endangered species act
In August, the Secretary of the Interior announced that the Trump Administration would be making revisions to the way the Endangered Species Act (ESA) is carried out under federal regulations. The move was made in part to further the Administration’s goal to “ease the regulatory burden” on citizens. The revised regulations apply to sections 4 and 7 of the ESA, which means they make changes to how species are listed as endangered, how critical habitat for species is determined, how threatened species are treated, and how the different federal agencies cooperate to carry out the ESA.
Revision of endangered, threatened, and critical habitat protections
The changes to how the ESA is carried out were made in three rulemakings published on August 27, 2019. One of the rules, available here, is meant to increase cooperation between federal agencies when carrying out the ESA (this rule is set to become effective on October 28). Changes made by the other two rules, available here, and here, are much more controversial because they have a great impact on how endangered and threatened species and their habitats are treated under federal regulations. The new rules went into effect on September 26, 2019. We discuss some of the biggest modifications below.
First, the rules change the term “physical or biological features” to “physical or biological features essential to the conservation of the species.” This change will likely diminish the number of natural features and areas that will be protected, since only those deemed essential to an endangered species will be protected. Similarly, the new rules give the federal government more leeway to determine when habitat is not critical habitat for species, which may result in less habitat being protected under the new iteration of the rules.
In yet another change, the new rules separate the discussion of “threatened” and “endangered” species within the regulatory text. Due to this uncoupling, some read the new version of the rule as stripping threatened species of protections they enjoyed when they were more closely related to endangered species. The new edition of the rules instead includes factors for determining whether a species can be listed as threatened, such as whether it is likely the species will become endangered in the “foreseeable future,” which will be determined on a case by case basis. Critics of the new rules believe that this language will give the government the discretion to overlook the effects of climate change on a species, which could play out over a period of time longer than the “foreseeable future.” Along the same lines, the rules also make it harder to ban certain activities in order to protect threatened species.
The rules weaken the ESA by allowing the federal government to take into account the actions of states, other nations, and local jurisdictions when listing and delisting species. In other words, if the species is being protected on another level of government or by another country, the U.S. government may be less inclined to protect the species; either by choosing not to list the species, or by removing its threatened or endangered status. Importantly, the new rules also allow “commercial information,” not just scientific information, to be considered when making a decision. Under the old rules, agencies were not allowed to consider the economic impacts of listing or delisting a species. On the whole, the rules seem to give the federal government a lot more discretion to determine that species or habitats should not be protected.
On September 25, 2019, the day before the new rules became effective, the attorneys general from 17 states, including Ohio’s neighbors Michigan and Pennsylvania, sued the Trump Administration in federal court over the changes to the rules. You can find the complaint here. The states assert that the rulemaking violates several federal statutes, including the Administrative Procedure Act, which governs federal administrative agencies. The states further claim that the weakening of protections for endangered and threatened species and their habitats will cause harm to their natural resources, harm to their citizens through environmental degradation, take away the current and future economic benefits of protected species, and increase costs for state governments.
Amidst all the rule changes and lawsuits, members of Congress have been working on their own potential changes to the ESA. Recently, the Congressional Western Caucus, a group of congress members from all around the country who are concerned with land use and resource rights, among other causes, introduced nineteen bills meant to “modernize” the ESA. If you’re interested in the specifics of each bill, they are listed on the Caucus’ website, here. Overall, the bills focus on fixing the ESA by implementing “defined recovery goals” for species, relying on “standardized…publically available” science, and allowing more involvement from states and stakeholders on endangered species decisions.
With action taking place on the administrative, legislative, and judicial levels of the federal government, the way the ESA is written and interpreted seems to be up in the air at present. We will be sure to update the Ag Law Blog with any developments.
Written by: Ellen Essman, Sr. Research Associate, and Evin Bachelor, Law Fellow
Here’s our latest gathering of agricultural law news that you may want to know:
GIPSA as we know it is no more. A rule was released November 29, 2018 by the USDA as part of the Trump administration’s ongoing efforts to reorganize the agency. Of particular note, the rule, which was published in the Federal Register, eliminates the Grain Inspection, Packers and Stockyards Administration (GIPSA) as a “stand-alone agency.” According to the GIPSA website (which is currently still available here), the agency “facilitate[d] the marketing of livestock, poultry, meat, cereals, oilseeds, and related agricultural products, and promote[d] fair and competitive trading practices for the overall benefit of consumers and American agriculture.” The new administrative rule relocates GIPSA responsibilities to the Agricultural Marketing Service (AMS) Administrator. The change is not without controversy, as some farmers and agricultural groups argue that the protection of farmers through fair trading practices is antithetical to AMS, an agency responsible for marketing and promoting commodities. The rule is available here.
