COMMENTS OF THE ATTORNEYS GENERAL OF MASSACHUSETTS,
CALIFORNIA, MARYLAND, NEW YORK, OREGON, PENNSYLVANIA, RHODE
ISLAND, VERMONT, WASHINGTON, AND THE DISTRICT OF COLUMBIA
September 24, 2018

By Electronic Submission to www.regulations.gov
Hon. Ryan K. Zinke, Secretary
U.S. Department of the Interior
1849 C Street N.W.
Washington, D.C. 20240
Hon. Wilbur Ross, Secretary
U.S. Department of Commerce
1401 Constitution Avenue N.W.
Washington, D.C. 20230

Re: Comments on Proposed Rules entitled:
Docket ID No. FWS-HQ-ES-2018-0006: Revision of the Regulations for
Listing Species and Designating Critical Habitat, 83 Fed. Reg. 35,193 (July 25, 2018)
Docket ID No. FWS-HQ-ES-2018-0009: Revision of Regulations for
Interagency Cooperation, 83 Fed. Reg. 35,178 (July 25, 2018)
Docket ID No FWS-HQ-ES-2018-0007: Revision of the Regulations for
Prohibitions to Threatened Wildlife and Plants, 83 Fed. Reg. 35,174 (July 25, 2018)
Dear Secretaries Zinke and Ross:
The undersigned ten State Attorneys General of the Commonwealths of Massachusetts
and Pennsylvania, and the States of California, Maryland, New York, Oregon, Rhode Island,
Vermont, Washington, and the District of Columbia (together, the “States”) respectfully submit
the following comments on the Fish and Wildlife Service (“FWS”) and the National Marine
Fisheries Service’s (“NMFS”) (together, the “Services”) proposed rules entitled Revision of the
Regulations for Listing Species and Designating Critical Habitat, 83 Fed. Reg. 35,193 (July 25,
2018) (hereinafter the “Listing Rule”), and Revision of Regulations for Interagency Cooperation,
83 Fed. Reg. 35,178 (July 25, 2018) (hereinafter the “Interagency Consultation Rule”), and
FWS’s proposed rule entitled Revision of the Regulations for Prohibitions to Threatened Wildlife
and Plants, 83 Fed. Reg. 35,174 (July 25, 2018) (hereinafter the “4(d) Rule”) (together, the
“Proposed Rules”). The Proposed Rules are untethered to, and in clear violation of, the speciesprotective requirements and overriding conservation purpose of the Endangered Species Act
(“ESA” or “Act”) enacted by Congress in 1973. In plain disregard of established law, they
1

 would wreak havoc on one of our nation’s most successful conservation laws and harm the
States’ vital interests in species protection.
Among other troubling defects, the Proposed Rules would unlawfully allow the Services
to weave economic cost considerations into, and discount scientific information throughout, their
decision making; ignore grave threats to species’ survival like climate change; reduce the
number and extent of critical habitat designations for listed species; restrict the circumstances
under which federal agencies must engage in interagency consultations and dramatically narrow
the scope of such consultations; and leave threatened species unprotected from harm while the
FWS works through its ever-present backlog of rulemaking obligations. Rather than promote the
regulatory efficiency the agencies purportedly seek, the Proposed Rules, if finalized, would
achieve precisely the opposite, burying the Services in paperwork, increasing the backlog of
outstanding listing and designation decisions, and inviting litigation. The Proposed Rules also
violate the plain language of the Act, its legislative history, and its overarching precautionary
approach and, further, are arbitrary and capricious, lacking any reasoned basis. What is more,
the Services altogether have failed to study the devastating environmental effects of the Proposed
Rules, in violation of the National Environmental Policy Act (“NEPA”).
We urge the Services to withdraw these misguided proposals and instead fulfill their
longstanding statutory obligation to conserve the precious biological resources of our States and
nation, the value of which “is, quite literally, incalculable.” Tennessee Valley Auth. v. Hill, 437
U.S. 153, 178-79 (1978).
INTRODUCTION AND EXECUTIVE SUMMARY
Congress enacted the ESA nearly forty-five years ago in a bipartisan effort “to halt and
reverse the trend toward species extinction, whatever the cost.” Id. at 184; see 16 U.S.C.
§ 1531(a). As President Nixon explained in signing the Act, “[n]othing is more priceless and
more worthy of preservation than the rich array of animal life with which our country has been
blessed.”1 The ESA accordingly enshrines a national policy of “institutionalized caution” in
recognition of the “overriding need to devote whatever effort and resources [are] necessary to
avoid further diminution of national and worldwide wildlife resources.” Hill, 437 U.S. at 177,
194 (internal quotation omitted).2 That pervasive goal “is reflected not only in the stated policies
of the Act, but in literally every section of the statute.” Id. at 184.
The Act achieves its salutary purpose through multiple vital programs, each of which is
undermined by the Proposed Rules. Section 4—the “cornerstone of effective implementation of
the [ESA],” S. REP. No. 97-418, at 10 (1982)—provides for the listing of both endangered and
threatened species based solely on the best scientific and commercial data about threats to the
species, 16 U.S.C. § 1533(a)(1)-(2), (b)(1). Section 9 in turn prohibits “take” (e.g., killing,
injuring, or harming) of listed endangered fish and wildlife species, and section 4(d) authorizes
extension of that prohibition to listed threatened species to ensure their conservation in line with
President’s Statement on Signing the Endangered Species Act of 1973, 374 PUB. PAPERS, 1027, 10271028 (Dec. 28, 1973).
2
See also Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 698-99 (1995)
(describing broad purposes of Act).
1

2

 the Act’s overarching precautionary approach. Id. §§ 1533(d), 1538(a)(1)(G), (a)(2)(E). Section
4 of the Act also ensures the survival and recovery of listed species by requiring the Services,
concurrently with species listing, to designate habitat essential to their conservation, termed
critical habitat. Id. §§ 1532(5)(A), 1533(a)(3). Finally, section 7 reflects “an explicit
congressional decision to require agencies to afford first priority to the declared national policy
of saving endangered species,” elevating concern for species protection “over the ‘primary
missions’ of federal agencies.’” Hill, 437 U.S. at 185. Accordingly, section 7 mandates that all
federal agencies, in consultation with the Services, must “insure” that any actions they authorize,
fund, or carry out are not likely to jeopardize the continued existence of any listed species or
adversely affect critical habitat. 16 U.S.C. § 1536(a)(2).3
The three Proposed Rules—admittedly developed to further a deregulatory agenda4—
would fundamentally undercut these programs while purporting merely to increase clarity and
encourage efficiency and transparency.
First, the Listing Rule violates the ESA’s express requirements for listing of endangered
and threatened species and designating critical habitat without any cogent rationale for
upending its longstanding listing and critical habitat designation processes. See infra
Section II.A., pp.10-23. The proposal unlawfully and arbitrarily:
•
•
•
•
•

injects economic considerations and quantitative thresholds into the Act’s
science-driven, species-focused analyses;
limits the circumstances under which species can be listed as threatened;
eliminates consideration of species’ recovery in the delisting process;
expands the Act’s expressly and purposefully narrow exemptions for designation
of critical habitat; and
limits the circumstances under which unoccupied critical habitat would be
designated, particularly where climate change poses a threat to species habitat.

3

See also 16 U.S.C. §§ 1531(b)-(c), 1532(3) (directing all federal agencies to conserve endangered and
threatened species and to utilize their authorities in furtherance of Act’s species-protective purposes).
4
Listing Rule, 83 Fed. Reg. at 35,194 (citing Executive Order 13,777, “Enforcing the Regulatory Reform
Agenda,” as impetus for rulemaking); Interagency Consultation Rule, 83 Fed. Reg. at 35,179 (same); 4(d)
Rule, 83 Fed. Reg. at 35,175-76 (same).

3

 Second, the Interagency Consultation Rule would upend the ESA’s section 7 federal
agency consultation process in violation of the plain language and purpose of the Act and
without any reasoned basis. See infra Section II.B., pp.23-34. Among other unlawful
changes, the Services’ proposals would:
•
•
•
•
•
•

limit the circumstances under which a federal agency action would be deemed to
destroy or adversely modify designated critical habitat;
limit the scope and extent of the analysis of the effects of a federal agency action;
include several significant new exemptions from the consultation requirement;
limit the instances where changed circumstances would require re-initiation of
consultation on a federal agency action;
Limit federal action agencies’ duty to insure mitigation of the adverse effects of
their proposals and give federal action agencies the ability to make biological
determinations that the Services are required to make; and
allow for broad-based “programmatic” and “expedited” consultations that give
short shrift to site-specific and in-depth analysis of a proposed federal agency
action.

Third, the 4(d) Rule proposes to remove, going forward, the “blanket” extension to
threatened species of all protections afforded to endangered plants and animals under the
ESA, a radical departure from the longstanding, conservation-based agency policy and
practice of providing default section 9 protections to all newly listed threatened plant and
animal species. See infra Section II.C., pp.34-37.
•

•

FWS’s new proposal is contrary to the ESA’s conservation purpose and
precautionary approach because it inevitably would leave threatened species
without protections necessary to promote recovery, either temporarily or
permanently, and increase the risk that they will become endangered.
The agency provides no sound reason for this abrupt policy change, which would
strain already overburdened agency resources and generate litigation.

Finally, the Services have violated NEPA by altogether failing to assess the
environmental impacts of the Proposed Rules or to circulate such analyses for public
review and comment. See infra Section III., pp.37-40. Each of the Proposed Rules is
without question a major federal action, each will significantly affect the human
environment by eviscerating the ESA’s important species protections, and none qualifies
for the limited, largely procedural categorical exclusions from NEPA compliance
available to the Services. The Services must now properly analyze the Proposed Rules’
dire environmental consequences, and prepare an Environmental Impact Statement to
enable meaningful public comment and ensure fully informed decision making in
compliance with NEPA.

4

 I.

The States Are Uniquely Positioned To Demand that the Services Faithfully
Implement the Endangered Species Act.

The States are uniquely qualified to evaluate, and demand withdrawal of, the Services’
proposals to weaken the ESA: States have significant interests in the conservation of their natural
heritage; States and their residents suffer when species conservation measures are curtailed and
their biological diversity is threatened and in turn have benefitted from successful
implementation of the Act; and States seeking to protect their natural resources would need to
devote significant resources and institutional capacity to make up for the Services’ failures to
properly implement the Act, if the Proposed Rules are finalized.
First, States have a concrete interest in preventing harm to their natural resources, both in
general and under the ESA in particular. States are harmed in their parens patriae capacity when
their residents suffer due to environmental degradation. See Alfred L. Snapp & Son, Inc. v.
Puerto Rico, 458 U.S. 592, 607 (1982); Maryland v. Louisiana, 451 U.S. 725, 737-38 (1981).
And, as the Supreme Court has recognized, States are entitled to special solicitude in seeking to
remedy environmental harms. See Massachusetts v. Environmental Prot. Agency, 549 U.S. 497,
519-22 (2007). These interests are particularly robust in the context of the ESA, which
conserves the invaluable natural heritage within States’ borders. Indeed, in many States, wildlife
resources are held in trust by the States for the benefit of the people of the State.5 Accordingly,
the Act specifically directs the Services to “cooperate to the maximum extent practicable with
the States” in implementing the Act and also gives States a special seat at the table in ensuring
faithful and fully informed implementation of the Act’s species-conservation mandates. 16
U.S.C. § 1535(a).6 The States thus have an important voice in preventing and remedying harm to
endangered and threatened species and their habitat.

5

See Michael C. Blumm & Aurora Paulsen, The Public Trust in Wildlife, 2013 UTAH L. REV. 1437,
1488-93 App. A (2013) (summarizing state wildlife trust law); Geer v. Connecticut, 161 U.S. 519, 527-29
(1896), overruled on other grounds by Hughes v. Oklahoma, 441 U.S. 322, 326 (1979); see also, e.g.,
CAL. FISH & GAME CODE §§ 711.7(a), 1802 (State of California holds its fish and wildlife resources in
trust for people of State); WASH. REV. CODE 77.75.070 (“Wildlife resources are managed in trust by the
respective states for the benefit of all residents and visitors.”); VT. STAT. ANN. tit. 10, § 4081(a)(1)
(“[T]he fish and wildlife of Vermont are held in trust by the State for the benefit of the citizens of
Vermont and shall not be reduced to private ownership. The State of Vermont, in its sovereign capacity as
a trustee for the citizens of the State, shall have ownership, jurisdiction, and control of all the fish and
wildlife of Vermont.”).
6
See also, e.g., 16 U.S.C. § 1531(a)(5) (encouraging State species conservation); id. § 1533(b)(1)(A),
(b)(1)(B)(ii) (accounting for State efforts); id. §§ 1533(b)(5), 1536(a)(2) (State consultation requirements
for critical habitat designation); id. § 1533(b)(7) (notice of emergency regulations to States where species
believed to occur); id. § 1533(g) (monitoring of recovered species in cooperation with State); id. § 1533(i)
(heightened justification required where regulations inconsistent with State agency’s comments or
petition); id. § 1536(e) (each affected State must be represented on Endangered Species Committee
established during consultation exemption procedure); id. § 1535 (requiring Services to cooperate with
States); id. § 1536(g) (State governors included in exemption application process); id. § 1537a(e)(2)
(States to participate in implementation of the Western Convention); id. § 1540(e)(1) (Services may use
State agency resources to enforce ESA).

5

 Second, and relatedly, any efforts to weaken implementation of the ESA would put at risk
the States’ irreplaceable natural heritage and harm the States and their residents in numerous
ways. The ESA recognizes that endangered and threatened “species of fish, wildlife, and plants
are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation
and its people.” Id. § 1531(a)(3). Reducing our wealth of wild species would damage each of
these values and “diminish[] a natural resource that could otherwise be used for present and
future commercial purposes.” National Ass’n of Home Builders v. Babbitt, 130 F.3d 1041, 105353 (D.C. Cir. 1997); see also San Luis & Delta–Mendota Water Auth. v. Salazar, 638 F.3d 1163,
1177 (9th Cir. 2011). And although the harms that would result from the loss of biological
diversity are enormous, the nation cannot fully apprehend their scope because of the “unknown
uses that endangered species might have and . . . the unforeseeable place such creatures may
have in the chain of life on this planet.” Hill, 437 U.S. at 178-79 (emphases in original).7
Over the last four decades, the States have seen significant benefits8 and steps toward
recovery of at-risk species from the Services’ implementation of the ESA, including the recovery
and delisting of our national bird, the bald eagle (Haliaeetus leucocephalus). Among other
examples, populations of the Atlantic Coast piping plover (Charadrius melodus), which is listed
as a threatened species along most of the East Coast, have more than doubled in the last twenty
years thanks to FWS’s conservation planning, federal enforcement, and cooperative efforts
between federal, state, and local partners pursuant to the ESA.9 Recovery efforts have been
particularly successful in Massachusetts, where the East Coast’s largest piping plover breeding
population has rebounded from fewer than 150 pairs in 1990, to about 642 pairs in 2016,10
increasing 500 percent since the species was listed in 1986.11 Despite these gains, however,
piping plovers’ continued recovery is threatened by habitat loss from sea level rise caused by
climate change.12
See also National Ass’n of Home Builders, 130 F.3d at 1052-53.
Species recovery also benefits biodiversity in entire ecosystems. See generally William J. Ripple &
Robert L. Beschta, Trophic cascades in Yellowstone: The first 15 years after wolf reintroduction, 145
Biological Conservation, 205, 206 (2012) (reintroduction of gray wolves to Yellowstone National Park
restored a trophic cascade, resulting in rebounded plant growth, greater forage opportunities for several
species, and increased beaver and bison populations), available at
https://doi.org/10.1016/j.biocon.2011.11.005; Madhu Rao & Trond Larsen, Ecological Consequences of
Extinction, 3 LESSONS IN CONSERVATION 25, 27-28 (2010) (studies demonstrate that species extinctions
are likely to have far-reaching consequences, including cascading extinctions of other species and
disruptions of ecosystem function), available at
https://www.amnh.org/content/download/141367/2285419/file/LinC3_EcolCon.pdf.
9
See Piping Plover (Charadrius melodus), FWS, https://www.fws.gov/northeast/pipingplover/index.html
(last updated Apr. 5, 2018); see also United States v. Town of Plymouth, 6 F. Supp. 2d 81, 92-94 (D. Mass
1998) (federal enforcement example).
10
MASS. DIV. OF FISHERIES & WILDLIFE, SUMMARY OF THE 2016 MASSACHUSETTS PIPING PLOVER
CENSUS (updated 2018), available at http://www.mass.gov/eea/docs/dfg/nhesp/species-andconservation/plover-census-report-mass-2016.pdf.
11
See Piping Plover, supra note 9.
12
See MASS. DIV. OF FISHERIES & WILDLIFE & ICF INT’L, HABITAT CONSERVATION PLAN FOR PIPING
PLOVER 2-10 to 2-25, 5-21 to 5-22 (2016), available at
https://www.fws.gov/newengland/pdfs/MADFW_HCP/MADFW%20Final%20Piping%20Plover%20HC
P_June%202016.pdf.
7
8

