Endangered Species Law & Policy

In a per curiam decision, the United States Court of Appeals for the D.C. Circuit dismissed the Center for Biological Diversity’s (CBD) challenge to the Fish and Wildlife Service’s (Service) process for assessing the status of species to inform regulatory decisions with respect to those species.  That process, referred to as species status assessment (SSA), is akin to a biological risk assessment for the target species.  It has been developed by the Service over the past several years and provides a more structured approach to assessing listing, delisting, uplisting, and downlisting decisions.

CBD filed a lawsuit in November 2018 alleging that the Service’s development of the SSA program failed to comply with the Endangered Species Act and Administrative Procedure Act.  The Service began developing an SSA program in 2012 and finalized the SSA Framework in 2016.  CBD claimed that by failing to provide notice in the Federal Register of the SSA program’s development and its implementing guidelines with an opportunity to comment, the Service violated the Endangered Species Act and Administrative Procedure Act.  The federal district court dismissed the challenge on the grounds that CBD lacked standing to pursue the challenge under Article III of the U.S. Constitution.  The D.C. Circuit affirmed that decision, reasoning that CBD’s only claimed injury is procedural and caselaw requires a plaintiff to allege personal and particularized injury to have Article III standing.  In other words, deprivation of a procedural right in a vacuum, absent any other showing of injury, does not suffice to establish standing.

The practical consequence of the decision is that the Service can continue to implement the SSA program and issue additional guidance to implement the SSA program without soliciting input from stakeholders.  That said, the holding does not preclude the Service’s ability to seek input on guidance, which can frequently be expected to improve the quality of such guidance.  Whether the Service does so will be a matter of policy rather than law.