Supreme Court considers when habitat is “critical habitat” under the Endangered Species Act. The Supreme Court of the United States ruled in favor of private landowners when it recently determined that protected "critical habitat" for an endangered species must be habitat in which the species could actually survive. The Court's decision in Weyerhaeuser Co. v. United States Fish and Wildlife Service et al involved the dusky gopher frog, an endangered species that once lived throughout the coastal regions of Alabama, Louisiana, and Mississippi. Some of the habitat deemed by the U.S. Fish & Wildlife Service to be protected "critical habitat" for the frog was not actually occupied by the frog, and was instead being used for commercial timber production. Weyerhaeuser and other affected landowners brought suit, claiming that the land couldn't be critical habitat because the frog could not survive there without significant human intervention, such as intensive tree planting. The Court agreed that critical habitat "cannot include areas where the species could not currently survive." Weyerhouser and other landowners had also challenged the agency's cost-benefit analysis for the critical habitat designation, but the Fifth Circuit Court of Appeals disagreed and stated that it had no power to review the FWS analysis. The Supreme Court disagreed, stating that federal courts can review an agency's economic impact analysis to determine whether the agency abused its discretion or was arbitrary and capricious. With that guidance, the Supreme Court remanded the case back to the Fifth Circuit for further proceedings. The Supreme Court’s decision is here.
A second judge finds that Trump’s WOTUS repeal was not procedurally sound. Surprise, surprise, the WOTUS, or “waters of the United States” rule is in the news again. In many previous blog posts, we have chronicled decisions on the ever-present WOTUS rule (search “WOTUS” in our search bar for our other posts). Readers will recall that last February, the Trump administration published a new rule which was meant to repeal Obama’s WOTUS rule and replace it with the pre-2015 definition of WOTUS until a new definition could be developed. Trump’s rule was published on February 6, 2018, giving the administration until 2020 to come up with a new definition. On August 16, 2018, a district court judge in South Carolina found that the Trump administration did not comply with the requirements of the Administrative Procedure Act (APA) when it enacted the February 6 rule. Similarly, on November 26, 2018, Judge John Coughenour in the Western District of Washington found that “by restricting the content of the comments solicited and considered [about the February rule], the Agencies deprived the public of a meaningful opportunity to comment on relevant and significant issues in violation of the APA’s notice and comment requirements.” Rulemaking that violates the APA is invalid. Judge Coughenour’s full decision is available here.
Both the South Carolina and the Washington state district court decisions are applicable to the entire country. As a result, one might think that the Obama WOTUS rule should be in effect nationwide. However, it is important to remember that in some states, there are injunctions against carrying out Obama’s WOTUS rule. This means that it cannot be carried out in those states, and that the pre-2015 rule is actually effective in those states. EPA has a map depicting which version of the rule applies where. Uncertainty and WOTUS seem to be synonymous these days. The only thing we know for certain is that the WOTUS saga is not over, meaning things are likely to change again in the future.
Ohio Treasurer pioneers paying taxes with Bitcoin. Any business operating in Ohio may now pay certain taxes to the state of Ohio using Bitcoin, as recently announced by outgoing Ohio Treasurer Josh Mandel. The move makes Ohio the first state to accept Bitcoin as a form of tax payment. The official press release expressed hopes that other cryptocurrencies could be used, but at this time only Bitcoin will be accepted. Cryptocurrencies are said to be secure because they use blockchain, which is a digital register of transactions and information that is difficult to modify because changes to the register cannot be done by any single user. The Treasurer’s Office has specified 23 different taxes that can be paid with cryptocurrencies, including: Commercial Activity Taxes (CAT), consumer’s use taxes, Interest on Lawyers Trust Accounts (IOLTA) taxes, Pass-Thru Entity (PTE) taxes, sales taxes, and more. Paying with cryptocurrency is being accepted as an additional form of payment, as businesses can still pay with ACH credit, ACH debit, check, and money order. However, the state will not keep the cryptocurrency, but instead will use a third party to cash out the Bitcoin and convert it into U.S. dollars before depositing them into the state’s account. For more information, visit www.OhioCrypto.com or view the Treasurer’s Frequently Asked Questions page here.
Bayer prepares to bear with multiple jury trials over Monsanto’s glyphosate. Bayer AG continues to battle more and more plaintiffs claiming that their health problems were caused as a direct result of Monsanto’s Roundup and glyphosate. Another 600 plaintiffs have reportedly sued Bayer/Monsanto in the past two months since we last reported the number of lawsuits initiated with this argument. Following the multi-billion dollar verdict in California state court late this summer, more jury trials are set to begin. Over 620 cases have been filed in federal court, and the first case to reach a federal jury is now set for trial in San Francisco in February 2019. Another California state court case has been fast-tracked to be heard in March 2019 because of the condition and age of the plaintiffs. Yet another case is expected to be scheduled in Missouri state court for sometime later in 2019. The cases largely depend upon a plaintiff’s ability to convince a jury that his or her cancer was more likely than not directly caused by glyphosate. This question because controversial in 2015 when the United Nation’s World Health Organization released a report stating that the widely used herbicide is “probably carcinogenic to humans.” However, the U.S. Environmental Protection Agency issued a release in 2017 saying that its own findings demonstrate that glyphosate is unlikely to be carcinogenic in humans.