6

 The California condor (Gymnogyps californianus), the largest land bird in North
America, has been listed as “endangered” since the Act’s inception and was on the brink of
extinction in 1982 with just twenty-three known individuals. By 1987, all remaining wild
condors had been placed into a captive breeding program. Recovery efforts led by FWS,
California state agencies, and other partners have increased the population to 463 birds as of
2017 and successfully reintroduced captive-bred condors to the wild. These efforts are now in
their final phase, with a focus on creating self-sustaining populations and managing continued
threats to the species, such as lead ammunition, trash, and habitat loss. 13
The smallest rabbit in North America, the pygmy rabbit (Brachylagus idahoensis), was
listed as an endangered species under Washington State law in 1993 and by 2001 was considered
nearly extinct, with an estimated population of fewer than 50 individuals. In 2003, FWS also
listed a distinct population segment of the species known as the Columbia Basin pygmy rabbit as
an endangered species under the Federal ESA. Since that time, the species has begun to recover
in Washington as a result of a cooperative effort by FWS, the Washington Department of Fish
and Wildlife, researchers, and other state agencies. Thousands of rabbits have been reintroduced
on state and private land, with promising evidence of a growing population. Recovery would not
be possible without the mutually supporting protections of state and federal law.14
The shortnose sturgeon (Acipenser brevirostrum) is an anadromous fish found in rivers,
estuaries, and coastal waters along the Atlantic Coast of North America.15 Overfishing, river
damming, and water pollution greatly reduced its numbers, and the shortnose sturgeon was listed
as endangered in 1967. However, fishing prohibitions and habitat protection efforts led by
NMFS and New York have allowed the shortnose sturgeon population to increase in New York’s
Hudson River from about 12,669 in 1979 to more than 60,000 today. 16
The Delmarva fox squirrel, found primarily in Maryland and included on the original list
of federally endangered species, has successfully recovered and was delisted by FWS in
December 2015. At the time it was listed, the Delmarva fox squirrel had been limited to just 10
percent of its historic range due to forest clearing and overhunting and was found almost
exclusively in three Maryland counties. Through concerted conservation efforts triggered by the
ESA, the species’ range now encompasses ten counties in three States—Maryland, Delaware,
and Virginia—and, with an estimated population of 17,000-20,000, the species is no longer at

13

See California Condor Recovery Program, FWS, https://www.fws.gov/cno/es/CalCondor/Condor.cfm
(last updated May 23, 2018).
14
See Pygmy Rabbits in Washington, WASH. DEP’T FISH & WILDLIFE (June 2015), available at
https://wdfw.wa.gov/conservation/pygmy_rabbit/; Pygmy Rabbit (Columbia Basin DPS), FWS,
https://www.fws.gov/wafwo/articles.cfm?id=149489590 (last visited Sept. 20, 2018).
15
NOAA FISHERIES, ATLANTIC AND SHORTNOSE STURGEON, available at
https://www.greateratlantic.fisheries.noaa.gov/protected/atlsturgeon/docs/sturgeonfactsheetfinal.pdf.
16
The Endangered Species Act: A Wild Success, CTR. FOR BIOLOGICAL DIVERSITY,
https://www.biologicaldiversity.org/campaigns/esa_wild_success/ (last visited Sept. 20, 2018).

7

 risk of extinction.17 These are but a few of the many examples of successful, robust, and
cooperative implementation of the ESA by the Services and State partners, success stories that
likely would not be possible under the Proposed Rules.
Third, the States have institutional and proprietary interests in the Services’ full
compliance with the Act’s plain language and overriding conservation purpose, because States
would have to attempt to fill the regulatory and enforcement void left by the Services’ failure to
adequately protect the nation’s irreplaceable biological resources. Many States have laws and
regulations that protect species within their borders to the same extent or greater than the federal
ESA.18 In such circumstances, the Services and the States take account of each other’s efforts to
conserve rare species and often work cooperatively to share the responsibility and workload
required for their protection.19
If the Services finalize the Proposed Rules and thus weaken federal species protections,
the responsibility for, and burden of, protecting imperiled species and habitats within State
borders would fall primarily on the States. This would detract from State efforts and resources to
carry out their more protective programs and impose significantly increased costs and burdens on
the States. For example, under the proposed 4(d) Rule, species newly listed as threatened under
both State and federal law would be subject to a “take” prohibition only under State law. See,
e.g., MASS. GEN. LAWS. ch. 131A, § 2; CAL. FISH & GAME CODE §§ 2080, 2085. In such
circumstances, the States would have to shoulder the costs of conservation while FWS clears its
17

See FWS, DELMARVA PENINSULA FOX SQUIRREL (SCIURUS NIGER CINEREUS): QUESTIONS AND
ANSWERS ABOUT REMOVAL FROM THE LIST OF THREATENED AND ENDANGERED SPECIES (Nov. 13,
2015), available at https://www.fws.gov/chesapeakebay/EndSppWeb/DFS/FAQs_DFSdelist_2015.pdf.
18
See 16 U.S.C. § 1535; see, e.g., MASS. GEN. LAWS. ch. 131A, §§ 1-7; 321 CODE MASS. REGS. §§ 10.00
et seq. (creating three classifications of protected species, “Endangered,” “Threatened,” and ”Special
Concern,” and currently listing 427 species, including 401 species not listed under the federal ESA);
California Endangered Species Act, CAL. FISH & GAME CODE §§ 2050 et seq.; California Natural
Communities Conservation Planning Act, CAL. FISH & GAME CODE §§ 2800 et seq.; REV. CODE WASH.
77.12.020 (authorizing the classification of wildlife as “protected” or “endangered”); WASH. ADMIN.
CODE § 220-610-110 (creating the protected subcategories of “sensitive” and “threatened,” and
establishing procedures for listing); VT. STAT. ANN. tit. 10, §§ 5401 et seq. (protecting endangered and
threatened species and critical habitat, and currently listing 52 animal species, 44 of which are not listed
under the federal ESA, and 163 plant species, 160 of which are not listed under the federal ESA);
Maryland Endangered Species of Fish Conservation Act, MD. CODE ANN., NAT. RES. §§ 4-2A-01 et seq.
(providing authority for listing and protection of fish species “[i]n addition to the species deemed to be
endangered or threatened pursuant to the Endangered Species Act”); Maryland Nongame and
Endangered Species Act, MD. CODE ANN., NAT. RES. §§ 10-2A-01 et seq. (providing authority for listing
and protection of species of wildlife and plant “[i]n addition to the species deemed to be endangered or
threatened pursuant to the Endangered Species Act”).
19
See 16 U.S.C. § 1533(b)(1)(A), (b)(1)(B)(ii). Under Washington State rules, for example, federal
listing initiates state listing and development of a recovery plan. Consequently, federal and state
protections operate synergistically, and the reduction of federal protections for threatened species will
render state recovery plans less effective. See WASH. ADMIN. CODE § 220-610-110 (3.2); see also VT.
STAT. ANN. tit. 10, §§ 5402(e)(2), 5402a(c)(2) (requiring that for listing or delisting species or
designating critical habitat Agency of Natural Resources “notify and consult with appropriate officials in
Canada, appropriate state and federal agencies, [and] other states having a common interest in the
species,” among others).

8

 backlog and irons out the details of a species-specific rule (if it ever even does so), or else risk
irreversible damage to the threatened species in the meantime. See Air Alliance Hous. v. U.S.
Envtl. Prot. Agency, No. 17-1155, slip op. at 18-19 (D.C. Cir. Aug. 17, 2018) (“Monetary
expenditures to mitigate and recover from harms that could have been prevented absent the
[federal rule] are precisely the kind of ‘pocketbook’ injury that is incurred by the state itself.”
(citing Alfred L. Snapp & Son, Inc., 458 U.S. at 602)). 20 And, importantly, despite these
resource-intensive efforts, the States would not be able to wholly fill the regulatory gap created
by abrogation of the blanket 4(d) Rule and other proposed changes because some states with
significant biodiversity do not adequately protect endangered or threatened species under state
law.21 In such cases, federal regulation is the only defense for resident at-risk species.
For all these reasons, the States have a special perspective on implementation of the ESA
that demands the Services’ attention here.
II.

The Proposed Rules Violate the Text and Purpose of the Endangered Species Act
and Lack Any Reasoned Basis.

The Proposed Rules violate several bedrock principles of administrative law. While
agencies often have discretion to carry out statutory mandates, they may not regulate in a manner
that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or
“in excess of statutory . . . authority.” 5 U.S.C. § 706(2)(A), (C). First, agencies altogether lack
authority to adopt regulations that are “manifestly contrary to the statute.” Chevron U.S.A., Inc.
v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984); Babbitt v. Sweet Home Chapter of
Cmtys. for a Great Or., 515 U.S. 687, 703 (1995). Second, in promulgating a regulation “the
agency must examine the relevant data and articulate a satisfactory explanation for its action
including a rational connection between the facts found and the choice made.” Motor Vehicle
Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(quotation and citation omitted). Agency regulation is arbitrary and capricious if the agency
“relie[s] on factors which Congress has not intended it to consider” or “entirely fail[s] to
consider an important aspect of the problem.” Id. Finally, in promulgating regulations agencies
must afford the public notice of the specific—not vaguely stated—regulatory changes and their
reasoned basis to provide the public a meaningful opportunity for comment. Home Box Office,
Inc. v. Federal Commc’ns Comm’n, 567 F.2d 9, 35-36 (D.C. Cir. 1977).22
These core principles apply equally to an agency’s decision to change existing policy.
Federal Commc’ns Comm’n v. Fox Television Stations, 556 U.S. 502, 513-15 (2009). While an
20

Federal enforcement has been instrumental in the ongoing recovery of the threatened piping plover in
Massachusetts. See, e.g., Town of Plymouth, 6 F. Supp. 2d at 92-94. With delayed protection for newly
listed threatened species, similar success stores would be possible only with ramped up state enforcement.
21
For example, West Virginia is home to dozens of federally listed endangered and threatened species,
but has no state legislation aimed at protecting threatened or endangered species. See W.VA. DIV. OF
NAT. RESOURCES, FEDERALLY THREATENED AND ENDANGERED SPECIES IN WEST VIRGINIA (Mar. 28,
2018), available at http://www.wvdnr.gov/Wildlife/PDFFiles/TElist.pdf; Rare, Threatened, and
Endangered Species, W.VA. DIV. OF NAT. RESOURCES, http://www.wvdnr.gov/wildlife/endangered.shtm
(last visited Sept. 20, 2018).
22
See also Gerber v. Norton, 294 F.3d 173, 179 (D.C. Cir. 2002).

9

 agency need not show that a new rule is “better” than the rule it replaced, it still must
demonstrate that “it is permissible under the statute, that there are good reasons for it, and that
the agency believes it to be better, which the conscious change of course adequately indicates.”
Id. at 515 (emphases omitted). Further, an agency must “provide a more detailed justification
than what would suffice for a new policy created on a blank slate” when “its new policy rests
upon factual findings that contradict those which underlay its prior policy.” Id. Any
“[u]nexplained inconsistency” between a rule and its repeal is “a reason for holding an
[agency’s] interpretation to be an arbitrary and capricious change.” National Cable &
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005).
The Proposed Rules fail each of these requirements for lawful agency action and
therefore must be withdrawn. The Listing Rule, Interagency Cooperation Rule, and 4(d) Rule
violate the ESA’s text, structure, and purpose, and exceed the scope of the Agencies’ authority
and discretion under the Act. In addition, the Services have failed to provide a reasoned
justification for the proposed changes, relied on factors Congress did not intend for them to
consider, or entirely overlooked important issues at the heart of their species-protection duties
under the Act. The Services further have evaded their notice obligations under the
Administrative Procedure Act by posing vague questions in the Federal Register notices about
possible additional and damaging changes to the regulations without specific proposed
regulatory text or explanation for the proposed changes. We address each rule and its legal flaws
in turn below.
A. Listing Rule, 83 Fed. Reg. 35,193 (July 25, 2018)
Docket ID No. FWS-HQ-ES-2018-0006
i.

Addition of Economic Impacts to Listing Analyses.

The Listing Rule proposes to remove the listing regulation’s current restriction, embodied
in section 4 of the ESA, that species listing, reclassification, and delisting decisions must be
made “without reference to possible economic or other impacts of such determination.” 50
C.F.R. § 424.11(b); see 83 Fed. Reg. at 35,194-95, 35,200. In removing that limitation, the
Services aim to inject consideration of economic impacts into the species threshold listing,
delisting, and reclassification determinations in clear violation of the Act’s express terms and
without any reasoned explanation.
First, the Services’ economic-cost proposal violates the ESA’s express terms, legislative
intent, and case law. The ESA could not be clearer on this point: species listing decisions must
be made “solely on the basis of the best scientific and commercial data available” about the
status of the species. 16 U.S.C. § 1533(b)(1)(A) (emphasis added).23 Whereas the ESA
authorizes consideration of economic impacts in determining what areas to designate as critical
habitat, id. § 1533(b)(2), it expressly requires that all listing decisions center exclusively on the
biological threats to the species, such as habitat destruction, disease, and predation, without
regard to the economic effects of listing, id. § 1533(a)(1), (b)(1)(A).
The reference to “commercial data” in the statute’s listing provisions is intended to allow the Services
to consider data about trading of species and is “not intended, in any way, to authorize the use of
economic considerations in the process of listing a species.” H.R. REP. No. 97-567, at 20 (1982).
23

10

 Legislative history and case law confirm that the term “solely” was meant to preclude
economic analysis at the listing stage. “The plain intent of Congress in enacting [the ESA] was
to halt and reverse the trend toward species extinction, whatever the cost.” Hill, 437 U.S. at 184
(emphasis added). As numerous courts have recognized, 24 Congress added the term “solely” to
section 4’s listing provisions in 1982 to emphasize that listing determinations were to be made
“solely upon biological criteria and to prevent non-biological considerations from affecting such
decisions.” H.R. REP. No. 97-567, at 19 (1982); see also id. at 20.25 This amendment was
intended to “improve[] and expedite[]” the listing process and to divert “the balancing between
science and economics” to “the [critical habitat] exemption process.” Id. at 12.26
The Services’ proposed elimination of the prohibition on referencing economic impacts
thus is plainly unlawful and manifestly contrary to the statute, undermining Congress’s goal of
improving and expediting the listing process. 5 U.S.C. § 706(2)(A), (C); Chevron, 467 U.S. at
843; Motor Vehicle Mfrs., 463 U.S. at 43. The proposal does not merely “more closely align [the
regulation] with the statutory language,” as the Services claim. 83 Fed. Reg. at 35,194.
Although the Services contend that biological considerations will continue to be the basis for
listing decisions, they themselves acknowledge that they may under their new proposal, actually
“reference[] economic, or other, impacts”—a factor Congress expressly provided they not
consider—in their listing decisions. 83 Fed. Reg. at 35,194; see also id. at 35,195. It is difficult
to believe that the Services and commenters will not consider economic impact information even
as the Services generate and “reference[]” it during the listing stage. Id. at 35,194 (emphasis
added). And it is unclear what purpose it could serve for the Services to spend time and
resources generating economic impact information if they were not going to consider the data.
In any event, that proposed process of compiling and presenting cost-benefit analyses
itself runs counter to Congress’s intent to “improv[e] and expedit[e]” the listing process, even if
the Services counterintuitively intend to ignore it. H.R. REP. No. 97-567, at 12 (1982); S. REP.
No. 97-418, at 4 (1982). The Services nowhere even acknowledge, let alone justify, the added
burden, backlog, and delay these economic impact analyses will create for the Services, thus
“fail[ing] to consider an important aspect of the problem.”27 Motor Vehicle Mfrs., 463 U.S. at
43. Nor do the Services explain what “circumstances” would warrant “referenc[ing]” economic
24

See, e.g., Alabama-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1266 (11th Cir. 2007);
N.M. Cattle Growers Ass’n v. U.S. Fish and Wildlife Serv., 248 F.3d 1277, 1284-85 (10th Cir. 2001);
Ariz. Cattle Growers’ Ass’n v. Kempthorne, 534 F. Supp. 2d 1013, 1035 (D. Ariz. 2008).
25
See also H.R. REP. No. 97-567, at 11-12 (1982); H.R. CONF. REP. No. 97-835, at 20 (1982)
(“[E]conomic considerations have no relevance to determinations regarding the status of species.”); S.
REP. No. 97-418, at 4, 11 (1982).
26
See also S. REP. No. 97-418, at 4 (1982) (1982 amendments “would ensure that . . . economic
analysis . . . will not delay or affect decisions on listing”); id. at 11.
27
See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-17-304, ENVIRONMENTAL LITIGATION:
INFORMATION ON ENDANGERED SPECIES ACT DEADLINE SUITS, pp.5-18 (Feb. 2017) (hereinafter “GAO
Listing Deadline Litigation Report”) (reporting that 141 lawsuits involving 1,441 species were filed from
fiscal year 2005 through 2015 alleging that FWS and NMFS failed to take actions within deadlines
mandated by ESA section 4, largely on petitions to list species), available at
https://www.gao.gov/assets/690/683058.pdf; see also In re Endangered Species Act Section 4 Deadline
Litig.-MDL No. 2165, 704 F.3d 972, 975 (D.C. Cir. 2013) (describing backlog of listing decisions).

