On November 29, eighteen states filed suit in the Southern District of Alabama challenging a rule recently finalized by the Fish and Wildlife Service and the National Marine Fisheries Service (the “Services”), the two agencies charged with the implementation of the Endangered Species Act (“ESA”). The suit concerns the Services’ revision of the definitions of “critical habitat” and “adverse modification” in their regulations implementing the ESA. The states argue the revised definitions are inconsistent with the ESA, as the new rules expand the Services’ authority to designate areas that are not currently occupied by threatened or endangered species as critical habitat (described in another blog post here). Specifically, the states assert that the Services must explain how unoccupied areas can be “essential” to the conservation of a species, and therefore deserve protection under the ESA. Similarly, the states take issue with the Services’ new ability to designate critical habitat based on biological factors not yet present in an area.

Whether an area is designated as critical habitat has implications under Section 7 of the ESA, which requires each federal agency to insure any proposed project is not likely to “result in the destruction or adverse modification” of any species’ critical habitat. The Services have recently recognized that critical habitat designations can have immediate, negative economic impacts on the areas so designated. Markle Interests, L.L.C. v. U.S. Fish and Wildlife Service, 827 F.3d 452 (5th Cir. 2016).

While lawsuits challenging these rules were widely expected, the states’ lawsuit, filed soon after the election of Donald Trump, appears timed to take advantage of a friendly Administration that may decide not to defend the rules and, perhaps, ask for a judicial stay during a reconsideration of the rules.  For more information on the implications of the lawsuit or the rule, please contact Andrea Wortzel, Angela Levin, or Rich Pepper.