be a tomorrow for these endangered species.”
Enacted under the Nixon Administration in 1973, the Endangered Species Act is intended “to halt and reverse the trend toward species extinction, whatever the cost.” Under the Endangered Species Act, the U.S. Fish and Wildlife Service (FWS) is responsible for listing species as “endangered” or “threatened” and designating “critical habitat” for each such species based on “the best scientific data available” and after considering economic, national security, and other relevant impacts. Areas designated as critical habitat are provided with significant protections to ensure that species have the ability to recover to sustainable population levels so that they no longer need to be listed.
While the Endangered Species Act does not define “habitat,” FWS’s long-held position has been that habitat is best determined on a species-by-species basis in order to account for the divergent types of life histories, behavior patterns, and survival strategies of the listed species. Under the first final rule, however, FWS would use a new, narrow definition of “habitat” for purposes of critical habitat designations, limiting the FWS’s ability to recover imperiled species by reducing the amount and type of critical habitat that can be protected.
As a result of the second final rule, FWS will also be required to consider excluding areas from a critical habitat designation when a “proponent of excluding a particular area” presents “credible information” supporting exclusion. In conducting such an analysis, FWS must defer to outside “experts” and “sources” regarding "nonbiological impacts" that are outside the scope of FWS’s expertise. If FWS determines that the benefits of excluding a particular area outweigh the benefits of specifying that area as a critical habitat, FWS must exclude that area, unless it will result in the extinction of a species.
In the lawsuit, the coalition argues that the U.S. District Court for the Northern District of California should vacate and set aside the Trump Administration’s final rules undermining habitat protections for endangered and threatened species because they:
Attorneys General Becerra and Healey are joined by the attorneys general of Connecticut, Illinois, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin, as well as the City of New York, in filing the lawsuit.
A copy of the lawsuit can be found here.