11

 impacts or how they plan to quantify the potential costs and benefits of listing decisions, a
particularly challenging task where they lack the requisite resources and expertise to do so and
where, as discussed above, “[t]he value of [species and our] genetic heritage is, quite literally,
incalculable.” Hill, 437 U.S. at 178-79 (quoting H.R. REP. No. 93-412, at 4-5 (1973)); cf. id. at
187-88 (“Quite obviously, it would be difficult for a court to balance the loss of a sum certain—
even $100 million—against a congressionally declared ‘incalculable’ value, even assuming we
had the power to engage in such a weighing process, which we emphatically do not.”).
Second, the Services do not, and cannot, offer any reasoned basis for their economicimpact proposal. The Services may not lawfully resort to their stated goal of informing the
public about the potential costs and benefits of implementation in order to comply with
Congress’s unspecified “support for informing the public as to the impacts of regulations in
subsequent amendments to statutes and executive orders.” 83 Fed. Reg. at 35,195. Whatever the
content of those vaguely referenced authorities, they do not authorize the Services to evade the
ESA’s specific prohibition on the inclusion of economic impacts in listing determinations. 16
U.S.C. § 1533(b)(1)(A); cf. Am. Bicycle Ass’n v. United States, 895 F.2d 1277, 1279-80 (9th Cir.
1990) (general grant of authority does not override “specific and unequivocal” proscription). In
fact, as the Services themselves acknowledge, 83 Fed. Reg. at 35,194, Congress originally added
the term “solely” to the ESA out of concern that those same types of authorities, like the
Regulatory Flexibility Act and Paperwork Reduction Act, potentially could be used to introduce
economic and other factors into listing determinations under the Act. See, e.g., H.R. CONF. REP.
No. 97-835, at 20 (1982) (explaining that “economic analysis requirements of Executive Order
12,291, and such statutes as the Regulatory Flexibility Act and the Paperwork Reduction Act,
will not apply to any phase of the listing process” (emphasis added)). For these reasons, too, the
Services’ attempt to analogize listing determinations to the entirely distinct standard-setting
processes under the federal Clean Air Act is simply inapt. 83 Fed. Reg. at 35,194-95. Because
the Services’ economic-impact proposal is thus both unlawful and unjustified, it should be
withdrawn.
ii.

Redefinition of Foreseeable Future.

The Listing Rule’s second proposed change would narrow the definition of “threatened
species” under the ESA, which includes a species “likely to become an endangered species
within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C.
§ 1532(20). The proposal, if adopted, would for the first time embed quantitative probability
into the term “foreseeable future,” providing that the term would “extend[] only so far into the
future as the Services can reasonably determine that the conditions potentially posing a danger of
extinction . . . are probable.” 83 Fed. Reg. at 35,195, 35,201 (emphasis added). This approach
would allow the Services in listing decisions to “explain the extent to which they can reasonably
determine that both the future threats and the species’ responses to those threats are probable”
and to “tak[e] into account considerations such as the species’ life-history characteristics, threatprojection timeframes, and environmental variability” in that analysis. Id. at 35,195 (emphasis
added). These proposed changes are not only contrary to the statutory language of the ESA, but
they also improperly constrain the Services’ consideration of future threats to a species’
continued existence, including threats related to climate change, without any reasoned basis.

12

 First, the Services’ injection of these “probability” and “variability” criteria into the
threatened species analysis violates the text and purposes of the ESA. The ESA requires the
Services to make its listing determinations “solely on the basis of the best scientific and
commercial data available . . . after conducting a review of the status of the species,” 16 U.S.C.
§ 1533(b)(1)(A), based on threats to the species, id. § 1533(a)(1). As the Services admit, this
analysis must be done on a case-by-case basis and is “uniquely related to the particular species,
the relevant threats, and the data available.” 83 Fed. Reg. at 35,195 (citing In re Polar Bear
Endangered Species Act Listing and Section 4(d) Rule Litig., 709 F.3d 1, 15-16 (D.C. Cir.
2013)). After that assessment, if the Services find it likely that a species will “become an
endangered species within the foreseeable future throughout all or a significant portion of its
range,” they must list that species as threatened. 16 U.S.C. § 1532(20); see id.
§ 1533(b)(1)(B)(ii).
In enacting the ESA, Congress did not define “foreseeable future” or prescribe standards
regarding the “likelihood” that a species would become endangered and thus require the Act’s
protection. The proposed rule’s use of the word “probable,” however, raises the specter that the
Services may only consider threats that have a fifty percent or greater chance of occurring during
a particular time period. It is difficult to imagine—and the Services have failed to explain—how
they would reliably quantify the percentage likelihood of threats to species. And, even if
quantification were possible, it would be unlawful and arbitrary to discount severe threats that
may be, say, 40% likely but would be extremely dangerous. Such an approach also would be
inappropriate for species that may be facing severe or multiple threats that may have a lower
chance of occurring or for which the likelihood cannot be precisely calculated and is contrary to
the Services’ longstanding precautionary approach. Cf. 48 Fed. Reg. 43,098, 43,102-03 (Sept.
21, 1983) (FWS guidelines for reclassification from threatened to endangered status based on
magnitude and immediacy of threats). Simply put, the Services’ new, ultra vires requirements
inject criteria for quantification and certainty that are not required by the Act and will most likely
limit listing decisions, even where potential threats could be devastating. It is thus contrary to
section 4 of the ESA, the overriding conservation purposes of the ESA, and the policy of
“institutionalized caution” embedded in the Act. See 16 U.S.C. § 1531(b); Hill, 437 U.S. at 194.
Courts also have held that the ESA does not mandate that the Services base their
decisions “on ironclad evidence when it determines that a species is likely to become endangered
in the foreseeable future; it simply requires the agency to consider the best and most reliable
scientific and commercial data and to identify the limits of that data when making a listing
determination.” Alaska Oil & Gas Ass’n v. Pritzker, 840 F.3d 671, 681 (9th Cir. 2016).28 In
Pritzker, for example, the Ninth Circuit upheld NMFS’s decision to list the Pacific bearded seal
(Erignathus barbatus nauticus) as a threatened species based on its determination, using several
climate models, that the loss of sea ice over shallow waters in the Arctic would leave the species
endangered by the year 2095. Id. at 674. The Court specifically rejected plaintiffs’ contention
that the climate models “cannot reliably predict the degree of global warming beyond 2050 or
the effect of that warming on a subregion, such as the Arctic.” Id. at 679. “The fact that climate
projections for 2050 through 2100 may be volatile,” the Court explained, “does not deprive those
See also Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544, 558-59 (9th Cir. 2016); San Luis & DeltaMendota Water Auth. v. Jewell, 747 F.3d 581, 602 (9th Cir. 2014); In re Polar Bear Litig., 709 F.3d at 16.
28

13

 projections of value in the rulemaking process” where the Services have used a reasonable
methodology for addressing that volatility and explained its shortcomings. Id. at 680. Under the
Services’ proposed redefinition here, however, rather than making a reasoned determination
based on the best scientific and commercial data available such as climate modeling, NMFS
would have been required to show that “the future threats and the species’ responses to those
threats are probable,” e.g., more likely than not—a standard contrary to the precautionary Act
and case law. See 83 Fed. Reg. at 35,201.
Thus, perhaps most problematically, the Services’ proposed definition would give the
Services carte blanche to ignore “an important aspect of the problem” of species extinction: the
significant threats posed by climate change. See Motor Vehicle Mfrs., 463 U.S. at 43. As noted
above, in addition to its new ultra vires probability requirement, the Services, using code words
for climate change, also direct that the foreseeable future analysis now should “account for any
relevant environmental variability, such as hydrological cycles or oceanographic cycles, which
may affect the reliability of projections” and “consider the timeframes applicable to the relevant
threats and to the species’ likely responses to those threats in view of its life-history
characteristics.” 83 Fed. Reg. at 35,195.
These new “probability” and “variability” criteria may have the perverse effect of
enabling the Services to discount the potentially devastating effects of climate change. The fact
that climate change is occurring and will have impacts on habitat is more than “probable;” it is
certain. But the precise impact that climate change might have on particular areas at particular
times may be uncertain as there might be several varying, perfectly plausible projections of
effects that climate change might have on a particular habitat that could predict somewhat
different impacts at different times. It may be that none of those specific projections reaches the
fifty percent “probability” threshold because of uncertainty due to environmental variability, but
each threat must nonetheless be considered in assessing the “likelihood” that a species will
become endangered. Indeed, as the previous Director of FWS recently testified before
Congress, the Earth’s rapidly changing climate is one of the principal emerging threats to species
nationwide—variability notwithstanding.29 Scientific research confirms that climate change
already is, and over the next several decades will increasingly become, a driver of species
decline and biodiversity loss. 30 And the severity of this threat is already apparent to State
See Testimony of Dan Ashe, Dir., FWS, Dep’t of the Interior, Before the U.S. House of Reps., Comm.
on Oversight and Gov. Reform, Subcomm. on Interior, Regarding Barriers to Recovery and Delisting of
Listed Species Under the Endangered Species Act of 1973 (Apr. 21, 2016), available at
https://www.doi.gov/ocl/esa-delisting; see also, e.g., National Park Serv., “Climate Change Endangers
Wildlife” (June 3, 2018) (noting “estimate[s] that 35% of animals and plants could become extinct in the
wild by 2050 due to global climate change”), available at
https://www.nps.gov/pore/learn/nature/climatechange_wildlife.htm.
30
See, e.g., Céline Bellard, et al., Impacts of Climate Change on the Future of Biodiversity, 15
ECOLOGY LETTERS 365, 375 (2012) (most climate change impact models “indicate alarming
consequences for biodiversity, with the worst-case scenarios leading to extinction rates that would qualify
as the sixth mass extinction in the history of the earth”), available at
https://onlinelibrary.wiley.com/doi/epdf/10.1111/j.1461-0248.2011.01736.x; Paul Leadley et al.,
Biodiversity Scenarios: Projections of 21st Century Change in Biodiversity and Associated Ecosystem
Services, CONVENTION ON BIOLOGICAL DIVERSITY TECHNICAL SERIES NO. 50 (2010); see also U.S.
Dep’t of the Interior, 9 Animals That are Feeling the Impacts of Climate Change (Nov. 16, 2015) (climate
29

14

 agencies studying climate impacts on biodiversity and species conservation31 and planning for
endangered and threatened species conservation.32
Thus, even in the face of evolving threats, the Services must still consider and act on the
best available science in evaluating threats to a species. See Center for Biological Diversity v.
Zinke, 900 F.3d 1053, 1072 (9th Cir. 2018) (FWS must explain why uncertainty of climate
change favors not listing the arctic grayling given evidence of warming water temperatures and
decreasing water flow); Greater Yellowstone Coal. Inc. v. Servheen, 665 F.3d 1015, 1028 (9th
Cir. 2011) (“It is not enough for the [FWS] to simply invoke ‘scientific uncertainty’ to justify its
action.”). But far from considering, as it must, the threat of climate change, the Services under
their proposed redefinition could arbitrarily cite climate change as a justification to avoid species
protections altogether. See Motor Vehicle Mfrs., 463 U.S. at 43.
What is more, the Services again fail to provide any reasoned explanation for this
significant change. They attempt to justify the proposal solely by reference to a 2009 opinion
from the Department of the Interior’s Office of the Solicitor (“2009 Guidance”),33 which they
claim is “well-founded” and “has been widely applied by both Services.” 83 Fed. Reg. at
35,195. But the 2009 Guidance does not even contain the word “probable.” See generally 2009
Guidance. It simply recognizes the unremarkable proposition that the Services have discretion to
make listing determinations based on “the facts applicable to the species being considered,”
provides direction to base such determinations on “reliable” predictions that are “sufficient to
provide a reasonable degree of confidence in the prediction, in light of the conservation purposes
of the Act,” and acknowledges that “[s]ince the foreseeable future is uniquely related to
population, status, trends, and threats for each species and since species often face multiple
threats, the Secretary is likely to find varying degrees of foreseeability with respect to the various
threats.” Id. at 13. None of this guidance affords the Services discretion to ignore reasonably
foreseeable threats to species based solely on uncertainty. To the contrary, and consistent with
the case law, the 2009 Guidance recognizes that the Services must sometimes make listing
decisions extrapolating from limited data, always mindful of the conservation purposes of the

change threatens endangered and threatened species, including loggerhead and other sea turtles, polar
bears, and piping plovers), available at https://www.doi.gov/blog/9-animals-are-feeling-impacts-climatechange.
31
See generally, e.g., CAL. BIODIVERSITY INITIATIVE: A ROADMAP FOR PROTECTING THE STATE’S
NATURAL HERITAGE (Sept. 2018), available at http://opr.ca.gov/docs/20180907CaliforniaBiodiversityActionPlan.pdf; MASS. DIV. OF FISHERIES & WILDLIFE AND MANOMET CTR. FOR
CONSERVATION SCIENCES, 2 CLIMATE CHANGE AND MASSACHUSETTS FISH AND WILDLIFE: HABITAT
AND SPECIES VULNERABILITY (updated Feb. 2018), available at
https://www.cakex.org/documents/climate-change-and-massachusetts-fish-and-wildlife-volume-2-habitatand-species; MICHELLE D. STAUDINGER, ET AL., DEP’T OF THE INTERIOR NORTHEAST CLIMATE SCI.
CTR., INTEGRATING CLIMATE CHANGE INTO NORTHEAST AND MIDWEST STATE WILDLIFE ACTION
PLANS (2015), available at http://necsc.umass.edu/biblio/integrating-climate-change-northeast-andmidwest-state-wildlife-action-plans.
32
See, e.g., HABITAT CONSERVATION PLAN FOR PIPING PLOVER, supra note 12, at 2-10 to 2-11
(continued recovery threatened by habitat loss from sea level rise caused by climate change).
33
Memorandum from Solicitor, U.S. Dep’t of the Interior, to Acting Director, FWS, No. M-37021 (Jan.
16, 2009), available at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf.

15

 Act. Id. at 13, 15-16. The Listing Rule’s proposed requirement that such threats be “probable”
would unlawfully and arbitrarily foreclose that approach and should be withdrawn.
iii.

Elimination of Recovery from Delisting.

