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Source: Washington State News

New rules significantly undermine critical protections for species at risk of extinction

OLYMPIA — Attorney General Bob Ferguson filed a multistate lawsuit today challenging Trump Administration rules that significantly undermine the Endangered Species Act, a cornerstone of national conservation law critical to Washington’s effort to save species such as the southern resident orca. Nearly every species afforded protections under the Endangered Species Act have been saved from extinction.

Washington is home to 49 species listed under the federal Endangered Species Act, including southern resident killer whales, pygmy rabbits, green sea turtles and several salmon species such as chinook, chum and sockeye. The new rules increase the likelihood that these species will lose their federal protections before they have fully recovered.

Three species in Washington — western pond turtles, wolverines and Island Marble butterflies — are candidate species, meaning they are under consideration for threatened or endangered status. These species are more likely to be denied federal protection under the new rules.

“For more than four decades, the Endangered Species Act has been a worldwide model of conservation law,” Ferguson said. “This administration has shown over and over that it will stop at nothing to slash regulations at the whim of industry interests, even if it means putting our shared ecosystem at risk. Every time my office has brought the Trump Administration to court over environmental rollbacks, we’ve won. I expect this lawsuit will be no different.”

 “We are already witnessing mass extinction of species across the globe, against the backdrop of a changing climate, rising sea levels and a rapidly warming planet. It is abhorrent that the Trump administration could single-handedly wipe out endangered animals and plants for future generations by gutting the Endangered Species Act, which has been a critically important tool for more than 40 years,” Gov. Jay Inslee said.  “I fully support Attorney General Ferguson’s actions and look forward to defeating the administration again in court to protect Washington’s animals, plants and their habitats.”

The Endangered Species Act (ESA) requires the federal government to create lists of endangered species (species at risk of extinction) and threatened species (species at risk of becoming endangered).

The federal government must then designate “critical habitat” — protected habitat that is essential to the conservation of endangered or threatened species. Once the species has fully recovered, the federal government can remove, or “delist,” the species from the list of federally protected species.

The ESA prohibits activity that might harm or kill endangered species. In addition to other protections, all federal agencies must consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service to ensure they don’t take any action that might jeopardize an endangered or threatened species or their habitat.

These federal protections are essential to Washington’s efforts to save killer whales. As of August 2019, only 73 southern resident killer whales remain, a 30-year low.

On Aug. 27, the U.S. Fish and Wildlife Service and National Marine Fisheries Service published a suite of three rules that illegally and arbitrarily weaken essential protections in the Endangered Species Act. Two of the rules will go into effect on Sept. 26, 2019. One will go into effect Oct. 28, 2019.

Impacts on currently listed species

Any endangered species that may recover enough to be down-listed to threatened status would lose automatic, blanket protections prohibiting actions that harm them. The rules unlawfully eliminate a blanket protection that automatically bars activity that harms or kills species listed as threatened in the future — including current endangered species or species added to the list after the rules go into effect.

The rules make it easier for federal agencies to take actions that adversely impact listed species. Under the ESA, if an agency’s action — a construction project, for example — could potentially impact a species’ habitat, the agency must consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service to analyze and mitigate potential harm to protected species and their habitat.

The new rules arbitrarily limit when an agency action that destroys critical habitat can be deemed harmful. It also limits the situations in which the federal government is required to adopt alternative actions or otherwise minimize harm to listed species. This could impact any species listed under the ESA.

The rules eliminate species recovery as a key basis for removing a species from the list. As a result, the new rules increase the likelihood that species will be delisted and lose their federal protections before they’ve fully recovered.

The rules make it harder to designate areas as “critical habitat” for species, especially habitat that becomes even more vital to a species’ recovery as climate change forces wildlife to migrate.

Impacts on species that may need future protections

Less than 20 wolverines live in the wild in Washington. Wolverines, a candidate species, are currently under consideration for federal protection. Under the new rules, the federal government can more easily deny ESA protections for candidate species such as wolverines.

