Press Release

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.

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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.