The Listing Rule’s third major proposed change would modify the language in 50 C.F.R.
§ 424.11(d) to provide that, when determining whether to delist species, the Services must apply
the same five factors for listing species under ESA section 4(a)(1), 16 U.S.C. § 1533(a)(1); see
also 50 C.F.R. § 424.11(c), eliminating current regulatory language that refers to species
recovery as key basis for delisting, 83 Fed. Reg. at 35,196, 35,201; see 50 C.F.R. § 424.11(d)(2).
Again, the Services’ proposed changes are contrary to the Act and its legislative history and are
arbitrary and capricious.
First, the proposed delisting changes violate the ESA and its intent. The Act plainly
states that its species conservation measures are intended to “bring any endangered species or
threatened species to the point at which the measures provided pursuant to this [Act] are no
longer necessary.” 16 U.S.C. § 1532(3). In other words, as the Ninth Circuit has explained, “the
ESA was enacted not merely to forestall the extinction of species (i.e., promote a species
survival), but to allow a species to recover to the point where it may be delisted.” Gifford
Pinchot Task Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059, 1070 (9th Cir. 2004). Thus,
the ESA specifically requires the Services to develop and implement recovery plans “for the
conservation and survival of endangered species and threatened species listed pursuant to this
section, unless [they] find[] that such a plan will not promote the conservation of the species.”
16 U.S.C. § 1533(f)(1). Among other things, those plans must include “to the maximum extent
practicable . . . objective, measurable criteria which, when met, would result in a determination,
in accordance with the provisions of this section, that the species be removed from the list.” Id.
§ 1533(f)(1)(B)(ii) (emphases added).
The ESA’s legislative history confirms its clear focus on species recovery. Congress
added these procedures in 1988 to prioritize this important goal of the ESA and to remedy the
Services’ failures to prepare adequate recovery plans for listed species. See S. REP. No. 100-240,
at 4, 9 (1987). The amendments were intended to ensure that each recovery plan “contain[s]
objective, measurable criteria for removal of a species from the Act’s lists and timeframes and
cost estimates for intermediate steps toward that goal [to] . . . provide a means by which to judge
the progress being made toward recovery.” Id. at 9. The Act and its legislative history thus
make plain that recovery must be the paramount concern in delisting decisions.
Elimination of recovery considerations in the delisting process would fail to ensure that
listed species have become secure members of their ecosystems prior to removing the Act’s
protections. In particular, the proposed factors in ESA section 4(a)(1) do not discuss recovery
and would not necessarily result in a determination whether threats to the species have been
eliminated or controlled, or whether the population size is stable and trending in a positive
direction. See 16 U.S.C. § 1533(4)(a)(1); 50 C.F.R. § 424.11(c). Consequently, the Services’
proposal could result in the premature delisting of species that are not yet likely to recover, in
direct violation of the conservation purposes of the Act.

16

 Furthermore, the Services have failed to provide any reasoned explanation for this
proposed change, which departs significantly from its longstanding practice. See Fox, 556 U.S.
at 515. Even if recovery plans prepared under section 4(f) are not “binding” on the Services or
do not require the Services to find that “all of the recovery plan criteria had been met before it
could delist” a species, the Services cannot justify disregarding species recovery in the delisting
process altogether. See 83 Fed. Reg. at 35,196 (emphasis added). In fact, even in the case
referenced by the Services, Friends of the Blackwater v. Salazar, 691 F.3d 428 (D.C. Cir. 2012),
FWS did consider recovery in its delisting decision for the West Virginia northern flying
squirrel. See id. at 431 (discussing the Service’s analysis of the recovery plan for the species and
its consideration of data provided pursuant to the plan); 73 Fed. Reg. 50,226 (Aug. 26, 2008)
(delisting “due to recovery”); 71 Fed. Reg. 75,924 (Dec. 19, 2006) (same). Consequently,
proposal to eliminate species recovery as a factor in delisting decisions should be withdrawn, and
the Services should retain the current regulatory language in 50 C.F.R. § 424.11(d)(2) regarding
species recovery in the delisting process.
iv.

Expanding the Limited “Not Prudent” Exception to Critical Habitat
Designation.

The Listing Rule also proposes to expand the circumstances “in which the Services may
find it is not prudent to designate critical habitat” for listed species, and thus elect not to do so,
by replacing the existing two narrow circumstances in which designation would not be prudent
with a non-exhaustive list of five such situations. 83 Fed. Reg. at 35,196, 35,201.34 The
Services’ proposal would dramatically expand an expressly and intentionally narrow exception
to the Act’s important critical habitat designation requirements in violation of the Act and its
purpose, and without any reasoned basis. It, too, should be withdrawn.
First, the Services’ proposal to expand the so-called “not prudent exception” is contrary
to the ESA, Congress’s clear intent, and case law. The Act requires that the Services, when
listing a species as threatened or endangered, also designate “to the maximum extent prudent and
determinable” the habitat that “is then considered to be critical,” 16 U.S.C. §§ 1533(a)(3)(A)
(emphasis added), i.e., “essential to the conservation of the species,” id. § 1532(5)(A).
Recognizing that “the greatest [threat to species] [is] destruction of natural habitats,” Hill, 437
U.S. at 179, Congress intended that such designations be made concurrently with listing
determinations, except in “rare circumstances” when designation “would not be beneficial to the
species,” H.R. REP. No. 95–1625 at 17 (1978).35 Consistent with the Act’s plain text and history,
courts, in turn, have construed the “not prudent” exception as a “narrow statutory exception” to
the general rule that critical habitat must be designated for imperiled species. Natural Res. Def.
Council v. U.S. Dep’t of the Interior, 113 F.3d 1121, 1126 (9th Cir. 1997).36
34

See 50 C.F.R. § 424.12(a)(1).
H.R. REP. No. 95–1625 at 17 (1978) (“The committee intends that in most situations the Secretary will,
in fact, designate critical habitat at the same time that a species is listed as either endangered or
threatened. It is only in rare circumstances where the specification of critical habitat concurrently with
the listing would not be beneficial to the species.”).
36
See also Conservation Council for Hawai’i v. Babbitt, 2 F. Supp. 2d 1280, 1283 (D. Haw. 1998)
(rejecting FWS’s rationales for not designating critical habit for 245 listed plant species and noting that
critical habitat should be designated “in all but rare cases”).
35

17

 In line with that authority, the Services’ current regulations list only two situations in
which a critical habitat designation is not prudent: where identifying critical habitat would risk
harm to the species or where such designation would not benefit the species because, for
example, habitat destruction is not a threat to the species. 50 C.F.R. § 424.12(a)(1). And courts
have interpreted those two exceptions narrowly, rejecting unsubstantiated attempts to avoid
designation. See Sierra Club v. U.S. Fish and Wildlife Serv., 245 F.3d 434, 443 (5th Cir. 2001)
(condemning Services’ practice of “invert[ing] [Congressional] intent, rendering critical habitat
designation the exception and not the rule”); Natural Res. Def. Council, 113 F.3d at 1126. The
Services’ Listing Rule would undermine the ESA’s critical habitat scheme and its courtconfirmed purpose, creating a laundry list of new extra-statutory “not prudent” exceptions and
paving the way for the Services to avoid designating critical habitat, as detailed below.
Second, the Services’ unlawful new exceptions are each arbitrary and capricious, lacking
any reasoned basis. Motor Vehicle Mfrs., 463 U.S. at 43. Most problematically, exception (v)
broadly authorizes invocation of the “not prudent” exception if “the Secretary otherwise
determines that designation of critical habitat would not be prudent.” 83 Fed. Reg. at 35, 201;
see also id. at 35,197. The exception is an overbroad and vague “catchall” that would give
unfettered discretion to the Services to evade the Act’s core critical habitat requirements—an
authority not contemplated by the ESA. Motor Vehicle Mfrs., 463 U.S. at 43. The Services
nowhere explain this proposed, substantial expansion of the exception, which would swallow the
rule that the “not prudent” determinations should be extremely rare.37
Exception (ii) arbitrarily expands the “not prudent” exception to cover circumstances in
which “threats to the species habitat stem solely from causes that cannot be addressed through
management actions resulting from [section 7] consultations.” 83 Fed. Reg. at 35, 201; see also
id. at 35,197. This exception apparently aims directly at precluding critical habitat designations
based on threats to a species from climate change—a “cause” that cannot be “addressed” solely
through the management actions of the Services and the jurisdictions in which critical habitat
lies, but rather requires concerted action at the local, state, federal, and international level. The
proposal arbitrarily assumes, with virtually no explanation, that the value of a critical habitat
designation depends on whether management actions identified through interagency
consultations can address threats to a species’ habitat. Id. at 35,197. But the ESA simply does
not require that effective consultation actions be available for critical habitats to be designated; it
separately requires both critical habitat designation and consultation. 16 U.S.C.
§§ 1533(a)(3)(A), 1536; cf. Natural Res. Def. Council, 113 F.3d at 1126 (rejecting Services’
rationale that designating critical habitat would not be prudent because the bulk of the species’
habitat was located on private lands).
Additionally, there are significant substantive and procedural benefits that result from the
designation of critical habitat outside of the consultation requirements, including educating the
public and state and local governments about the importance of certain areas to listed species,
assisting in species recovery planning efforts, identifying areas where agency consultation will
be required, and “establish[ing] a uniform protection plan prior to consultation.” Conservation
Fox, 556 U.S. at 515 (agency must provide “good reasons” for policy change); National Cable &
Telecomms. Ass’n, 545 U.S. at 981 (“unexplained inconsistency” is basis for invalidation).
37

18

 Council for Hawai’i v. Babbitt, 2 F. Supp. 2d 1280, 1288 (D. Haw. 1998).38 Indeed, the Services
themselves acknowledge as much. 83 Fed. Reg. at 35,197. In light of these myriad benefits of
critical habitat outside of the section 7 requirements, far from justifying an exception to critical
habitat designations as the Services appear to claim, id., the threat of climate change casts in
stark relief the importance of such designations to ensure robust understanding of and protections
for the many species it threatens.
Exception (iii) allows areas within the United States to be excluded from critical habitat
designations if they would provide “no more than negligible conservation value” to species
“occurring primarily outside” the United States. Id. at 35,201; see also id. at 35,197. The
Services fail to explain what they mean by “negligible conservation value” or how they would
determine whether a species “occur[s] primarily” elsewhere, injecting more vague and subjective
loopholes into the designation analysis and depriving the public of a meaningful opportunity to
comment. Home Box Office, 567 F.2d at 35 (notice must “disclose in detail the thinking that has
animated the form of a proposed rule and the data upon which that rule is based,” to afford
meaningful opportunity for comment). Further, the exception fails to appreciate that a
designation within the United States could still be beneficial and protect habitat that is important
for the species’ survival and recovery, particularly for migratory species.
The Services cannot save their ultra vires proposal based on their stated intention to
“reduce the burden of regulation” or their passing assurance that “not-prudent determinations
would continue to be rare.” 83 Fed. Reg. at 35,197. The Listing Rule on its face adds several
new and extremely broad exceptions to the ESA’s critical habitat mandate and, in practice,
would give the Services carte blanche to forego critical habitat designation, particularly where
climate change threatens species’ habitat. Accordingly, the Listing Rule’s proposed exceptions
must be abandoned.
v.

Restricting Unoccupied Critical Habitat Designation.

The Listing Rule also proposes to “clarify” when areas not yet occupied by the
endangered or threatened species (“unoccupied areas”) are “essential for the conservation of the
species” and thus warrant designation as critical habitat. Id. at 35,198, 35,201. The proposal is
not a mere clarification; it torpedoes the ESA’s critical habitat designation process by arbitrarily
demoting unoccupied habitat without regard to the effects of climate change, delaying the time at
which occupied areas are identified, and creating a laundry list of arbitrary new factors the
Services can invoke to evade critical habitat designation, including at the behest of private
landowners. Id. Like the other proposals, it must be withdrawn.
Prioritizing, and Delaying Determinations of, Occupied Critical Habitat. The proposed rule
would restrict designation of unoccupied critical habitat by requiring the Services first to
evaluate whether currently occupied areas are inadequate for species conservation—without
explaining how the Services would make that determination—using occupation at the time of
critical habitat designation (and not the listing decision) as the point of reference. Id. at 35,198,
35,201. As an initial matter, as the Services themselves recently concluded, there is no basis in
See also 81 Fed. Reg. 7,414, 7,414-15 (Feb. 11, 2016) (Services’ own statement describing “several
ways” that critical habitat “can contribute to the conservation of listed species”).
38

19

 the statute or legislative history for the Services to evaluate occupied areas before considering
unoccupied areas.39 The ESA expressly requires the Services to consider both occupied and
unoccupied habitat in designating critical habitat. 16 U.S.C. § 1532(5)(A). By arbitrarily
elevating occupied critical habitat to the preferred and default designation option, this proposal
would discount the importance of previously occupied habitat to species recovery. If a species
has reached the point of becoming endangered or threatened, it is quite likely that it no longer
occupies habitat that it once occupied. Indeed, the Act’s critical habitat provisions are intended
to address that reality. See Hill, 437 U.S. at 179. It thus would flout the Act’s recovery purpose
to look first at the narrowed range of habitat currently occupied by the species rather than areas
within its historical range.
What is more, this proposal too would permit the Services to avoid addressing the effects
of climate change, allowing the Services to ignore unoccupied areas that could provide important
habitat in a changing climate. We are already seeing an unprecedented migration of plant and
animal species into new areas as a result of climate change.40 As the Services recently explained,
“[a]s the effects of global climate change continue to influence distribution and migration
patterns of species, the ability to designate areas that a species has not historically occupied is
expected to become increasingly important” to ensure connectivity between habitats and protect
movement corridors and emerging habitat for species experiencing range shifts in latitude or
altitude. 81 Fed. Reg. at 7,435; see also 83 Fed. Reg. 42,362, 42,365 (Aug. 21, 2018)
(designating unoccupied critical habitat for three plant species to allow for expansion of the
species’ range and the reintroduction of individuals into areas where the species historically
occurred, and to provide areas for recovery); cf. Conservation Council for Hawai’i, 2 F. Supp. 2d
at 1288. The Services’ proposal does not at all contend with this important consideration. See
Motor Vehicle Mfrs., 463 U.S. at 43.

81 Fed. Reg. at 7,426-27 (emphasizing that “there is no suggestion in the legislative history that the
Services were expected to exhaust occupied habitat before considering whether any unoccupied areas
may be essential” and “no specific language in the Act that requires the Services to first prove that the
inclusion of all occupied areas in a designation are insufficient to conserve the species before considering
unoccupied areas”).
40
See Céline Bellard, et al., Impacts of Climate Change on the Future of Biodiversity, supra note 30, at
367 (“[R]ange shifts have . . . been observed [for] more than 1,000 species.”); Robert A. Robinson, et al.,
Travelling Through a Warming World: Climate Change and Migratory Species, 7 ENDANGERED SPECIES
RESEARCH 87, 95 (2009) (migrating species are responding to climate change by altering their ranges and
“it will be important to protect areas that may be used in the future,” at the edge or beyond current
ranges); Thomas T. Moore, Climate Change and Animal Migration, 41 ENVTL. L. 393, 405 (2011)
(climate change may cause migration corridors and destinations to shift out of protected areas). Among
imperiled marine species with migration affected by climate change, the critically endangered North
Atlantic right whale (Eubalaena glacialis) has been foraging farther north because of changed
zooplankton distributions due to warming in the Gulf of Maine and, in winter, spending more time in
Mid-Atlantic waters and less time in calving grounds off the southeastern U.S. coast. See Sean A. Hayes,
et al., U.S. DEP’T OF COMMERCE, NOAA TECHNICAL MEMORANDUM NMS NE-247, NORTH ATLANTIC
RIGHT WHALES – EVALUATING THEIR RECOVERY CHALLENGES IN 2018 (2018) (citing multiple studies).
With fewer than 450 North Atlantic right whales left in existence, unmitigated climate impacts could
drive the species to extinction.
39

20

 Finally, the requirement that occupied habitat be assessed at the time of critical habitat
designation conflicts with the ESA’s directive that the Services designate critical habitats “to the
maximum extent prudent and determinable . . . concurrently with making a [listing]
determination.” 16 U.S.C. § 1533(a)(3)(A) (emphasis added). In other words, the ESA makes
clear that habitat assessments should occur at time of listing. But the Services often do not
designate critical habitat on time, at the time of listing.41 Thus, by prioritizing occupied habitat
and assessing occupation at the most likely later point of critical habitat designation, the Services
will likely designate even less habitat where species populations have already dwindled in the
intervening time, again arbitrarily omitting previously occupied habitat for imperiled species. To
comport with the ESA’s approach of “institutionalized caution,” the Services must instead base
designations on data from both the time of listing and critical habitat designation, considering
both occupied and unoccupied areas concurrently. See Hill, 437 U.S. at 194.
Definition of Unoccupied Critical Habitat. Second, the Services dramatically redefine and
substantially narrow when unoccupied areas will be considered “essential for the conservation of
the species.” 16 U.S.C. § 1532(5)(A)(ii). Specifically, the proposed rule would create a twofactor test that would allow designation of unoccupied critical habitat only if (1) the currently
occupied area, as discussed above, is (a) “inadequate to ensure the conservation of the species”
or (b) “result[s] in less-efficient conservation of the species,” and (2) “there is a reasonable
likelihood that the [unoccupied] area will contribute to the conservation of the species” as
determined through three new “area-specific factors.” 83 Fed. Reg. at 35,198, 35,201. To be
sure, habitat should not be designated as critical unless it has some likelihood of contributing to
the conservation of the species. But this proposal’s sweeping two-step test would veer far
beyond that threshold. Rather than promote “flexibility,” id. at 35,198, it would upend the
regulatory scheme and give the Services virtually unlimited discretion to refuse to designate
unoccupied critical habitat based on almost any conceivable non-biological rationale, contrary to
the conservation purpose of the Act in general and its critical habitat provisions in particular and
to the great detriment of imperiled species.
The first step requires the Services to assess whether occupied areas are providing
adequate and efficient conservation for the species. Id. at 35,198. Broadly speaking, as
discussed above, there is no basis in the Act or in the legislative history for the Services to
elevate occupied critical habitat as the default designation option. 16 U.S.C. § 1532(5)(A).
Further, even if the Act allowed the Services to consider occupied areas before making an
unoccupied critical habitat designation, the first step of this two-part test does not provide clear
guidance for how occupied areas should be assessed. For instance, the Services state that
“efficient conservation” “refers to situations where the conservation is effective, societal
conflicts are minimized, and resources expended are commensurate with the benefit to the
species.” 83 Fed. Reg. at 35,198 (emphases added). But the Services fail to explain what the
term “societal conflicts” means, and the proposal is therefore fatally vague, precluding
meaningful opportunity for comment. See Horsehead Res. Dev. Co. v. Browner, 16 F.3d 1246,
1268 (D.C. Cir. 1994). Thus unexplained, the term “societal conflicts” also is overly broad,
extending well beyond the economic impacts the ESA permits the Services to consider. 16
See, e.g., Alabama-Tombigbee Rivers Coal., 477 F.3d at 1268 (“We are troubled by the Service's
apparent practice of routinely delaying critical habitat designation until forced to act by court order.”).
41