The rules make it harder to obtain protections for wildlife at risk of becoming endangered by limiting the circumstances under which species can be listed as threatened. They also unlawfully eliminate a blanket protection that automatically bars activity that harms or kills species listed as threatened in the future.

Wolverines, native to arctic and mountain climates, are particularly susceptible to climate change. Given this and their low population in Washington, it is more likely they will need to find new habitat to survive and recover. The new rules make it more difficult to protect critical habitat that species, like wolverines, may depend on in the future due to climate change and other factors, like habitat degradation.

The rules remove a prohibition on economic assessments when an agency makes the scientific determination whether a species is threatened or endangered. In other words, the new regulations allow economic information to influence the agency’s listing decision. For example, if listing a species would limit a strip mine operation, the new rules may allow the government to consider that in its decision. This violates the Endangered Species Act itself, which mandates that listing decisions be based only on science, not economics.

Legal claims

Each of the new rules run counter to the express purpose of the Endangered Species Act to conserve endangered and threatened species.

The Administrative Procedure Act and the National Environmental Policy Act require the federal government to provide reasoning and disclose environmental impacts before issuing rules that weaken the Endangered Species Act. The federal government provided no reasoned basis for any of the new rules and failed to provide an environmental impact statement, even though the rules have significant environmental impacts.

The states’ lawsuit asks the court to block the rules and find them illegal under the Endangered Species Act, the Administrative Procedure Act and the National Environmental Policy Act. Ferguson’s office has won several lawsuits against the federal government based on the Administrative Procedure Act.

Endangered Species Act successes

The U.S. Supreme Court has called the ESA the “most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” The ESA protects more than 1,600 plant and animal species and millions of acres of critical habitat nationwide. Since the law’s passage, 99 percent of species afforded its protections have been saved from extinction, including the California condor, the grizzly bear, the peregrine falcon, the grey whale and the bald eagle.

In Washington, for example, federal Endangered Species Act protections helped the pygmy rabbit survive, considered nearly extinct by 2001. Thousands of pygmy rabbits were reintroduced to the wild, and the population continues to grow.

Washington filed the lawsuit in the U.S. District Court for the Northern District of California, joined by Colorado, Connecticut, Illinois, Michigan, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, the District of Columbia and the City of New York. California, Massachusetts and Maryland are leading the coalition.

Counsel for Environmental Protection Chief Bill Sherman and Special Assistant Attorney General Aurora Janke are leading the case for Washington.

Ferguson’s lawsuits against the Trump Administration

Ferguson has now filed 50 lawsuits against the Trump Administration and has not lost a case. Of these 50 lawsuits:

  • 26 — more than half — involve environmental protections (record: 13-0);
  • 11 relate to immigration (record: 4-0);
  • 7 relate to health care access (record: 2-0);
  • 2 relate to consumer protections for student borrowers (record: 1-0);
  • 1 relates to 3D-printed guns (record: 1-0);
  • 1 relates to the military transgender ban; and
  • 1 relates to net neutrality.

Ferguson has 21 legal victories against the Trump Administration. Thirteen of the 21 victories are final and cannot be appealed, which means they cannot be overturned.

After more than two years of litigation, no court to rule on the merits of the Attorney General’s arguments in a lawsuit against the Trump Administration has ruled against the office.

The Attorney General’s affirmative litigation divisions (Civil Rights Division, Consumer Protection Division, Counsel for Environmental Protection, and the affirmative section of the Complex Litigation Division) led every case in which Washington state is the lead plaintiff, and the majority of cases in which Washington joined multistate litigation led by other states. Multistate efforts led by other states require significantly fewer resources from the Washington Attorney General’s Office. Affirmative litigation divisions have not received any taxpayer funding since January 2017. They are fully funded through recoveries in successful civil enforcement cases. Consequently, the impact to taxpayers from this federal litigation is negligible.

The Attorney General’s Office maintains an up-to-date list of all its federal litigation cases, including case summaries, case status and lead state, on its website. That list can be found here.

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The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.

Contacts:

Brionna Aho, Communications Director, (360) 753-2727; Brionna.aho@atg.wa.gov

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