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 Register. In the meantime, the final regulations can be found on the FWS website.Continue Reading Final ESA Rules Include Fundamental Shift in RPMs
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.Continue Reading FWS Prepares for Tricolored Bat Listing With New Guidance
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.Continue Reading Changes to Eagle Take Permitting Finalized by Fish and Wildlife Service
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.Continue Reading Louisiana v. EPA: A Turning Point for Title VI and Environmental Justice?
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.Continue Reading Fish and Wildlife Service Revises Its Mitigation Policies
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.Continue Reading New Jersey Moves Forward with Implementation of First-of-Its-Kind Environmental Justice Statute
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.Continue Reading President Biden Signs Executive Order on Environmental Justice
Fish and Wildlife Service Proposes to List Tricolored Bat as Endangered
On September 14, the U.S. Fish and Wildlife Service (FWS) issued a proposal to list the tricolored bat (Perimyotis subflavus) as an endangered species.
Continue Reading Fish and Wildlife Service Proposes to List Tricolored Bat as Endangered
Environmental Groups Target Texas Air Permitting Program on Environmental Justice Grounds
On June 28, a coalition of 11 environmental groups petitioned the U.S. Environmental Protection Agency (EPA) under the Administrative Procedure Act and the Clean Air Act to address the alleged failure of Texas Commission for Environmental Quality (TCEQ) to comply with and properly implement public participation and environmental justice requirements in its air permitting program. Specifically, the petition alleges that TCEQ violates the Clean Air Act and Title VI of the Civil Rights Act by: (1) restricting public participation in air permitting by limiting judicial review of permits; (2) allowing applicants to withhold public information during the permitting process; and (3) allowing facilities to operate under the state’s permits by rule (PBR) program, which provides no meaningful opportunity for public participation.
Continue Reading Environmental Groups Target Texas Air Permitting Program on Environmental Justice Grounds
Trump ESA Rules Vacated
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.
Continue Reading Trump ESA Rules Vacated