Endangered Species Law & Policy

On Friday, February 20, a federal district court denied (pdf) a motion to dismiss, thereby breathing life into an Endangered Species Act (ESA) challenge brought against the Export-Import Bank of the United States (Bank) for funding activities in and around Australia’s Great Barrier Reef World Heritage Area. See Center for Biological Diversity, et al. v. Export-Import Bank of the United States, No. C 12-6325 SBA (N.D. Cal. Feb. 20, 2015). As previously reported on this blog, the case alleges that the Bank violated section 7 of the ESA by failing to consult with federal wildlife agencies concerning the potential effects of constructing and operating two liquefied natural gas projects on four listed species and their habitats. In support of their motion to dismiss, Defendants argued that the Bank had taken no agency action that triggers section 7 consultation because the project occurs entirely within a foreign country and its territorial waters. In other words, Defendants argued that the project falls outside the geographic scope of section 7, which only applies to actions within the territory of the United States and upon the high seas. The Court rejected this argument, holding that facts alleged in the Plaintiffs’ complaint sufficiently supported an inference that the project being funded by the Bank includes shipping activities that occur "upon the high seas."