21

 U.S.C. § 1533(b)(2).42 Additionally, the alluded to “resource expenditure” analysis gives the
Services unlawfully broad discretion to determine that the benefits of a critical habitat
designation may not be worth the cost, with virtually no guidance. The proposal thus would
significantly limit the circumstances under which the Services would designate an unoccupied
critical habitat, contrary to the Act’s equal concern for both occupied and unoccupied areas and
the ESA’s overarching species-recovery goals. 16 U.S.C. § 1532(5)(A).
The second step of the Listing Rule’s two-part test—requiring a “reasonable likelihood
that the [unoccupied] area will contribute to the conservation of the species”—is likewise
unsupported by law and arbitrary. 83 Fed. Reg. at 35,198. The proposal adds three area-specific
factors for the Services to consider when making a “reasonable likelihood” determination, two of
which are plainly contrary to the ESA: (a) “whether the area is currently or is likely to become
usable habitat for the species,” and (b) whether any “federal agency actions are likely to be
proposed with respect to the area” (i.e., whether interagency consultation will be triggered). Id.
The first area-specific factor—whether unoccupied area is usable given the “current state
of the area,” the “extent to which extensive restoration would be needed,” and whether this
restoration is “likely” by current landowners or managers, id.—arbitrarily bases critical habitat
designations on landowner whim in violation of the ESA and its purposes and ignores the many
benefits of critical habitat designations, see Conservation Council for Hawai’i, 2 F. Supp. 2d at
1288. Critical habitat designations must be based on the “best scientific data available” and are
not subject to a private-landowner exception. 16 U.S.C. § 1533(b)(2).
To be sure, the States recognize that the designation of private land as critical habitat can
raise difficult issues. But this proposal is antithetical to the ESA’s biological focus and
conservation purpose. It would allow “private landowners [to] trump the Service’s scientific
determination that unoccupied habitat is essential for the conservation of a species so long as
they declare that they are not currently willing to modify habitat to make it habitable and that
they will not be willing to make modifications in the foreseeable future.” Markle Interest, L.L.C.
v. U.S. Fish and Wildlife Serv., 827 F.3d 452, 470 (5th Cir. 2016) (rejecting argument that ESA
authorizes “private landowner exemption from unoccupied critical-habitat designations”), cert.
granted, Weyerhaeuser Co. v. U.S. Fish and Wildlife Serv., 138 S. Ct. 924 (2018). Moreover, the
suggestion that landowners can prevent critical habit designation simply by expressing hostility
to the idea would diminish, rather than promote, landowner cooperation and participation in
recovery efforts. We encourage the Services instead to identify ways to create incentives for
landowners to participate in conservation and recovery.
The second area-specific factor—whether an unoccupied area will trigger interagency
consultation, 83 Fed. Reg. at 35,198—arbitrarily and without explanation assumes that
consultation is a prerequisite to the conservation value of species’ habitat. Without any basis in
the statute or fact, the Services claim that “the likelihood that an area will contribute to
conservation is, in most cases, greater for public lands and lands for which . . . federal actions
can be reasonably anticipated than for other types of land,” admitting their intent largely to
In addition, it is unclear whether the Services also intend to consider “societal conflicts” in evaluating
whether occupied habitat is “essential to the conservation of the species” under 16 U.S.C. 1532(5)(A)(i).
The Services should clarify that they do not intend to do so.
42

22

 confine consultation to federal lands. Id. As discussed above, in Section II.A.iv., however, the
Services’ assumption is inconsistent with the mandate of the ESA, which does not require that
effective consultation actions be available for an area of critical habitat to be designated, again
unlawfully putting the consultation cart before the critical habitat designation horse. 16 U.S.C.
§§ 1533(a)(3)(A), 1536. And it ignores the fact that there are a variety of reasons—like
educating the public, planning species recovery, and identifying areas for consultation in the
future—why an area should still be considered essential to the conservation of species and why
designation of that critical habitat could further species’ conservation, even if that land were not
slated for a federal action that would prompt interagency consultation. For all the above reasons,
the Services should withdraw the proposed Listing Rule.
B. Interagency Cooperation Rule, 83 Fed. Reg. 35,178 (July 25, 2018)
Docket ID No. FWS-HQ-ES-2018-0009
The Services’ proposed amendments to the Interagency Cooperation Regulations
implementing section 7 of the ESA would make numerous significant, and in some cases
sweeping, changes to the definitions and requirements of those regulations. In summary, these
proposed changes are designed to: (a) limit the circumstances under which a federal agency
action would be deemed to destroy or adversely modify critical habitat; (b) limit analysis of the
type and extent of effects of a federal agency action; (c) create significant new exemptions from
the consultation requirement; (d) limit re-initiation of consultation on federal land and resource
management plans; (e) allow federal action agencies to conduct biological analyses that should
be conducted by the Services; (f) allow federal action agencies to adopt mitigation measures as
part of the project description without committing to implementation of these measures; and
(g) allow for broad-based “programmatic” and “expedited” consultations that give short shrift to
site-specific and in-depth analysis of a proposed federal agency action. Collectively, these
proposed changes would severely limit: the circumstances requiring consultation; the scope of
consultations, including the effects analyzed and the reasonable and prudent alternatives
considered and mitigation measures required; and the number of “jeopardy” and “adverse
modification” findings. As such, these proposed rules fail to “insure” that federal actions will
not jeopardize listed species or destroy or adversely modify critical habitat, or that reasonable
and prudent alternatives and mitigation measures will be required for such actions, as required by
section 7.
The proposed revisions are contrary to the plain language and purpose of section 7, the
conservation purpose of and precautionary approach undergirding the ESA, and the controlling
case law. The Services therefore lack the authority to adopt these changes. In addition, the
Services have failed to articulate a reasoned basis for the proposed changes, many of which—
contrary to the Services’ repeated assertions—constitute major, unexplained departures from the
Services’ decades-long practice. The proposals thus are also arbitrary and capricious.
i.

Revised Definitions.

“Destruction or Adverse Modification” of Critical Habitat. The proposed revisions would
alter the definition of “destruction or adverse modification” in 50 C.F.R. § 402.02, one of the
triggers for consultation under ESA section 7(a)(2), to require the destruction or adverse
modification of the critical habitat “as a whole.” 83 Fed. Reg. at 35,179-80, 35,191. The
23

 proposal also would eliminate the definition’s existing provision that “[s]uch alterations may
include, but are not limited to, those that alter the physical or biological features essential to the
conservation of a species or that preclude or significantly delay development of such features.”
Id. Although the Services initially claim that these changes would simply clarify the definition,
they later disclose their intent to require that the “final destruction or adverse modification
determination [be] made at the scale of the entire critical habitat designation,” not any “less
extensive scale.” Id. at 35,180-81. These changes would severely limit the circumstances under
which agency action would be deemed to destroy or adversely modify critical habitat, and allow
for piecemeal, cumulative adverse effects on such habitat, including effects on features essential
to the species’ conservation, contrary to section 7, the definition of critical habitat, and the
conservation purpose of the ESA.
Section 7(a)(2) requires agencies to “insure” that their actions are “not likely to . . . result
in the destruction or adverse modification of” critical habitat, nowhere specifying that such
destruction or adverse modification must occur at the scale of the entire designated habitat. 16
U.S.C. § 1536(a)(2). In addition, the ESA defines “critical habitat” as both occupied and nonoccupied areas that are “essential” to or for “the conservation of the species.” Id. § 1532(5)(A).
“Conservation” is essentially synonymous with full “recovery” of the species.43 Thus, critical
habitat is “adversely modified” by any actions impairing species’ recovery, and species’ full
recovery must be considered when federal agencies evaluate the effect of their actions on critical
habitat. See Lubchenco, 723 F.3d at 1054; Native Ecosys., 509 F.3d at 1322.
By evaluating impacts only on a species’ entire designated critical habitat, the proposal
ignores the fact that impacts to a portion of a species’ designated critical habitat, particularly for
species that are highly endangered, may jeopardize a species’ chances of recovery, or even its
very survival. This proposed change also would allow agencies to ignore or minimize the
importance of the adverse cumulative effects of individual federal actions on critical habitat at a
site-specific level, or those that occur on a short-term basis.44 The proposed changes ignore the
reality that critical habitat is not destroyed or modified all at once or as a whole; habitat is lost
site-by-site, and such smaller-scale destruction or modification accordingly must be addressed at
the site-specific level. The proposal thus is contrary to the ESA’s plain language and recovery
purpose.
The Services also fail to explain or justify this proposed rule change. 45 In particular, they
fail to explain the deletion of the existing language stating that destruction or adverse
modification occurs when an action alters “the physical or biological features essential to the
43

See 16 U.S.C. §§ 1531(b), 1532(3); see also, e.g., Alaska v. Lubchenco, 723 F.3d 1043, 1054 (9th Cir.
2013); Center for Native Ecosys. v. Cable, 509 F.3d 1310, 1322 (10th Cir. 2007).
44
See Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1270-71 (11th Cir. 2009);
National Wildlife Fed’n v. National Marine Fisheries Serv., 524 F.3d 917, 930, 934-35 (9th Cir. 2008);
Pacific Coast Fed’n of Fishermen’s Ass’n v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1093 (“Pacific
Coast II”) (9th Cir. 2005); Pacific Coast Fed’n of Fishermen’s Ass’n v. National Marine Fisheries Serv.,
265 F.3d 1028, 1036-37 (9th Cir. 2001) (“Pacific Coast I”).
45
Fox, 556 U.S. at 515 (agency must provide “good reasons” for policy change); National Cable &
Telecomms. Ass’n, 545 U.S. at 981 (“unexplained inconsistency” is basis for invalidation of regulation or
policy).

24

 conservation of a species or that preclude or significantly delay development of such features.”
50 C.F.R. § 402.02; see 83 Fed. Reg. at 35,179-80, 35,191. In 2016, the Services determined
that addition of this text was necessary to ensure that federal agency actions do not destroy or
adversely modify critical habitat essential for a species’ recovery. 81 Fed. Reg. 7,214, 7,216-17
(Feb. 11, 2016); see also id. at 7,219-20. In an about-face, the Services now state that this
language is being deleted because it purportedly has caused controversy and confusion and is
unnecessary, but the Services do not explain why or how. 83 Fed. Reg. at 35,181. Nor do the
Services explain how the new “streamline[d] and simplif[ied]” text will remedy that confusion or
provide adequate guidance for when an action will destroy or adversely modify critical habitat.
Id. Rather, the Services implausibly assure the public that they will continue to determine how
alterations to critical habitat could affect species recovery. Id. But this assurance is refuted by
the proposals’ changes to the definition of adverse modification, and the Service’s other,
contradictory statements that the revisions will reduce the circumstances under which a federal
action will be deemed to adversely modify critical habitat. Id.
“Effects of the Action.” The Services also propose significantly to alter the existing definition
of “effects of the action” in 50 C.F.R. § 402.02, limiting both the type and extent of effects of a
proposed federal agency action that must be considered during the consultation process. The
proposal would restrict evaluation of an action’s effects during the consultation process,
requiring that the proposed action be considered a “but for” cause of the effects or activities and
that the effects or activities be “reasonably certain to occur” to be considered in evaluating the
potential impacts of a federal agency action. 83 Fed. Reg. at 35,183, 35,191. Under the
proposal, to be considered “reasonably certain to occur,” an activity must not be speculative,
based on: (a) consideration of “past relevant experiences,” (b) “[a]ny existing relevant plans,”
and (c) “[a]ny remaining economic, administrative, and legal requirements necessary for the
activity to go forward.” Id. at 35,193. The proposed rules apply this concept of “reasonable
certainty” to all effects of the proposed action, including direct and interrelated or interdependent
effects, whereas previously the “reasonable certainty” standard applied only to indirect and
cumulative effects of the proposed action. Id. at 35,183-84, 35,189.
These changes are inconsistent with the ESA and applicable case law. Section 7(a)(2) is
“[t]he heart of the ESA,” Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 495 (9th
Cir. 2011), requiring federal agencies to “insure” that their actions are not likely to jeopardize
listed species or result in the destruction or adverse modification of their habitat, 16 U.S.C.
§ 1536(a)(2). Section 7(b) requires action agencies to consult with the Services if any part of a
proposed action “may affect any listed species or critical habitat.” Western Watersheds Project,
632 F.3d at 495. The “may affect” trigger for consultation is a “relatively low threshold[,]”
allowing an agency to “avoid the consultation requirement only if it determines that its action
will have ‘no effect’ on a listed species or critical habitat.” Karuk Tribe of Cal. v. U.S. Forest
Serv., 681 F.3d 1006, 1027 (9th Cir. 2012). For agency actions that “may affect” listed species
or critical habitat, the Services must evaluate, in a comprehensive biological opinion, the effects
of all aspects of that action, including short-term and long-term effects, and site-specific and
cumulative effects, when combined with the adverse effects on the species and habitat that are
already included as part of the environmental baseline.46 The scope of that evaluation in a
See, e.g., Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 878 F.3d 725, 737-38 (9th Cir.
2017); Wild Fish Conservancy v. Salazar, 628 F.3d 513, 521-24 (9th Cir. 2010); Miccosukee Tribe, 566
46

25

 biological opinion directly affects the determination of whether the action is likely to cause
jeopardy or adverse modification of critical habitat, and whether “reasonable and prudent
alternatives” to the action will be required, as well as the type and extent of “reasonable and
prudent measures” that will be required to mitigate the adverse effects of the action. 16 U.S.C.
§ 1536(b)(3)(A), (b)(4); see Wild Fish Conservancy, 628 F.3d at 522 (“The delineation of the
scope of an action can have a determinative effect on the ability of a biological opinion fully to
describe the impact of the action on the viability of the threatened species . . . .”).
Contrary to these statutory requirements, the proposed changes to the definition of
“effects of the action” would arbitrarily limit the scope of the section 7 analysis to effects for
which the federal agency action was a “but for” cause and those that are deemed “reasonably
certain to occur” based on a variety of non-biological factors. For example, the numerous nonbiological “reasonable certainty” factors and limitations in new section 402.17 would allow
arbitrary exclusion of certain effects—that are admittedly caused by the proposed action—from
the section 7 effects analysis, based on almost any conceivable rationale. See 83 Fed. Reg. at
35,189. In addition, these changes would allow federal action agencies and the Services to
narrowly define the scope of the proposed action and its effects and to conduct a piecemeal,
limited evaluation of the action’s adverse effects on listed species and critical habitat, thus
ignoring many of the action’s true impacts, contrary to the ESA and governing case law.
These “reasonable certainty” factors also would give the Services leeway to ignore
agency actions’ contributions to climate change and resulting effects. As discussed supra in
Section II.A.ii., it is certain that climate change will increasingly affect species conservation
even though the precise extent of the impact may at times be difficult to predict with certainty.
Thus, the proposed regulations, like the biological opinion invalidated in National Wildlife
Federation, amount “to little more than an analytical slight [sic] of hand” that will enable federal
action agencies and the Services to “manipulat[e] the variables to achieve a ‘no jeopardy’
finding.” 524 F.3d at 933. Indeed, the proposal not only would enable such manipulation, but
also would officially sanction it and render it common practice, contrary to the statutory
commands of section 7. Moreover, the proposed “reasonable certainty” factors run counter to
the ESA’s requirement that the Services must use the “best available science” in conducting
consultations. 16 U.S.C. § 1536(a)(2). The Services must make decisions based on the best
scientific information available at the time the decision is made rather than defer analysis or
decisions simply because either the information or outcome is not “reasonably certain.” See
Conner, 848 F.2d at 1453-54.
In addition, the Services have failed to adequately explain or justify these proposed
changes. Once again, the Services provide only the empty excuse that these changes are
intended to simplify the definition, “increase consistency and avoid confusion and speculation,”
and codify the existing practice in conducting section 7 consultations. 83 Fed. Reg. at 35,183.
But the Services do not identify any inconsistency or confusion that needs to be resolved or
explain how the proposed changes would resolve those problems. In fact, the proposed changes

F.3d at 1270; National Wildlife Fed’n , 524 F.3d at 928-30, 934-35; Pacific Coast II, 426 F.3d at 109095; Pacific Coast I, 265 F.3d at 1036-38; Conner v. Burford, 848 F.2d 1441, 1453, 1457 (9th Cir. 1988).

