Last summer a federal judge in California vacated a series of Trump-era rules on enforcement of the Endangered Species Act. It was a disappointment to many of us who had worked for years on several relatively modest reforms designed to make the cumbersome bureaucratic process more efficient. A couple weeks ago the 9th Circuit Court of Appeals sent shock waves across the Interior Department by invalidating that judge’s ruling and reinstating the 2019 rules, at least for now.
The ruling was an embarrassing smackdown to a district judge who thinks he can make up the law as he goes. It was especially humiliating coming from the Ninth Circuit, long known as America’s most liberal appellate court, one which almost always sides with the environmental industry in such disputes. But in this case, the court’s ruling was short and to the point, saying the lower court “clearly erred” in vacating the 2019 rules without first ruling on their underlying legal validity.
The reason for that simplicity is that the lower court, in its ruling last July, made no effort to determine whether those rules had been adopted in accordance with required legal procedures. The judge made no attempt to rule on the merits of the issue. Rather, the Biden Administration informed the court that it intended to change those rules, so the judge simply threw them out as if they became moot the moment the new Administration said it didn’t like them. But the 2019 rules were not moot – they were the law. They were adopted after the complex and cumbersome legal process had been completed, including publication of the draft, public comments, amendments, final publication, and all the rest.
The Biden administration wanted to move faster than the administrative process allows, to rescind the Trump rules immediately and nationwide, without public notice or the opportunity for public comment. The judge’s ruling accomplished exactly that, until overturned by the Ninth Circuit. The higher court ruling makes it clear that the new Administration must follow the same procedure if it wishes to promulgate new rules. No judge has the authority to cancel federal regulations just because he supports the new Administration. A district court may not vacate an agency regulation without ruling on its legal merits.
That means the 2019 rules remain in force while other legal action is pending, until the Biden Administration decides whether to change them through the full legal rulemaking process.
Why all the legal wrangling over protecting endangered species, a goal that enjoys almost universal public support? As usual, it isn’t about the species, it is about how bureaucrats interpr4et and enforce the law. The 50-year-old Endangered Species Act (ESA) is the most powerful environmental law ever enacted, and it has steadily become more powerful and intrusive.
Originally understood by most Americans as an effort to save high-profile species like the bald eagle and grizzly bear, the law’s reach has grown to include 2,368 species of plants, animals, fish, birds, mollusks, and worms. Another 57 species are about to be added, another 24 are considered “candidates for listing.” Over the life of the ESA, fewer than three percent have been recovered and removed from the list, making the goal of species recovery one of government’s most dismal failures.
That frustration led to the 2019 regulations, a few modest but important procedural changes. For instance, “critical habitat” to be protected for listed species must be areas where the species actually lives. That was a significant change from previous practice, where designated habitat often included lands where the species does not live, and in some cases never did. The Supreme Court already ruled, in the Louisiana dusky gopher frog case, that such designations were not authorized by law. The 2019 rules conform to the court’s ruling on habitat designations.
Another important change clarified the difference between “endangered” and “threatened” listings. Congress clearly intended a lower level of protection for the latter, one that would continue to allow people to go about their business while being mindful of the species. In practice, the Fish and Wildlife Service had simply adopted a blanket rule treating all listed species the same. Finally, the new rules required the agency at least to consider the possible economic impact a listing might have on rural communities before making a decision, and it put a deadline on federal agency consultations, providing greater certainty to regulators, landowners and communities.
Environmental industry leaders, always quick to sound the alarm, immediately labeled the new rules as a “death sentence for polar bears,” and “turning a blind eye on climate change.” And some corporate executives touted the changes as a panacea to fix decades of federal abuse. Both sides just needed to turn down the volume – the new rules were neither death sentence nor panacea.
Wherever one stands on these procedural issues, though, if the new Administration wants to rewrite the endangered species rulebook, it will have to follow the same process every other Administration had to follow.
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