The Endangered Species Act (ESA) regulations promulgated by the Trump administration (Trump ESA Rules) were challenged by environmental groups. While that challenge was pending, the Biden administration announced that those regulations would be revised. On July 5, the U.S. District Court for the Northern District of California vacated the Trump ESA regulations, not on the merits of the regulations but because they are in the process of being rewritten. This decision disregards the Biden administration’s request that the regulations remain in effect to preserve consistency and order during the revision process. Instead, the pre-Trump regulations (which were issued in the mid-1980s) have been reinstated and are now in effect until the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, the Services) finalize new regulations.

The Trump ESA Rules included:

1. The “Listing Rule” that modified how the Services add, remove, and reclassify endangered or threatened species and the criteria for designating listed species’ critical habitat;
2. The “Blanket Rule Repeal,” which eliminated the USFWS’ former policy of automatically extending to threatened species the protections against “take” that Section 9 automatically affords to endangered species; and
3. The “Interagency Consultation Rule” that changed how the Services work with federal agencies to prevent proposed agency actions that could harm listed species or their critical habitat.

The Trump ESA Rules were challenged by environmental groups and other parties, alleging that the Services violated the Administrative Procedure Act (APA) and the National Environmental Policy Act (NEPA) in implementing the rules.

On January 19, 2021, the plaintiffs moved for summary judgment. The following day, however, President Biden signed Executive Order 13990, which directed the Services to evaluate and, where appropriate, revise or rescind regulations that had been enacted during the previous four years. Pursuant to that executive order, the Services announced their intention to revise the Listing Rule and Interagency Cooperation Rule and rescind the Blanket 4(d) Rule Repeal and re-instate protections for threatened species. Following these announcements, the parties agreed to a stay of the ongoing litigation.

However, in October 2021, the court lifted the stay, and the plaintiffs re-noticed their motions for summary judgement. In response, the Services filed a motion to remand the rules without vacatur, and plaintiffs opposed, asking that the court remand with vacatur or deny the Services’ motion altogether so the matter can be adjudicated on the merits. According to the court, because no party alleged that the Services’ request for remand was frivolous or in bad faith, the court considered the extent to which it may vacate the Trump ESA Rules without fully adjudicating the merits of plaintiffs’ claims.

In considering whether to vacate agency action concurrently with remand, the court explained that it considers two factors: the seriousness of the agency’s errors and “the disruptive consequences of an interim change that may itself be changed.” The court concluded that vacating the Trump ESA Rules would not be “disruptive” as it would not cause confusion among the public, other agencies, and stakeholders, or impede the efficiency of ESA implementation by abruptly altering the applicable regulatory framework and creating uncertainty about which standards to apply. Moreover, the court considered that the Services’ announcements that they are in the process of proposing new ESA rules.

An appeal to the Ninth Circuit is expected to be filed by the several states and industry groups that participated in the District Court proceeding. The District Court recently relied on a similar analysis to vacate and remand the Trump-era Clean Water Act Section 401 Rule (Certification Rule). However, on April 6, the Supreme Court (without providing a fulsome opinion for further analysis) overturned the District Court’s vacatur of the Certification Rule, pending the outcome of the litigation in the Ninth Circuit. The effect of the Supreme Court’s decision reinstated the Certification Rule, at least temporarily.

While it is unclear whether the fate of the 2019 ESA Rules will follow a similar path as the Certification Rule, it serves as a recent example of how the Supreme Court may disfavor the District Court’s approach of overturning fully promulgated rules without first addressing the merits.