Endangered Species Law & Policy

On July 5, 2022, the U.S. District Court for the Northern District of California issued an order vacating three Trump-era regulations implementing the Endangered Species Act (“ESA”).

In 2019, the U.S. Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (collectively, the “Services”) issued three final rules (“2019 ESA Rules”) modifying how the Services implement the ESA, including: (1) a rule under section 4 of the ESA concerning how the Services list, delist, and reclassify endangered or threatened species and the criteria for designating or revising critical habitat for listed species; (2) USFWS’s repeal of its former regulation to automatically extend section 4(d) protections against “take” to threatened species; and (3) a rule governing section 7 inter-agency consultation between the Services and other federal agencies to ensure agency actions do not jeopardize listed species or destroy or adversely modify critical habitat.

Shortly after the Services issued the 2019 ESA Rules, multiple environmental groups, states, and cities (“Plaintiffs”) filed three separate lawsuits in the Northern District of California, asking the court to vacate the 2019 ESA Rules. Several states, private landowners, and industry groups intervened.

However, following President Biden’s January 2021 announcement that his administration would review all regulatory actions taken during the Trump Administration to ensure consistency with Biden Administration policies, the litigation was put on hold for a period of 150 days. The court eventually determined that a further stay could cause harm “because of the continuing applicability of the challenged regulations.” 

With the stay lifted, the Services requested from the court a remand without vacatur so that the Services could address their “substantial concerns with the 2019 ESA Rules,” while allowing those rules to remain intact during the agencies’ review. Plaintiffs, however, urged the court to vacate the 2019 ESA Rules, and the court agreed that vacatur was appropriate. As a result of the ruling, the Services’ ESA regulations that were in place prior to the 2019 ESA Rules will revert back into effect.