Is this pumpkin pie made of pumpkin? Thanksgiving dinner conversations often involve at least one debate for many families. Prompted by recent coverage in news outlets like the Wall Street Journal, one of the topics this year was whether grandma’s pumpkin pie is made of pumpkin, and whether it should be. At one end of the debate are those who say that pumpkin pie must be made from pumpkins, while others say that closely related squashes have a better flavor and consistency that make a pie taste the way a “pumpkin pie” should taste. Central to this debate is the status of firm-shelled, golden-fleshed sweet squash, which currently makes up a large portion of the market for “canned pumpkin.” The U.S. Food and Drug Administration (FDA) has a long-standing policy saying that labeling the golden-fleshed, sweet squash as “pumpkin” complies with the Food, Drug, and Cosmetic Act and the Fair Packaging and Labeling Act. Since 1938, the FDA has “consistently advised canners that we would not initiate regulatory action solely because of their using the designation “pumpkin” or “canned pumpkin” on labels for articles prepared from golden-fleshed, sweet squash, or mixtures of such squash with field pumpkins.” The FDA explains that allowing current labeling practice does not seem to mislead or deceive consumers. While the FDA declines to take a stand on the issue, families are free to continue to debate which ingredients make for the best pumpkin pie.
Update: The final rule concerning the listing of the rusty patched bumble bee as endangered was originally slated to go into effect on February 10, 2017, as is described below. On February 9, the Fish and Wildlife Service published a notice in the Federal Register explaining that they would abide by the Trump Administration’s 60-day regulatory freeze and delay the effective date until March 21, 2017. The Federal Register entry is available here.
Will the bee's ESA listing stand, and how might it affect agriculture?
Written by: Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
On January 11, 2017, the U.S. Fish and Wildlife Service (FWS) published a final rule designating the rusty patched bumble bee (scientific name Bombus affinis) as an endangered species, the first bee in the continental U.S. to receive this status. The rule was originally slated to go into effect on February 10, 2017. If the rule is allowed to stand, it will have a number of implications for federal agencies, farmers, and other private entities.
The final rule, found in the Federal Register at 50 CFR Part 17, includes a lengthy description of the rusty patched bumble bee. The bees have black heads, and the worker bees, as well as the male bees, have a “rusty reddish patch centrally located on the abdomen,” giving them their common name. Necessities for the species include “areas that support sufficient food (nectar and pollen from diverse and abundant flowers), undisturbed nesting sites in proximity to floral resources, and overwintering sights for hibernating queens.” Additionally, the bees prefer temperate areas. The rusty patched bumble bee was found in 31 states and provinces in the 1990s. From the year 2000 and on, the bumble bee has only been found in a diminished range of 14 states and provinces. The bumble bee has been found in Ohio since 2000, but following the overall trend, at much lower rates.
Possible reversal of the rule
Since the publishing of the final rule, the Trump Administration has instituted a regulatory freeze on administrative agencies which could push back effective dates for those regulations that have not yet gone into effect by at least 60 days. In the meantime, the Congressional Review Act (CRA) may also affect the final rule. The CRA gives Congress 60 legislative days from either the date a rule is published in the Federal Register, or the date Congress receives a report on the rule, to pass a joint resolution disapproving the rule. A signature by the President is the final step required to invalidate the rule. What is more, an agency cannot submit a rule after these steps are taken that is “substantially in the same form” as the overturned rule. Historically, the CRA has not been frequently used, as success is typically only possible when a number of events align:
- There is a new presidential administration;
- Congress and the President are members of the same party;
- The previous President was a member of the opposing party; and
- The timing of rule publication or rule reporting and Congressional calendars allow for a joint resolution within the 60-day limit.
The text of the CRA is available here. With the regulatory freeze and the possible use of the CRA, it is not clear when or even if the new rule will actually go into effect.
Importance of the rusty patched bumble bee
The rusty patched bumble bee is a pollinator species, meaning they, along with other pollinators, assist with the reproduction of flowers, crops, and grasses. According to a FWS fact sheet, in the United States, the rusty patched bumble bee and other insects’ pollination is worth $3 billion annually.
