And, another view....

Alabama Attorney General Luther Strange has taken point in a multi-state lawsuit challenging new federal rules he says would broadly expand the definition of “critical habitats” for endangered or threatened species in the United States.

The lawsuit was filed Tuesday in U.S. District Court for the Southern District of Alabama against the U.S. Secretary of the Interior, Secretary of Commerce and the U.S. Fish and Wildlife Service and National Marine Fisheries Service — known collectively as “the Services.”

Strange was joined by attorneys general from 17 other states in challenging the proposed change to federal regulations related to “designating critical habitats” under the Endangered Species Act of 1973 (ESA).

The ESA was intended to protect a number of plant and animal species that were faced with extinction at the time it was passed, and a critical component of the legislation dealt with the protection of areas deemed “critical habitat” for those species.

However, in the late 1970s, amendments to the ESA were added after the Supreme Court’s interpretation of the law resulted in the suspension of a federally funded Tennessee dam project Congress had already put more than $100 million into.

According to the complaint, those amendments were “intended to reform the statute and provide limits to its reach” by adding specific definitions for critical habitat and any “adverse modifications” that could negatively impact those areas.

As a result, critical habitat under the ESA was defined as a specific area “occupied by a species at the time [it’s] listed” as endangered. Such habitat must contain “physical or biological features essential to the conservation of the species” that require special “considerations or protections.”

It’s even more difficult to classify an area as “critical habitat” if it’s unoccupied by an endangered species, as it requires the federal services to prove those unoccupied areas are “essential for the conservation of the species.”

However, in February, the services announced plans to amend those regulations, which among other things, would expand the definition “critical habitat” to include areas that might not even be used by a threatened species until some point in the “foreseeable future.”

“Washington bureaucrats have gone beyond common sense by seeking to expand their control to private property adjoining the habitat of an endangered species solely on the basis that these areas might one day be home to a threatened species,” Strange said. “If this rule is unchallenged, there could be no limit to their regulatory reach, potentially setting the stage for the federal government to designate entire states or even multiple states as habitat for a particular species.”

According to Strange, the rules would give the federal government “virtually unlimited power” to declare an area critical habitat for an endangered species regardless of whether the species occupies the area — even if that area is unable to sustain the species to begin with.

Though it’s an unlikely scenario, a statement from Strange’s office suggests the new rules would allow the federal government to declare “desert land as critical habitat for fish” and then prevent construction there “under the theory that it could prevent the future formation of a stream that might one day support fish.”

Strange also suggested the expansion of the federal government’s authority under the ESA would “ trample upon the sovereign rights of the States” because they are directly affected by areas within their borders designated critical habitat and by what activities are defined as “destruction or adverse modification” in those areas.

According to the complaint, compliance with the ESA is part of many state agencies’ operations in Alabama — something that’s “ especially true in the context of state construction projects.”

“State transportation projects, pipeline construction and maintenance, forest and stormwater management, and other key infrastructure operations must comply with the ESA and critical habitat designations,” the complaint reads. “States also comply with the ESA when issuing permits to use certain pesticides and herbicides, including monitoring the use of these chemicals to ensure they do not destroy critical habitat.”

Others have expressed concerns that global climate change could push the boundaries of areas that have historically been considered as critical for certain protected species.

While it isn’t mentioned in the complaint, climate change and its effects on the implementation of the ESA were addressed by the services in public comments posted to the federal registry. In one case, the services said they anticipated “increasingly” using the ESA in the future to designate unoccupied areas as critical habitat for threatened species due to expected changes in climate.

“As the effects of global climate change continue to influence distribution and migration patterns of species, the ability to designate areas that a species has not historically occupied is expected to become increasingly important,” the services wrote. “In other words, we may find that an unoccupied area is currently ‘‘essential for conservation’’ even though the functions the habitat is expected to provide may not be used by the species until a point in the foreseeable future.”

However, the services also said the new regulations wouldn’t actually expand their authority in that regard because the current law “allows for sufficient flexibility to address the effects of climate change in critical habitat designation.”

They also wrote the “data and rationale” behind any designation like that would be “clearly articulated” when and if it’s proposed in the future.

John Stewart
Vice President, BlueRibbon Coalition