On April 17, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together Services) published a proposed rule to rescind the long-standing definition of “harm” under the Endangered Species Act (ESA). The proposal appears to be one of the first in response to President Trump’s April 9 Presidential Memorandum, “Directing the Repeal of Unlawful Regulations,” which directs federal agencies to revise or rescind regulations that conflict with the plain meaning of the underlying statute. If adopted, it will significantly change the ESA’s implementation. The FWS and NMFS are taking comments on the proposed rule from April 17 through May 17.
Twin Killings: Executive Orders Put Existing Energy Regulations in the Crosshairs
On the evening of April 9, 2025, the Trump administration released a pair of deregulatory executive actions that could have major implications for any industry subject to federal rules — and are also likely to be a magnet for litigation. These orders come fast on the heels of an April 8 executive order, “Protecting American Energy from State Overreach,” which announces actions to curtail state and local laws and policies focused on climate change and environmental justice.
First Day Presidential Directives May Have Broad Implications for Wind Industry
Among President Donald Trump’s directives issued on his first day in office was a Presidential Memorandum targeting wind energy, which has been a significant source of new electricity generation in the United States over the past decade, totaling around 10% of utility-scale generation. Among other things, the Memorandum “temporarily” withdraws
Final ESA Rules Include Fundamental Shift in RPMs
On March 27, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (collectively, the Services) issued three sets of final rules revising the Endangered Species Act (ESA) regulations. The effective date of the regulations will not be known until the regulations are published in the Federal
FWS Prepares for Tricolored Bat Listing With New Guidance
The U.S. Fish and Wildlife Service (FWS) continues to focus on protections for bat species that have been ravaged by white-nose syndrome. In 2023, the Northern Long-Eared Bat (NLEB) was uplisted to endangered status. The FWS proposed to list the Tricolored Bat (TCB) as endangered in 2022, with a target date of September 2024 to finalize the listing. However, on April 1, FWS issued a series of guidance documents covering both NLEB and TCB, suggesting that the TCB endangered listing may be accelerated. Like the NLEB, the TCB has extensive habitat throughout the U.S. (37 states for NLEB, and 39 states for TCB). Accordingly, these listings have significant impacts on projects that involve tree clearing.
Changes to Eagle Take Permitting Finalized by Fish and Wildlife Service
Effective April 12, a new eagle take permitting regime will be in place. The eagle take permitting scheme has been criticized because of its overly conservative and burdensome requirements. These concerns culminated in a lawsuit filed against the U.S. Fish and Wildlife Service (FWS). Debra Shearwater et al. v. FWS, Case No. 14-CV-02830 (N.D. Cal 2015). The changes to the permitting regulations published on February 8 are the outcome of that litigation.
Louisiana v. EPA: A Turning Point for Title VI and Environmental Justice?
At the end of January, a federal judge issued a ruling in a high-profile environmental justice case, Louisiana v. EPA, brought by Louisiana against the Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ). The ruling temporarily blocks EPA and DOJ attempts to enforce disparate-impact regulations promulgated under Title VI of the Civil Rights Act against Louisiana state agencies. Beyond that, the decision has potentially significant ramifications for the Biden administration’s ongoing environmental justice initiatives.
Fish and Wildlife Service Revises Its Mitigation Policies
Last week, the U.S. Fish and Wildlife Service (FWS) released two revised compensatory policies. The Mitigation Policy and the ESA Compensatory Mitigation Policy reject the stringent goal of net conservation gain used by the FWS during the Obama administration. Instead, both policies include the goal of no net loss, which means maintaining the current status of affected resources. While the policies are nonbinding, they will guide how the FWS evaluates compensatory mitigation in the context of incidental take permitting, conservation benefit agreements for candidate species, and ESA Section 7 consultation. Both policies do not apply retroactively to completed actions, but the FWS may elect to apply the Mitigation Policy’s principles to actions under review. Both policies continue to favor advance compensatory mitigation over other mitigation options.
New Jersey Moves Forward with Implementation of First-of-Its-Kind Environmental Justice Statute
*Chelsey Noble is a law clerk in the Richmond office and is not licensed to practice law in any jurisdiction.
In 2020, New Jersey enacted a first-of-its-kind environmental justice statute, the Environmental Justice Law (EJ Law). The EJ Law requires that permit applicants for certain water, waste, and air facilities located, wholly or partially, in overburdened communities prepare an environmental justice impact statement (EJIS) and engage in meaningful public participation. Significantly, the EJ Law included a provision requiring the New Jersey Department of Environmental Protection (NJ DEP) to deny a permit if a disproportionate impact on overburdened communities cannot be avoided.
President Biden Signs Executive Order on Environmental Justice
*Chelsey Noble is a law clerk in the Richmond office and is not licensed to practice law in any jurisdiction.
On April 21, President Biden signed Executive Order No. 14096 (EO), titled “Revitalizing Our Nation’s Commitment to Environmental Justice For All.” The EO builds on prior executive orders by President Biden related to environmental justice, racial equity, and climate change, as well as on the original executive order on environmental justice issued in 1994 by President Clinton (Executive Order No. 12898). Overall, the EO establishes a stronger framework with specific milestones for implementing environmental justice across federal agencies. Below is a summary of the EO’s key provisions.