26

 are likely to lead to increased confusion, inconsistency, and uncertainty as to what effects can
and cannot be considered during consultation.
Furthermore, the assertion that the “reasonable certainty” standard already was part of its
existing practice in conducting section 7 consultations is plainly incorrect. See 83 Fed. Reg.
35,183-84 (citing 80 Fed. Reg. 26,832, 26,837 (May 15, 2015)). The cited discussion from the
2015 rule change does not pertain to the scope of analysis of the effects of a proposed federal
action in a biological opinion. Rather, the discussion applies only to the determination whether
incidental take is “reasonably certain to occur” and must be accounted for in an incidental-take
statement accompanying the biological opinion under section 7(b)(4). See 80 Fed. Reg. at
26,836-37. In sum, rather than resolving uncertainty or codifying current practice, the proposed
changes would severely limit the effects of federal action considered in the section 7 consultation
process, contrary to the plain language and purposes of section 7 and the ESA as a whole.
“Environmental Baseline.” The Services next propose to separate out the concept of the
“environmental baseline” currently embedded in the definition of “effects of the action” into a
separate definition in 50 C.F.R. § 402.02. While the Services are not now proposing any specific
change to the “environmental baseline” concept, they request comment on possibly revising the
definition of “environmental baseline” to mean “the state of the world absent the action under
review,” including “the past, present[,] and ongoing impacts of all past and ongoing Federal,
State, or private actions and other human activities in the action area . . . .” . 83 Fed. Reg. at
35,184 (emphasis added). As discussed below, this suggested change raises the concern that the
Services or federal action agencies will subsume ongoing actions or conditions into the baseline,
thereby failing to account for the full extent of impacts of those actions and artificially inflating
the baseline, thus inappropriately minimizing an action’s adverse impacts on listed species and
critical habitat, once again contrary to section 7.
The courts have made clear that section 7 of the ESA applies to federal agency actions
over which an agency has discretionary involvement or control. National Assn. of Homebuilders
v. Defenders of Wildlife, 551 U.S. 644, 667-68 (2007). The courts have expressly held that
“agency action” must be construed broadly and includes ongoing federal agency actions or
actions over which the agency otherwise has discretionary involvement or control.47 Indeed, the
U.S. Supreme Court has held that “it is clear Congress foresaw that § 7 would, on occasion,
require agencies to alter ongoing projects in order to fulfill the goals of the Act.” Hill, 437 U.S.
at 186 (emphasis added).
Courts also have expressly held that where there is a federal agency action that meets the
section 7 consultation trigger, the Services cannot minimize the effects of that action by
subsuming an ongoing federal agency action within the environmental baseline. For example, in
National Wildlife Federation, NMFS incorporated ongoing impacts of dam operation into the
environmental baseline in a biological opinion on the ground that ongoing operations were “non47

See, e.g., Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1086-88 (9th Cir. 2015);
Karuk Tribe, 681 F.3d at 1020; Wild Fish Conservancy, 628 F.3d at 521-22, 524; Turtle Island
Restoration Network v. National Marine Fisheries Serv., 340 F.3d 969, 977 (9th Cir. 2003); Natural Res.
Def. Council v. Houston, 146 F.3d 1118, 1126 (9th Cir. 1998); Pacific Rivers Council v. Thomas, 30 F.3d
1050, 1054 (9th Cir. 1994); Conner, 848 F.2d at 1453.

27

 discretionary.” 524 F.3d at 928-33. The court invalidated the biological opinion, holding that
the ESA does not permit agencies to “ignore potential jeopardy risks by labeling parts of an
action non-discretionary.” Id. at 928. Accordingly, NMFS may not sweep “so-called
‘nondiscretionary’ operations into the environmental baseline, thereby excluding them from the
requisite ESA jeopardy analysis.” Id. at 929; accord San Luis & Delta Mendota Water Auth.,
747 F.3d at 639-40. The D.C. Circuit recently followed suit, holding that the FWS “acted
arbitrarily in establishing the environmental baseline without considering the degradation to the
environment caused by” the ongoing operation of a hydropower project. American Rivers v.
FERC, 895 F.3d 32, 46-47 (D.C. Cir. 2018).48
Against this weight of authority, the Services attempt to cite as support for their potential
change “complexities” that they claim have arisen in consultations on ongoing agency actions,
such as: “if an ongoing action is changed, is the incremental change in the ongoing action the
only focus of the consultation or is the entire action or some other subset reviewed,” and “is the
effects analysis different if the ongoing action has never been the subject of consultation as
compared to if there is a current biological opinion for the ongoing action,” among other
questions. 83 Fed. Reg. at 35,184. As discussed above, however, these questions have already
been answered by controlling case law: the “effects of the action” include all effects of an
ongoing federal agency action over which the agency has discretionary involvement or control—
regardless of whether consultation was previously conducted on the action—added to the effects
on the species and habitat already occurring as part of the environmental baseline but which are
not in any way caused by the federal agency action, including its ongoing effects. In sum, the
Services’ proposed incorporation of ongoing federal agency actions into the “environmental
baseline” runs afoul of established law.
ii.

Exemptions from the Consultation Requirement.

Although not included in the proposed rules, the Services seek comment on revising 50
C.F.R. § 402.03 to eliminate the consultation requirement when the Federal agency does not
anticipate take, and the action either: (1) will not affect listed species or critical habitat; (2) will
have effects that are “manifested through global processes” and cannot be reliably predicted or
measured, or would have “an extremely small and insignificant” or “remote” impact on species
or critical habitat; or (3) will have impacts that “are either wholly beneficial or are not capable of
being measured or detected in a manner that permits meaningful evaluation.” 83 Fed. Reg. at
35,185. The Services again state that the purpose of this new suite of “no-consultation” criteria
is “to increase efficiency in implementing section 7(a)(2) consultations,” claiming that “such
actions are far removed from any potential for jeopardy or destruction or adverse modification of
critical habitat . . . .” Id. The Services also seek comment on whether the scope of consultation
under section 7(a)(2) should be limited solely to the “activities, areas, and effects within the
jurisdictional control and responsibility of the regulatory agency.” Id.
See also Turtle Island Restoration Network, 878 F.3d at 737-38 (“[B]aseline conditions must be
factored into the jeopardy analysis, cumulatively with the entirety of agency actions. The relevant inquiry
is therefore whether the ‘action effects, when added to the underlying baseline conditions,’ are such that
they would cause jeopardy.”); Wild Fish Conservancy, 628 F.3d at 522-29 (FWS required to analyze the
effects of ongoing operation of a fish hatchery on the endangered bull trout, and had not adequately
justified analyzing the ongoing action for only a five-year period).
48

28

 The foregoing proposals are patently inconsistent with the ESA for multiple reasons.
First, they would significantly limit the circumstances under which a federal agency would be
required to consult with the Services on a proposed federal action, contrary to the plain language
and intent of section 7. As already discussed, the “may affect” standard in section 7(b)
establishes a “low threshold” for the consultation requirement and requires the Services to
examine and account for all aspects of the federal agency action, including beneficial effects and
effects that cannot be predicted with certainty. Karuk Tribe, 681 F3d. at 1027 (citing California.
ex rel. Lockyer v. U.S. Dep’t of Agric., 575 F.3d 999, 1018 (9th Cir. 2009)).49 Accordingly, “[a]n
agency may avoid the consultation requirement only if it determines that its action will have ‘no
effect’ on a listed species or critical habitat.” Karuk Tribe, 681 F.3d at 1027 (emphasis added).
The Services have no authority to create by regulation new exemptions from federal
agencies’ mandatory duties under section 7. Hill, 437 U.S. at 173, 188 (section 7 “admits of no
exception”); Conner, 848 F.2d at 1455 (“Appellants ask us, in essence, to carve out a judicial
exception to ESA’s clear mandate that a comprehensive biological opinion . . . be completed
before initiation of the agency action . . . .We reject this invitation to amend the ESA. That is the
role of Congress, not the courts.”). What is more, in proposing to exempt from consultation
proposed actions that will have effects “manifested through global processes,” the Services again
arbitrarily attempt to create a “climate change” exception to yet another bedrock program of the
ESA, in this case when federal agencies are contributing to the problem. But, as already
discussed, see supra Section II.A.ii., iv., and v., where climate change is a threat, it is even more
important that the ESA’s species protections be fully implemented and enforced to ensure
species recovery and conservation.
Second, the Services cannot adequately justify or explain this proposed reversal of their
longstanding interpretation of section 7. In promulgating the current version of the section 7
regulations in 1986, the Services explained that “[a]ny possible effect, whether beneficial,
benign, adverse[,] or of an undetermined character,” triggers the section 7 consultation
requirement. 51 Fed. Reg. 19,926, 19,949 (June 3, 1986). The Services then stated that this
“threshold for formal consultation must be set sufficiently low to allow Federal agencies to satisfy
their duty to ‘insure’” that their actions do not jeopardize listed species or adversely modify
critical habitat as required under section 7. Id. (emphasis added). The Services’ fail to explain
how their new proposal could possibly achieve that fundamental objective.
Third, the Services do not have authority to limit consultations solely to effects within the
jurisdiction and authority of the federal action agency. See Native Ecosys. Council v. Dombeck,
304 F.3d 886, 902 (9th Cir. 2002) (agency must consider all areas that actually would be affected
by proposed action and may not arbitrarily restrict its selection of “action area” to be
considered). Rather, as discussed, section 7 requires federal agencies to initiate consultation on
any federal agency action over which they have discretionary involvement or control, and to
broadly examine all effects of that action. National Ass’n of Homebuilders, 551 U.S. at 668-69;
See also Conner, 848 F.2d at 1453-55 (having “incomplete information about post-leasing activities
does not excuse the failure to comply with the statutory requirement of a comprehensive biological
opinion using the best information available.”); accord Wild Fish Conservancy, 628 F.3d at 525.
49

29

 Conner, 848 F.2d at 1453-54, 1457-58. The Services’ proposal thus would put federal agencies
in the untenable position of either violating their section 7 obligations or demanding that the
Services engage in consultation beyond that contemplated by their ultra vires regulations.
Finally, as discussed in connection with the proposed changes to 50 C.F.R. § 402.14(h)
below, section 7 requires the Services to make independent biological determinations, based on
their scientific and technical expertise, regarding the effects of proposed federal agency actions.
See Cal. ex rel. Lockyer., 575 F.3d at 1018. However, the proposed revisions to 50 C.F.R.
§ 402.03 do not contain any requirement for federal agencies to obtain the Service’s written
concurrence in federal agency determinations of “no effect,” “beneficial effect,” “insignificant
effect,” or “immeasurable effect.” In sum, because the Services’ new “no consultation” criteria
thus constitute an unlawful, arbitrary, and wholly unexplained reversal of their longstanding
policy that is contrary to the ESA, they must be withdrawn. Fox, 556 U.S. at 515.
iii.

Weakening of Mitigation Requirements.

The Services propose to add language to the end of the formal consultation provisions in
50 C.F.R. § 402.14(g)(8) stating that “[m]easures included in the proposed action or a reasonable
and prudent alternative that are intended to avoid, minimize, or offset the effects of an action are
considered like other portions of the action and do not require any additional demonstration of
specific binding plans or a clear, definite commitment of resources.” 83 Fed. Reg. at 35,187,
35,192. The Services admit that these proposed changes are designed to repudiate the Ninth
Circuit’s decision in National Wildlife Federation, 524 F.3d 917, asserting that “[t]his judicially
created standard is not required by the Act or the existing regulations.” 83 Fed. Reg. at 35,187.
The Services claim that, rather, they must simply “assume that the [proposed federal] action will
be implemented as proposed,” and that they are not required “to independently evaluate whether
the proposed measures to avoid, minimize, or offset adverse effects will be implemented.” Id.
This proposed revision would contradict established case law, which clearly requires that
federal agency mitigation commitments be incorporated into the proposed action and be binding
and enforceable.50 This requirement is necessary to ensure that the federal action agency
satisfies its duties under section 7(a)(2) of the ESA. If the federal action agency does not ensure
that proposed mitigation measures included within the project description will be implemented,
then the Services’ jeopardy and adverse modification findings and accompanying “reasonable
and prudent alternatives” will be based on a project description that may or may not be accurate,
making section 7 essentially aspirational. Whether mitigation measures will in fact be
implemented also will affect the level of likely incidental take for purposes of the section 7
incidental take statement and its accompanying “reasonable and prudent measures.” 16 U.S.C.
§ 1536(b)(4). Finally, enforceability of mitigation is important to establish measurable triggers
for re-initiation of consultation and to ensure federal agency compliance with the terms and
conditions of incidental take statements and other provisions of biological opinions. See Center
for Biological Diversity v. Bureau of Land Mgmt., 698 F.3d 1101, 1115-16 (9th Cir. 2012).
50

See Center for Biological Diversity v. Bureau of Land Mgmt., 698 F.3d 1101, 1117 (9th Cir. 2012);
Rock Creek All. v. FWS, 663 F.3d 439, 444 (9th Cir. 2011); National Wildlife Fed’n, 524 F.3d at 935-36;
Selkirk Conservation All. v. Forsgren, 336 F.3d 944, 955-56 (9th Cir. 2003).

30

 iv.

Diminishing the Service’s Role in Consultation.

The Services also propose to create a new consultation procedure in 50 C.F.R.
§ 402.14(h) that would allow the Services to adopt, as their own biological opinions, all or part
of a federal action agency’s biological analyses that are submitted upon its initiation of formal
consultation. 83 Fed. Reg. at 35,187-88, 35,192. The Services state that the purpose of this
alternative process “is to bring the information and expertise of both the Federal agency and the
Service (and any applicant) into the resulting initiation package to facilitate a more efficient and
effective consultation process.” Id. at 35,188. These provisions are inappropriate and unlawful
because only the Services, and not the federal action agency, have the requisite biological
expertise, and the Services are statutorily required to perform the biological analysis of the
effects of the action. 16 U.S.C. § 1536(b)(3)(A). As the courts have repeatedly stated, “[t]he
purpose of the consultation procedure is to allow either [NMFS] or the FWS to determine
whether the federal action is likely to jeopardize the survival of a protected species or result in
the destruction of its critical habitat, and if so, to identify reasonable and prudent alternatives that
will avoid the action’s unfavorable impacts.” Turtle Island Restoration Network, 340 F.3d at
974 (emphasis added).51 Contrary to that purpose, the proposed revisions would enable the
Services merely to “rubber stamp” an action agency’s analysis as its own, without applying their
expertise and performing the required independent, science-based analysis.52
v.

Expansion of Programmatic Consultation and Addition of a New “Expedited
Consultation” Procedure.

