Attorney General Becerra Opposes Trump Administration Proposal to Exclude Critical Habitat from Endangered Species Act Protections

SACRAMENTO – California Attorney General Xavier Becerra, co-leading a multistate coalition with Maryland Attorney General Brian Frosh and Massachusetts Attorney General Maura Healey, today filed a comment letter opposing the U.S. Fish and Wildlife Service’s (FWS) proposal to establish a new, unlawful process for excluding areas from critical habitat designations under the federal Endangered Species Act. If finalized, the proposal is likely to drastically reduce the areas protected as critical habitat, further endangering the conservation of our nation’s most imperiled species. In the comment letter, the coalition of 17 attorneys general argue that FWS’s proposal is contrary to the plain language of the Endangered Species Act and arbitrarily limits its ability to protect endangered or threatened species as required by the Act.

“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 Attorney General 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.”

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 Section 4(b)(2) of the Endangered Species Act, FWS is required to designate critical habitat for listed 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. FWS “may” exclude areas of critical habitat if the agency determines that the benefits of exclusion outweigh the benefits of designation. 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.

On September 8, 2020, FWS published a proposed rule that would establish a new process for excluding areas of critical habitat. If finalized, FWS would 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 would have to 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. This would be likely to drastically reduce the amount of critical habitat designated and protected under the Endangered Species Act. 

In the comment letter, the coalition argues that FWS’s proposal is unlawful and should be abandoned because:

• The proposal is contrary to the plain language and overarching conservation purposes of the Endangered Species Act;
• The proposal is arbitrary and capricious under the Administrative Procedure Act because FWS fails to provide any reasoned explanation for the proposal; and 
• FWS incorrectly suggests that the proposal is subject to a categorical exclusion under the National Environmental Policy Act, or that it may complete review at a later date, despite its major substantive changes that are likely to cause significant environmental effects on imperiled species and their habitat. 

Attorney General Becerra has been a staunch defender of the Endangered Species Act. On September 4, 2020, Attorney General Becerra led a coalition of 17 attorneys general in submitting comments challenging the Trump Administration’s attempt to narrowly and unlawfully define the term ‘habitat’ under the Endangered Species Act. In May, Attorney General Becerra secured a critical victory in a multistate lawsuit challenging FWS and the National Marine Fisheries Service’s weakening of the Endangered Species Act. Litigation in that case is ongoing.

Attorney General Becerra is joined by the attorneys general of Maryland, Massachusetts, Connecticut, Illinois, Michigan, 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 comment letter.

A copy of the comment letter can be found here.