Press Release  AG Healey Leads Lawsuit Challenging Trump Administration’s Final Assault on Endangered Species Act Protections

BOSTON — Massachusetts Attorney General Maura Healey co-led a coalition of 18 attorneys general and the City of New York in suing the Trump Administration over two recently finalized and unlawful rules that will drastically reduce the amount of rare species habitat protected under the federal Endangered Species Act (ESA).

In the complaint filed today, the coalition argues that the rules, hastily finalized by the Trump Administration in its waning days, violate the ESA, the Administrative Procedure Act (APA), and the National Environmental Policy Act (NEPA).  The first rule adds a new, restrictive definition of “habitat” to regulations that govern critical habitat designations, while the second establishes a new, unlawful process for excluding qualifying areas from critical habitat designations. 

“In his last days in office, President Trump is recklessly focused on rolling back critical protections for wildlife and their habitats, making it easier for his friends in the oil and gas industry to develop land at the expense of our natural resources,” AG Healey said. “We will keep fighting to defend and protect federal law, the environment, and our imperiled species.”

As the Supreme Court has recognized, the ESA was enacted under the Nixon Administration with nearly unanimous bipartisan support “to halt and reverse the trend toward species extinction, whatever the cost.” Under the ESA, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the Services) are responsible for listing species as “endangered” or “threatened” and designating “critical habitat” for each such species based on “the best scientific data available” and after considering economic, national security, and other relevant impacts of critical habitat designation. The ESA provides areas designated as critical habitat with significant protections to ensure that species have the ability to recover to sustainable population levels so that they no longer need the ESA’s protections. While the ESA does not define “habitat,” FWS has long held that habitat should be determined on a species-by-species basis to account for each species’ varied life histories, behavior patterns, and survival strategies. 

Under the first final rule, however, the Services will use a new, narrow definition of “habitat” for purposes of critical habitat designations. The rule will limit the FWS’s ability to recover imperiled species by reducing the type and amount of critical habitat that can be protected, including habitat that is necessary to accommodate species’ migration spurred by climate change. 

Under the second final rule, promulgated by FWS alone, FWS will, among other things, also be required to consider excluding areas from a critical habitat designation when a “proponent of excluding a particular area” presents “credible information” supporting exclusion. In conducting such an analysis, FWS must now defer to outside “experts” and “sources” regarding impacts that are purportedly outside the scope of FWS’s expertise. And if FWS determines that the benefits of excluding a particular area outweigh the benefits of specifying that area as a critical habitat, then FWS must exclude that area, unless it will result in the extinction of a species.

In the lawsuit, the coalition asks the U.S. District Court for the Northern District of California to vacate these unlawful rules. The coalition contends that the rules violate the ESA’s plain language and conservation purposes, its legislative history, and binding judicial precedent. Additionally, the coalition contends, the rules are arbitrary and capricious and violate the APA because, among other things, the Services failed to provide any reasoned basis for promulgating the rules, failed to consider the rules’ impacts on imperiled species and their habitat, and failed to provide adequate public notice and opportunity for comment. The attorneys general further argue that the Services violated NEPA by failing to evaluate, consider, or disclose the significant environmental impacts of the actions and unlawfully invoking an exclusion from such review intended for mere procedural rules.     

Joining AG Healey, California Attorney General Xavier Becerra, and Maryland Attorney General Brian Frosh in filing the lawsuit are the attorneys general of Connecticut, Illinois, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, and the City of New York.

Endangered Species Act Motion for Summary Judgment

Additionally, AG Healey co-led a multistate coalition in filing a motion for

summary judgment yesterday in its September 2019 lawsuit challenging the Trump Administration’s rollbacks of other essential protections under the ESA, including provisions for endangered and threatened species listing, critical habitat designation, and interagency consultation on projects’ effects on listed species. The coalition argued that three rules were finalized by the Administration as a deregulatory effort to undermine the key requirements and purpose of the ESA and thereby violate the ESA, APA, and NEPA.

Joining AG Healey in filing the motion for summary judgment are the attorneys general of California, Maryland, Colorado, Connecticut, Illinois, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia, as well as the City of New York.

Migratory Bird Treaty Act Lawsuit

In continued efforts to protect vulnerable species from the Trump Administration’s rollbacks, AG Healey today also joined a coalition of attorneys general in challenging the Trump Administration’s final rule narrowing the scope of longstanding protections for migratory birds under the Migratory Bird Treaty Act (MBTA). Today’s lawsuit comes on the heels of a win in favor of AG Healey and a coalition of other states in federal district court in New York. In that case, the court struck down an opinion by the Trump Administration’s Solicitor of the Interior.  In the rule challenged today, the Administration codified that unlawful opinion as a federal regulation. In its decision, the district court found that the Department of Interior’s interpretation prohibiting FWS from holding liable persons and entities who kill migratory birds with oil spills, waste ponds, logging, and other industrial activities was “an unpersuasive interpretation of the MBTA’s unambiguous prohibition on killing migratory birds.” Today’s lawsuit argues that the final rule is illegal for the very same reasons:  it directly conflicts with the MBTA’s text and purpose and is inconsistent with existing legislation that reaffirms MBTA’s longstanding ban on the killing of over 300 migratory birds.

Joining AG Healey in filing the challenge over the rollback of protections under the Migratory Bird Act are the attorneys general of New York, California, Connecticut, Illinois, Maryland, Minnesota, New Jersey, New Mexico, Oregon, and Washington. 

Handling the Endangered Species Act lawsuits for Massachusetts are Assistant Attorneys General Turner Smith and Matthew Ireland of AG Healey’s Environmental Protection Division. Senior Appellate Counsel Seth Schofield of the AG’s Energy and Environment Bureau and Special Assistant Attorney General Megan Herzog of the AG’s Environmental Protection Division are handling the Migratory Bird Treaty Act lawsuit for Massachusetts.

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