On June 7, 2021, the U.S. Supreme Court (“SCOTUS”) agreed with the Department of Justice and declined to hear a case brought by the Kansas Natural Resource Coalition (Coalition) challenging the U.S. Fish and Wildlife Service’s (Service) failure to submit the Policy for the Evaluation of Conservation Efforts (PECE) Policy to Congress under the Congressional Review Act (CRA). The case, which represents a unique intersection between the lesser prairie-chicken (Tympanuchus pallidicinctus) (LEPC), the Service’s PECE Policy, and the CRA, appears to foreclose the ability of plaintiffs in the 10th Circuit Court of Appeals’ jurisdiction from challenging the failure of federal agencies to submit rules to Congress under the CRA. A brief summary of the litigation follows below.
In 2013, the Coalition finalized a conservation plan benefitting the LEPC, the purpose of which was to prevent listing of that species under the Endangered Species Act. A year later, the Service listed the LEPC as threatened. In its listing rule, the Service acknowledged the existence of various conservation actions, including the Coalition’s conservation plan. However, the Service indicated that existing conservation actions—including those associated with the Western Association of Fish and Wildlife Agencies’ (WAFWA) LEPC range-wide conservation plan - were not certain enough to allow the Service to conclude the LEPC no longer met the definition of a threatened species—a requirement of the PECE Policy.
The listing decision was challenged in a lawsuit brought by the Permian Basin Petroleum Association in the U.S. District Court for the Western District of Texas. In 2015, the court in that lawsuit vacated the listing rule based in large part on the Service’s improper application of the PECE Policy to the WAFWA Range-wide Plan.
In 2018, the Coalition sued the U.S. Department of the Interior and the Service for their failure to submit the PECE Policy to Congress pursuant to the CRA. The Coalition claimed that the Service’s failure to submit the PECE Policy for CRA review should invalidate the PECE Policy and, as a result, prevent the Service’s reliance on the same in connection with listing decisions.
The district court held the Coalition did not have standing to bring the case because they had not experienced injury in fact (i.e., no county had declined to participate in the conservation plan because of the failure of the Service to submit the PECE Policy to Congress under the CRA). The district court also held that the CRA does not provide for judicial review of an agency’s failure to submit a rule for review. The U.S. Court of Appeals for the 10th Circuit (10th Circuit) upheld the district court’s decision and additionally ruled that the plaintiffs could not amend their complaint to address the standing issue because the CRA does not provide for judicial review. The fact that SCOTUS declined to review the 10th Circuit’s decision means that the 10th Circuit’s decision stands as the last word on this case.
As noted above, the10th Circuit’s decision means that plaintiffs in that Circuit may not use the failure of an agency to submit a rule or policy to Congress under the CRA as a basis to invalidate a rule or policy. The history of this case also demonstrates that the PECE Policy itself may discourage the implementation of voluntary conservation measures for at-risk species. As the number of species with broad habitat ranges undergoing ESA status reviews increases (e.g., monarch, little brown bat, northern long-eared bat, etc.), we may see increased scrutiny of—and challenges to—the Service’s use of the PECE Policy as a basis for listing decisions.
Brooke Marcus Wahlberg is a natural resources lawyer focused on powering the economy while maintaining compliance with environmental laws. She is go-to counsel for matters involving the Endangered Species Act (ESA), the ...
Rebecca Hays Barho focuses her practice on natural resource law, with particular emphasis on the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Migratory Bird Treaty Act (MBTA), the Clean Water Act ...
Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.
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