“Programmatic Consultations.” The proposal also would add a new definition of
“programmatic consultation” to 50 C.F.R. § 402.02 to provide for “a consultation addressing an
agency’s multiple actions on a program, region or other basis,” including but not limited to:
(1) “[m]ultiple, similar frequently occurring or routine actions expected to be implemented in
particular geographic areas,” and (2) “[a] proposed program, plan, policy, or regulation providing
a framework for future actions.” 83 Fed. Reg. at 35,191-92; see also id. at 35,184-85
Although programmatic consultation may be appropriate in some cases, the proposed
changes would authorize such consultations in circumstances where it is not appropriate. For
example, when used for multiple different projects occurring in the same region, the site-specific
impacts of individual proposed federal agency actions on listed species and critical habitat would
not be separately addressed or adequately considered. But section 7 requires that consultations
on large-scale and programmatic actions may not ignore or minimize the site-specific and shortterm effects of these actions, see, e.g., Pacific Coast II, 426 F.3d at 1091-95; Pacific Coast I, 265
51

See also Center for Biological Diversity v. Environmental Prot. Agency, 847 F.3d 1075, 1084 (9th Cir.
2017) (“Consultation allows agencies to draw on the expertise of wildlife agencies.”); Karuk Tribe, 681
F.3d at 1020 (“[T]he purpose of consultation is to obtain the expert opinion of wildlife agencies . . . .”).
52
The proposal to allow the Services to adopt their own existing analysis in a permit issued pursuant to
ESA section 10(a) could satisfy the Services’ obligation under section 7, but only to the extent these prior
analyses are relevant to the scope of section 7 consultation. For example, where the analysis in a 10(a)
permit does not address the effect on a listed species, critical habitat, or listed plants that may be present
in a permit area, it must be supplemented during consultation to fully assess those impacts as required by
section 7.

31

 F.3d at 1035-38, and programmatic biological opinions are permissible only when the analysis is
“supplemented by later project-specific environmental analysis,” Gifford Pinchot Task Force,
378 F.3d at 1068.
The Services also inappropriately state that programmatic consultation can be used in an
informal consultation. It is difficult to conceive how a programmatic consultation analyzing the
effects of multiple projects over a large area or a single large project occurring on a broad
geographic scale could ever possibly meet the “not likely to adversely affect” requirement for
informal consultation. See 50 C.F.R. § 402.13(a). As with other proposals, this proposed change
ignores the significant direct, indirect, and cumulative effects of federal agency actions and the
Services’ and federal agencies’ statutory duties to comprehensively analyze those effects.53
“Expedited Consultations.” The proposed revisions further would add a new 50 C.F.R.
§ 402.14(l) authorizing “expedited consultations” as an “optional formal consultation process
that a Federal agency and the Service may enter into upon mutual agreement.” 83 Fed. Reg. at
35,192-93; see also id. at 35,188. According to the Services, the determination whether
expedited consultation is appropriate will be based on “the nature, size[,] and scope of the action
or its anticipated effects on listed species or critical habitat and other relevant factors.” Id. at
35,193.
This expedited consultation procedure has many of the same flaws as excessive reliance
on programmatic consultation. The proposed language affords the Services unduly broad
discretion and does not ensure that expedited consultations will sufficiently and comprehensively
evaluate the effects of federal actions, contrary to the requirements of section 7. The proposal
also is vague and open-ended in identifying what actions may be subject to expedited
consultation and offers no criteria or process to guide expedited consultation. The Services
instead broadly state that “[t]his consultation process is proposed to provide an efficient means to
complete formal consultation on projects ranging from those that have a minimal impact, to
those projects with a potentially broad range of effects that are known and predictable, but that
are unlikely to cause jeopardy or destruction or adverse modification.” 83 Fed. Reg. at 35,188
(emphasis added). The Services provide no justification for their assumption that such projects
are “unlikely to cause jeopardy or adverse modification” and also provide only one example of
an action that might be subject to expedited consultation—conservation actions designed
primarily to benefit the species—ignoring the fact that federal restoration and recovery actions
already are subject to a streamlined consultation process.54

The problems with this proposal are compounded by the Services’ statement that federal agencies and
applicants can “propose measures to avoid, minimize, and/or offset effects to listed species and/or
designated critical habitat as part of their proposed action” on a broad, programmatic scale. 83 Fed. Reg.
at 35,184-85. But as discussed above, under the proposed amendments to 50 C.F.R. § 402.14(g)(8), these
proposals would not need to be enforceable, thereby exponentially increasing the risks to listed species
and critical habitat if such measures are not implemented and cannot be enforced on a programmatic
level.
54
See FWS, STREAMLINED CONSULTATION GUIDANCE FOR RESTORATION/RECOVERY PROJECTS (Nov.
16, 2016), available at https://www.fws.gov/endangered/esalibrary/pdf/Final%20RRP%20Guidance%20w%20memo%2011012016.pdf.
53

32

 Importantly, the Services admit that “expedited consultations are a new process and
likely [will] involve proposed actions that would otherwise go through the regular formal
consultation process and require an incidental take statement.” 83 Fed. Reg. at 35,188
(emphasis added). In other words, expedited consultations would, under the Services’ new
proposal, be available for actions that are “likely to adversely affect” listed species or designated
critical habitat and reasonably likely to result in incidental take. See 50 C.F.R. §§ 402.13(a),
402.14(a); 80 Fed. Reg. 26,832 (May 11, 2015). Thus, the Services’ statement that actions
subject to the new expedited consultation procedure will be “unlikely to cause jeopardy or
destruction or adverse modification” is plainly insupportable and contradicted by their own
statements. 83 Fed. Reg. at 35,188. Moreover, the Services’ statements, and the vague criteria
for when expedited consultation is appropriate, raise the suspicion that expedited consultation
will become the norm rather than the exception, undermining the rigor and completeness of the
normal consultation process.
In sum, the expedited consultation procedure allows for an end-run around some of the
most important and fundamental requirements of the ESA: to comprehensively analyze and
mitigate the effects of federal agency actions on listed species and their critical habitat. And
whether a particular action is subject to the expedited consultation procedure will be based solely
on an arbitrary determination by the Services and the federal action agency following no
ascertainable criteria, without any public review and oversight. The unlawful and arbitrary
proposal should be abandoned.
vi.

Exemption from the Requirement to Reinitiate Consultation on Federal
Land and Resource Management Plans.

The Services propose to add new 50 C.F.R. § 402.16(b), eliminating the requirement to
reinitiate consultation on an approved Bureau of Land Management (“BLM”) or U.S. Forest
Service (“Forest Service”) land and resource management plan (“management plan”) upon the
listing of a new species or designation of new critical habitat in the plan area, “provided that any
authorized actions that may affect the newly listed species or designated critical habitat will be
addressed through a separate action-specific consultation.” 83 Fed. Reg. at 35,193; see also id.
at 35,188-89. The Services claim that “[r]equiring reinitiation on these completed plans based on
newly listed species or critical habitat often results in impractical and disruptive burdens,” and
“results in little benefit to the newly listed species or critical habitat . . . .” Id. at 35,189.
This proposed change would drive a large hole in existing reinitiation requirements,
directly contrary to the case law rejecting this very concept. In Pacific Rivers Council, 30 F.3d
at 1053, the Ninth Circuit expressly held that management plans “have an ongoing and longlasting effect even after adoption . . . and represent ongoing agency action.” The Court expressly
rejected the Forest Service’s argument, identical to the Services’ contention in support of the
proposed rule change here, that it was not required to reinitiate consultation on a management
plan when a new species was listed in the plan area. Id. at 1055. Similarly, the Forest Service
was required to reinitiate consultation on a management plan where the FWS subsequently had
revised a previous critical habitat designation to include National Forest land. Cottonwood
Envtl. Law Ctr., 789 F.3d at 1086-88 (“[R]equiring reinitiation in these circumstances comports
with the ESA’s statutory command that agencies consult to ensure the ‘continued existence’ of
33

 listed species.” (emphasis in original)). The court held that the “new [critical habitat] protections
triggered new obligations” and the Forest Service could not “evade its obligations by relying on
an analysis it completed before the protections were put in place.” Id. at 1088.
Moreover, as previously discussed, other cases likewise make clear that, in general,
section 7 consultation is required for any action over which the federal agency retains
discretionary involvement or control to protect listed species and habitat. Turtle Island
Restoration Network, 340 F.3d at 974; see National Wildlife Fed’n, 524 F.3d at 926-29
(obligation to consider effects of ongoing operations of dam, where Congress specified broad
goals, but agency retained significant discretion as to how to achieve those goals). The Services
do not and cannot contend that the BLM and the Forest Service do not retain sufficient
discretionary involvement, authority, or control over federal management plans to institute
additional protections for species and habitat upon a new listing or critical habitat designation.
Consequently, the Services’ explanation of the rationale for this proposed change is contrary to
law.
The Services also claim that reinitiation of consultation on federal management plans
“does little to further” the overall goals of the ESA, but fail to explain why or provide any detail.
In addition, the Services erroneously allege—without any justification—that management plans
have “no immediate on-the-ground effects” and that consultation need only be conducted on
individual federal agency actions proceeding under these plans. 83 Fed. Reg. at 35,189. This
assertion is directly contrary to case law and common sense and ignores the widespread and
cumulative effects of these broad-based federal agency actions. Management plans contain
substantive criteria governing the nature and extent of permissible land uses and impacts to
species and habitat on a large scale, on a programmatic and ongoing basis. See Pacific Rivers
Council, 30 F.3d at 1051-53, 1055 (management plans “have an ongoing and long-lasting effect
even after adoption” and set forth criteria for timber harvesting, grazing, road building, and other
activities on federal lands); Forest Guardians v. Forsgren, 478 F.3d 1149, 1158-59 (10th Cir.
2007) (approving of the statement in Pacific Rivers Council that management plans “may have
‘an ongoing and long-lasting effect’ on the forest”). Failing to revisit them when new imperiled
species and their habitat are identified would render those plans outdated and risk species’
recovery or survival.
In sum, this proposal fails to meet the Services’ or federal action agencies’ section 7
obligations and is also arbitrary and capricious because the Services have failed to offer any
reasonable justification for the exemption.
C. 4(d) Rule, 83 Fed. Reg. 35,174 (July 25, 2018)
Docket ID No FWS-HQ-ES-2018-0007
The 4(d) Rule proposes to remove, going forward, the “blanket” extension to threatened
species of all protections afforded to endangered plants and animals under the ESA. See 16
U.S.C. § 1538(a)(1)-(2); 83 Fed. Reg. at 35,175, 35,177-78. The proposed rule abandons FWS’s
longstanding policy and practice of providing default protections to all newly listed threatened
species, subject only to exceptions carved out by special rule as necessary on a species-by-

34

 species basis.55 Instead, FWS intends to issue species-specific rules only as it deems necessary
to protect threatened species, and specifically preserves its discretion to delay promulgation of
those protections for an indefinite period, “at any time after the final listing or reclassification
determination.” Id. at 35,175. The proposal is a dramatic departure from current FWS practice
and contrary to the ESA’s conservation purpose and precautionary policy approach because it
inevitably will leave threatened species without protections necessary to promote recovery and
survival, instead increasing the threat that they will become endangered. FWS provide no sound
reason for this abrupt policy change, which would strain already overburdened agency resources
and lead to litigation challenges.
First, the proposal contravenes the ESA’s policy of “institutionalized caution” because it
inevitably will result in FWS neglecting to provide adequate protections to threatened species.
Hill, 437 U.S. at 178, 194. As the Supreme Court has emphasized, the ESA’s core purpose is “to
halt and reverse the trend toward species extinction, whatever the cost.” Id. at 184. Given the
agency’s history of listing backlogs,56 and its increasingly limited budget,57 FWS does not have
the capacity or resources to promulgate species-specific 4(d) rules at the outset for individual
threatened species at the level that would be necessary to match the protection that is currently in
place with the blanket 4(d) rule.58 Instead, it is highly likely that the FWS will rarely promulgate
special rules extending the take prohibition or other protections to newly listed or reclassified
threatened species. And even where species-specific rules are adopted, as FWS appears to
anticipate, there will likely be a significant delay during which no protections would be in place.
83 Fed. Reg. at 35,175.
Without interim protections, newly listed or reclassified threatened species would face
significant risk of harm, and parties that put threatened species in danger would be free from
consequences and undeterred. Either circumstance thus would upend the precautionary approach
enshrined in the ESA, which the FWS has implemented for decades by instituting default
protections for threatened species to keep them from sliding toward endangerment and extinction
55

See 50 C.F.R. §§ 17.31, 17.71.
See GAO Listing Deadline Litigation Report, supra note 27, at 5-18 (reporting that 141 lawsuits
involving 1,441 species were filed from fiscal year 2005 through 2015 alleging that FWS and NMFS
failed to take actions within deadlines mandated by ESA section 4, most of which involved missed
deadlines to act on petitions to list species); Benjamin Jesup, Endless War or End This War? The History
of Deadline Litigation Under Section 4 of the Endangered Species Act and the Multi-District Litigation
Settlements, 14 VT. J. ENVTL. L. 327, 348-51 (2013).
57
See President Proposes $1.2 Billion FY 2019 Budget for U.S. Fish and Wildlife Service, FWS press
release, Feb. 12, 2018, available at https://www.fws.gov/news/ShowNews.cfm?ref=president-proposes$1.2-billion-fy-2019-budget-for--u.s.-fish-and-w&_ID=36224. Compare FY 2018 INTERIOR BUDGET IN
BRIEF, BUREAU HIGHLIGHTS, FWS, available at
https://edit.doi.gov/sites/doi.gov/files/uploads/fy2018_bib_bh059.pdf, with FY 2019 INTERIOR BUDGET IN
BRIEF, BUREAU HIGHLIGHTS, FWS, available at
https://edit.doi.gov/sites/doi.gov/files/uploads/fy2019_bib_bh059.pdf (proposed fiscal year 2019 budget
request of $1.2 Billion for FWS was nearly twenty percent less than fiscal year 2017 operating budget of
$1.5 Billion).
58
Indeed, as discussed supra in Section II.A.i., the Services’ proposed introduction of economic impact
analysis into species listing decisions, if adopted and finalized, would further burden limited FWS
resources.
56

35

 while details of specially tailored rules are worked out. See Hill, 437 U.S. at 178, 194; Sweet
Home, 515 U.S. at 698-99. Against this clear statutory purpose, FWS cannot fall back on its
unsupported claim that the proposed change will provide “meaning to the statutory distinction
between ‘endangered species’ and ‘threatened species.’” 83 Fed. Reg. at 35,175. Indeed, the
D.C. Circuit already has rejected arguments that the blanket rule impermissibly blurs the
statutory distinction between endangered and threated species. See Sweet Home Chapter of
Cmtys. for a Greater Oregon v. Babbitt, 1 F.3d 1, 6-7 (D.C. Cir. 1993).
Second, the 4(d) Rule is arbitrary and capricious because FWS fails to analyze important
aspects of the problem and provides no reasoned justification for its proposal. As an initial
matter, the 4(d) Rule lacks any acknowledgement or discussion of FWS resource constraints or
the increased workload and exacerbated delay that would be associated with conducting speciesby-species assessments and promulgating special rules necessary to adequately protect all newly
listed threatened animals or plants in the absence of the blanket take prohibition. The agency has
thus “entirely failed to consider an important aspect of the problem”—one that will in all
likelihood undermine the ESA’s mission and result in harm to imperiled species. Motor Vehicle
Mfrs., 463 U.S. at 43. And where FWS declines to promulgate or delays special rules to protect
newly listed threatened species, the agency inevitably will face lawsuits challenging the inaction
or delay, further burdening agency resources.
For the same reason, FWS cannot resort to its stated intent to align FWS practices with
that of NMFS, which does not by default extend endangered species protections to threatened
species but instead only promulgates species-specific rules for threatened species. 83 Fed. Reg.
at 35,175. The agency fails to appreciate or even acknowledge that there are many reasons why
FWS should employ a different rule than its sister agency. NMFS has jurisdiction over, and
manages fewer than, one hundred marine species listed as threatened or endangered in the U.S.59
By contrast, FWS manages more than 1,660 ESA-listed species in the U.S.60 And yet the
resources available to NMFS for promulgating and implementing special rules for each
threatened species vastly exceed those of FWS. For example, for the fiscal year 2017, NMFS’s
annual budget for managing 159 U.S. and foreign ESA-listed species was $182 million,
compared to FWS’s budget of $234 million to manage more than 2,100 U.S. and foreign ESAlisted species.61 While NMFS may have the capacity and resources to promulgate speciesspecific rules at the outset, FWS indisputably does not.
Nor does FWS provide any reasoned explanation or justification for abandoning the
section 4(d) blanket protections with special rules carving out exceptions, a policy FWS itself
59

See Endangered Species Conservation, NOAA FISHERIES
https://www.fisheries.noaa.gov/topic/endangered-species-conservation (NMFS has jurisdiction over a
total of 163 ESA-listed species, 66 of which are foreign species) (last visited Sept. 23, 2018).
60
Environmental Conservation Online System, Listed Species Summary, FWS,
https://ecos.fws.gov/ecp0/reports/box-score-report (FWS has jurisdiction over a total of 2,344 ESA-listed
species, 683 of which are foreign species) (last visited Sept. 23, 2018).
61
See, e.g., Jason Huffman, U.S. Lawmaker Rekindles Talk of Moving NOAA Endangered Species Power
to Interior, UNDERCURRENT NEWS: SEAFOOD BUSINESS NEWS (Apr. 13, 2018), available at
https://www.undercurrentnews.com/2018/04/13/us-lawmaker-rekindles-talk-of-moving-noaa-endangeredspecies-power-to-interior/.

