According to Secretary of the Interior David Bernhardt, the revised rules will “increase [the] transparency and effectiveness” of implementing the ESA. The rules may also result in less stringent protections for some species over time, accelerated listing and delisting decisions and project approvals and cost savings for industry. Indeed, the revised rules replace the presumption of protection for threatened species with determinations made on a “case-by-case” basis, with the stated intent of reducing regulatory burdens on farmers, ranchers, developers and others as species recover. Meanwhile, the changes to sections governing the interagency review process will alter the way interagency consultations are conducted, reducing the requirements for consultation with wildlife agencies and others prior to permitting oil and gas and logging operations.
Although these revisions may well be a welcome change to those caught in the crosshairs of the ESA, environmental groups and others will undoubtedly bring suit to challenge the rules’ provisions. Indeed, barely a week after the Services released the prepublication versions of the new rules, seven environmental groups, including the Sierra Club and the Center for Biological Diversity, filed a joint lawsuit in the Northern District of California challenging the rules.3 In addition, the Attorneys General of Massachusetts and California have already indicated that they intend to sue.4 Finally, Senator Tom Udall (D-NM), ranking member of the Interior and Environment Appropriations Subcommittee, suggested that Congress may consider using the Congressional Review Act to veto the new rules.5
1 Endangered and Threatened Wildlife and Plants; Regulations for Prohibitions to Threatened Wildlife and Plants, 84 Fed. Reg. 44753 (Aug. 27, 2019); Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation, 84 Fed. Reg. 44976 (Aug. 27, 2019); Endangered and Threatened Wildlife and Plants; Regulations for Listing Species and Designating Critical Habitat, 84 Fed. Reg. 45020 (Aug. 27, 2019).
2 This change addresses the Supreme Court’s recent ruling in Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018).
3 No. 3:19-cv-05206 (N.D. Cal. Aug. 21, 2019).
4 https://www.reuters.com/article/us-usa-trump-wildlife/trump-administration-weakens-u-s-wildlife-protections-states-and-conservationists-to-sue-idUSKCN1V21KA.
5 https://www.tomudall.senate.gov/news/press-releases/udall-statement-on-trump-endangered-species-act-rollback.