36

 acknowledges not only is reasonable, but has also been effective and successful. See 83 Fed.
Reg. at 35,175. Indeed, the 4(d) Rule notes FWS’s years of experience developing speciesspecific special rules under its current policy and the many benefits provided by this flexible yet
protective approach. Id.62 The agency perversely attempts to invoke the benefits of speciesspecific rules to justify its wholesale elimination of the blanket take prohibition. Id. But those
benefits simply have no bearing on the wisdom of abolishing protections for all newly listed
species while those species-specific rules are being developed, nor do they provide a “good
reason” for upending forty years of agency policy and practice. Fox, 556 U.S. at 515. The
agency fails to explain how its proposal comports the ESA’s mandates and purpose and
adequately protects threatened species before species-specific rules are developed. Id.
For all the above reasons, FWS should withdraw the proposed 4(d) Rule. Should the
agency proceed with this illegal and ill-advised revision, however, any final rule must include a
mandatory deadline, no later than 180 days following any final listing or reclassification for
FWS to promulgate all necessary protections in a species-specific special rule. Without a
mandatory timeframe, FWS would have unfettered discretion to promulgate species-specific
rules “at any time after the final listing or reclassification determination,” 83 Fed. Reg. at 35,175,
again departing from the ESA’s purpose and clear directive that FWS use its resources and
authority to conserve threatened species, see 16 U.S.C. §§ 1531(b), (c), 1533(d).63
III.

The Proposed Rules Must Be Analyzed Under NEPA.

The Services have a duty under NEPA to analyze the significant effects of the Proposed
Rules, and to circulate the analysis for public review and comment. But instead of performing
the required analysis, the Services merely invite public comment on whether NEPA applies. See
83 Fed. Reg. at 35,177, 35,191, 35,200. As discussed below, the Proposed Rules constitute a
major federal action significantly affecting the quality of the human environment and they are
not subject to a categorical exclusion. As such, the Services were required to request comments
on the appropriate scope of environmental review and then prepare, and notice for public
comment, an Environmental Impact Statement (“EIS”) analyzing the Proposed Rules’ potential
impacts before, or in tandem with, their publication. The Proposed Rules thus violate NEPA and
must be withdrawn. At the very least, the Services must suspend rulemaking for the Proposed
Rules, request NEPA scoping comments, and prepare an EIS.
A. The Services Are Required to Prepare an EIS for the Proposed Rules.
The Agencies have failed to comply with their statutory duty to publish an EIS. NEPA is
the “basic national charter for protection of the environment,” 40 C.F.R. § 1500.1(a), enacted in
recognition of “the profound impact of man’s activity on the interrelations of all components of
the natural environment,” 42 U.S.C. § 4331(a). The fundamental purposes of the statute are to
ensure that “environmental information is available to public officials and citizens before
62

See FWS Region 6, ENDANGERED SPECIES ACT SPECIAL RULES, QUESTIONS AND ANSWERS (Feb.
2014) (describing value of developing species-specific rules), available at
https://www.fws.gov/mountain-prairie/factsheets/ESA%20SpecialRules%20Factsheet_020714.pdf.
63
See also 16 U.S.C. § 1533(b)(3)(A)-(B) (timeframes for FWS action on ESA listing petitions).

37

 decisions are made and before actions are taken,” and that “public officials make decisions that
are based on understanding of environmental consequences, and take actions that protect, restore,
and enhance the environment.” Id. § 1500.1(b)-(c). NEPA thus requires agencies to take a “hard
look” at the environmental consequences of their actions before deciding whether and how to
proceed. Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 37 (D.C. Cir. 2015). Agencies
must prepare an EIS for “major Federal actions significantly affecting the quality of the human
environment,” 42 U.S.C. § 4332(2)(C), including where “substantial questions are raised as to
whether a project may cause significant environmental impacts,” Friends of the Wild Swan v.
Weber, 767 F.3d 936, 946 (9th Cir. 2014).
The Services plainly violated their NEPA obligations here. As an initial matter, it is the
Services’ obligation to perform the required assessment of whether an EIS is required, and they
cannot shirk that duty or delegate it to the public by requesting that stakeholders commenting on
the Proposed Rules explain why they do, or do not, require an EIS. In any event, there can be no
doubt that the Proposed Rules constitute a “major federal action” requiring the preparation of an
EIS. The Council on Environmental Quality’s NEPA regulations provide, and numerous courts
have confirmed,64 that a “major federal action” includes “new or revised agency rules [and]
regulations[.]” 40 C.F.R. § 1508.18(a).
And it is likewise clear that the Proposed Rules will significantly affect the environment.
NEPA regulations require that both the context and the intensity of an action be considered in
determining whether an action may significantly affect the environment, including “[t]he degree
to which the action may adversely affect an endangered or threatened species or its habitat that
has been determined to be critical under the Endangered Species Act of 1973.” 40 C.F.R.
§ 1508.27. The presence of just “one of these factors may be sufficient to require the preparation
of an EIS in appropriate circumstances.” Ocean Advocates v. U.S. Army Corps of Eng’rs, 402
F.3d 846, 865 (9th Cir. 2005).
As discussed above, the Proposed Rules, if adopted, are likely to cause numerous and
profound harms to imperiled species. For example, the Proposed Rules would limit the
designation of critical habitat; result in fewer listings of—and significantly less protection for—
threatened species; increase the likelihood that species will be delisted; limit the scope of section
7 consultations; and limit the circumstances under which the Services impose measures to reduce
the impacts of federal actions on listed species, among other adverse impacts on imperiled
species and their habitat. Thus, the Services thus must prepare an EIS for the Proposed Rules.
What is more, the Services should already have done so. The NEPA regulations make
clear that “[a]gencies shall integrate the NEPA process with other planning at the earliest
possible time to insure [sic] that planning and decisions reflect environmental values, to avoid
delays later in the process, and to head off potential conflicts.” 40 C.F.R § 1501.2 (emphasis
added). As the Supreme Court has explained, an EIS “is the outward sign that environmental
See, e.g., California ex rel. Lockyer v. U.S. Dep’t of Agric., 575 F.3d 999, 1012-18 (9th Cir. 2009)
(agency repeal of roadless rule and replacement with new regulations required NEPA review); Humane
Soc’y of the U.S. v. Johanns, 520 F. Supp. 2d 8, 37-38 (D.D.C. 2007) (vacating federal rule requiring
NEPA review); Natural Res. Def. Council v. Duvall, 777 F. Supp. 1533, 1536, 1542 (E.D. Cal. 1991)
(setting aside federal rule due to failure to perform EIS).
64

38

 values and consequences have been considered during the planning stage of agency actions. If
environmental concerns are not interwoven into the fabric of agency planning, the ‘actionforcing’ characteristics of [NEPA] would be lost.” Andrus v. Sierra Club, 442 U.S. 347, 350–51
(1979). Thus federal agencies must have evaluated the environmental consequences of an action
when they propose to undertake a qualifying major federal action, Kleppe v. Sierra Club, 427
U.S. 390, 406 & n.15 (1976), and certainly “prior to commitment to any actions which might
affect the quality of the human environment,” Sierra Club v. Peterson, 717 F.2d 1409, 1415
(D.C. Cir. 1983) (emphasis in original); see also 40 C.F.R. § 1502.5 (EIS must be prepared “as
close as possible to the time the agency is developing . . . a proposal . . . so that preparation can
be completed in time for the final statement to be included in any recommendation or report on
the proposal”); 1508.23 (defining “proposal” stage at which agency “is actively preparing to
make a decision on one or more alternative means of accomplishing [its] goal”).65 “If any
‘significant’ environmental impacts might result from the proposed agency action then an EIS
must be prepared before the action is taken.” Sierra Club, 717 F.2d at 1415.
Here, the Services should have followed NEPA’s requirements to prepare a draft EIS for
the Proposed Rules well before—or at the latest, at the same time as—publishing the Proposed
Rules on July 25, 2018, to weave thorough understanding of environmental consequences into
the planning process. By failing to publish an EIS before the close of the comment period, the
Services have unlawfully foreclosed the opportunity for the public to understand and provide
important feedback on the Proposed Rules’ environmental impacts. Because the Services
published the Proposed Rules in violation of NEPA, they must be withdrawn. At the very least,
the Services must suspend rulemaking on the Proposed Rules, request comments on the
appropriate scope of environmental review under NEPA, and prepare and circulate a
comprehensive draft EIS for comment to afford the public a meaningful opportunity to
participate in the Services’ development of any final rules.
B. The Proposed Rules Are Not Eligible for A Categorical NEPA Exclusion.
The Proposed Rules are not eligible for a categorical exclusion under NEPA. Agencies
may invoke a categorical exclusion only for “a category of actions which do not individually or
cumulatively have a significant effect on the human environment and which have been found to
have no such effect in procedures adopted by a Federal agency in implementation of [NEPA]
regulations[.]” 40 C.F.R. § 1508.4. No such circumstances are present here. FWS 66 and
NMFS67 have established categorical exclusions for policies and regulations of an administrative
or procedural nature, none of which apply to the substantive, significant changes reflected in the
65

See also Kleppe v. Sierra Club, 427 U.S. 390, 405-06 (1976) (holding that, under § 102(2)(C) of
NEPA, agency must have a final statement ready when it makes a recommendation or report on a
proposal for federal action); Sierra Club, 803 F.3d at 37 (agencies must take a “hard look” at
environmental consequences of their actions).
66
U.S. Department of Interior, EXISTING CATEGORICAL EXCLUSIONS, at 6-9 (hereinafter “DOI
Exclusions”), available at
https://www.doi.gov/sites/doi.gov/files/uploads/doi_and_bureau_categorical_exclusions_feb2018.pdf.
67
See NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION NATIONAL ENVIRONMENTAL POLICY
ACT HANDBOOK, Ver. 2.3 (May 2009), at. 22-29 (hereinafter “NOAA NEPA Handbook”), available at
http://www.nepa.noaa.gov/NEPA_HANDBOOK.pdf.

39

 Proposed Rules. Indeed, the Ninth Circuit rejected a similar attempt to evade NEPA
requirements in the context of National Forest planning, finding that replacement of substantive
protections with a less-protective regulatory regime—as the Services are currently attempting to
do with the Proposed Rules—qualifies as a major federal action that is not exempt from NEPA
review. California ex rel. Lockyer, 575 F.3d at 1013-15.
Even if the Proposed Rules could otherwise qualify for coverage under the Services’
categorical exclusions (they do not), they would nonetheless present “extraordinary
circumstances in which a normally excluded action may have a significant environmental
effect,” and thus be subject to NEPA’s full requirements in any event. 40 C.F.R. § 1508.4. To
that end, the Services exempt from categorical exclusions any actions that, among other things:
may significantly impact species listed, or proposed to be listed, under the ESA; have uncertain
or potentially significant environmental effects or have unique or unknown environmental risks;
violate a federal, state, local, or tribal law imposed for protection of the environment; or may
have controversial environmental effects. See NOAA NEPA Handbook at 22; DOI Exclusions at
2-3. While only one of these factors need apply to the Proposed Rules to remove them from
consideration for a categorical exclusion, plainly several of them do, as the Proposed Rules
would have significant negative impacts on, among other things, newly listed threatened species
and on all listed species’ critical habitat. Additionally, the Proposed Rules violate the ESA itself
in numerous ways, as detailed above. Thus, no categorical exclusion may be applied to the
Proposed Rules, and NEPA analysis is required.
For all the above reasons, the Proposed Rules violate NEPA and must be withdrawn. At
the very least, the Services must suspend rulemaking and follow all NEPA requirements,
including noticing and seeking public comment on the proper scope of environmental review,
and preparing and circulating a draft EIS for public comment.

40

 CONCLUSION
The Services’ proposed Rules each chip away at the ESA’s most important species
protections, and together upend the ESA’s decades-long policy of “institutionalized caution” and
risk significant harm to the precious species the Act serves to protect. The Listing Rule takes
aim at the Services’ foundational species-listing and critical habitat designation decisions,
infecting the Services’ decisions with expressly irrelevant economic impact information, and
limiting the extent to which the Services can consider and respond to the most pressing threats to
species extinction, like climate change. The Interagency Consultation Rule renders the Act’s
core agency consultation program a sham, decreasing its frequency and diminishing its value by
gutting its key definitions and substantive requirements. And the 4(d) Rule, with no sound
explanation, altogether eliminates the take prohibition for newly listed threatened species, risking
their existence while the Services work through their ever-present backlog. Given the Services’
disregard for these harms and failure to evaluate the Proposed Rules’ environmental damage,
their promulgation would at once violate the ESA, the Administrative Procedure Act, and
NEPA. As entities uniquely qualified to evaluate efforts to protect our nation’s natural
resources, the States urge the Services to immediately abandon all three unlawful, arbitrary, and
harmful Proposed Rules.

FOR THE COMMONWEALTH
OF MASSACHUSETTS

FOR THE STATE OF CALIFORNIA

MAURA HEALEY
Attorney General

XAVIER BECERRA
Attorney General

_________________________
MATTHEW IRELAND
TURNER SMITH
AMANDA MOREJON
Assistant Attorneys General
Office of the Attorney General
Environmental Protection Division
One Ashburton Place, 18th Floor
Boston, MA 02108
(617) 727-2200
matthew.ireland@state.ma.us

________________________________
GEORGE TORGUN
ERIN GANAHL
TARA MUELLER
Deputy Attorneys General
California Department of Justice
1515 Clay Street, 20th Floor
P.O. Box 70550
Oakland, CA 94612-0550
(510) 879-1002
george.torgun@doj.ca.gov

41

 FOR THE STATE OF MARYLAND

FOR THE STATE OF NEW YORK

BRIAN E. FROSH
Attorney General

BARBARA D. UNDERWOOD
Attorney General

_______________________________
JOHN B. HOWARD, JR.
JOSHUA M. SEGAL
Assistant Attorneys General
Office of the Attorney General
200 Saint Paul Place
Baltimore, MD 21202
(410) 576-6300

_______________________________
LAURA MIRMAN-HESLIN
Assistant Attorney General
Environmental Protection Bureau
New York State Office of the
Attorney General
28 Liberty Street
New York, NY 10005
(212) 416-6091

FOR THE STATE OF OREGON

FOR THE COMMONWEALTH OF
PENNSYLVANIA

ELLEN F. ROSENBLUM
Attorney General

_____________________________
PAUL GARRAHAN
Attorney-in-Charge
Natural Resources Section
STEVE NOVICK
Special Assistant Attorney General
Oregon Department of Justice
1162 Court Street, N.E.
Salem, OR 97301
(503) 947-4520

JOSH SHAPIRO
Attorney General

_____________________________
MICHAEL J. FISHER
Chief Deputy Attorney General
AIMEE D. THOMSON
Deputy Attorney General
Office of Attorney General
Strawberry Square
Harrisburg, PA 17120
(215) 560-2171

42

 FOR THE STATE OF RHODE ISLAND

FOR THE STATE OF VERMONT

PETER F. KILMARTIN
Attorney General

THOMAS J. DONOVAN, JR.
Attorney General

_______________________________
GREGORY S. SCHULTZ
Special Assistant Attorney General
Department of the Attorney General
150 South Main Street
Providence, RI 02903
(401) 274-4400

_________________________________
RYAN P. KANE
Assistant Attorney General
Office of the Attorney General
Environmental Protection Division
109 State Street
Montpelier, VT 05609
(802) 828-2153

FOR THE STATE OF WASHINGTON

FOR THE DISTRICT OF COLUMBIA

ROBERT W. FERGUSON
Attorney General

KARL RACINE
Attorney General of the District of Columbia

________________________________
WILLIAM R. SHERMAN
Assistant Attorney General
AURORA R. JANKE
Special Assistant Attorney General
Counsel for Environmental Protection
800 5th Avenue Suite 2000, TB-14
Seattle, WA 98104
(206) 442-4485

_______________________________
SARAH KOGEL-SMUCKER
Special Assistant Attorney General
Office of the Attorney General for the District
of Columbia
441 Fourth Street N.W.,
Suite 630 South
Washington, D.C. 20001
(202) 724-9727

43