The Endangered Species Act
What exactly is the process for listing a species as “endangered?” The Endangered Species Act’s (ESA) definition of an endangered species is: “any species which is in danger of extinction throughout all or a significant portion of its range.” Accordingly, the ESA allows the FWS to designate species as endangered or threatened as long as one (or more) of five factors apply:
- (A) The present or threatened destruction, modification or curtailment of its habitat or range;
- (B) Overutilization for commercial, recreational, scientific, or educational purposes;
- (C) Disease or predation;
- (D) The inadequacy of existing regulatory mechanisms; or
- (E) Other natural or manmade factors affecting its continued existence. 16 USC 1533.
In the case of the rusty patched bumble bee, the FWS found that factors (A), (C), and (E) applied. For factor (A), which concerns loss of habitat and range, the FWS cited past encroachment by residential, commercial, and agricultural development. Additionally, agriculture has contributed to the replacement of plant diversity with monocultures, which has resulted in loss of food for the bees. What is more, the range of the rusty patched bumble bee has faced an 87% reduction, as well as an 88% drop in the number of recognized populations.
Concerning factor (C), FWS pointed to a number of diseases and parasites that have afflicted the rusty patched bumble bee. Finally, for factor (E), the FWS identified more numerous hot and dry periods, pesticide and herbicide use, and reproductive issues that have contributed to the reduction of the species. Due to its findings and the factors discussed, the FWS determined that the rusty patched bumble bee is “in danger of extinction throughout its range,” and therefore designated it as endangered.
Significance of ESA listing
After a species is labeled “endangered,” what happens next? In order to facilitate recovery of a species, the ESA also calls for, to the “maximum extent prudent and determinable,” a critical habitat designation to be made for the species. The term “critical habitat” does not apply to everywhere the species is found. Instead, “critical habitat” can be certain places both inside and outside the overall “geographical area occupied by the species” that are found to be “essential” to its preservation. In the case of the rusty patched bumble bee, the FWS has not yet determined its critical habitat.
Implications for agriculture
Under the ESA, federal agencies and private entities have different responsibilities. Federal agencies generally must make sure that any action they are involved in will not do harm to an endangered species or its critical habitat. For the most part, private entities are not affected by critical habitat unless financial aid or approval is sought from a federal agency.
Even though critical habitat concerns do not explicitly apply to private entities, the ESA does contain provisions that prohibit the importing, exporting, possession, sale, delivery, transport, shipping, receiving, or carrying of an endangered species in the United States or in foreign commerce. What is more, the ESA prohibits the “taking” of endangered species within the United States or in the ocean. “Take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,” an endangered species, or to attempt to do so (emphasis added). It is important to note that “harm” is defined as “an act which actually kills or injures fish or wildlife…includ[ing] significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavior patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.” Thus, even though the designation of an endangered species and its critical habitat does not explicitly affect private entities, the definitions of “take” and “harm,” when read together, implicitly prohibit actions that are damaging to the species or its habitat. The FWS rule defining “harm” can be found here. The government can assess penalties against those who violate these provisions.
Farmers and other private entities should be aware of the designation of a species as endangered. In the case of the rusty patched bumble bee, if the rule is allowed to stand, private landowners, including farmers, would not be allowed to “take” or “harm” the bee or destroy its critical habitat. Given the important role pollinators like the rusty patched bumble bee play in making agriculture possible, we can assume that agriculture will want to protect the species. But due to the nature of this species, it will be difficult to ascertain when a farmer’s actions do “take” or “harm” a rusty patched bumble bee. The nature of the species and the future status of the rule create much uncertainty on how agriculture will address the rusty patched bumble bee going forward.
The development of wind farms is a controversial land use issue in Ohio, as in other states. Arguments abound on both sides and revolve around private property rights, community land use planning, green energy, preservation of open landscapes and wildlife impacts. It is this last factor--impacts on wildlife--that convinced a federal court to halt a wind development project in the Appalachian mountains of West Virginia, much to the dismay of developers of the $300 million project.
The Beech Ridge wind energy project involves construction of 122 wind turbines along the ridgeline of the Appalachian mountains in Greenbrier County. About forty of the turbines are currently in the construction phase, but the federal court has issued an injunction stopping construction of any additional turbines and limiting existing turbine use to the bat's winter hibernation period. The reason: project developers failed to take seriously the issue of harm to the Indiana bat. The Indiana Bat is on the list of "endangered" species, and interference with the animal or its habitat is prohibited by the federal Endangered Species Act (ESA). The wind project developers did hire an environmental consultant to examine the situation, but the consultant repeatedly disregarded information and advice from the U.S. Fish and Wildlife Service (FWS) that would have more accurately identified the Indiana bat population. The court critized the consultant's efforts, stating that "[s]earching for bats near proposed wind turbine locations for one year instead of three, looking in one season rather than three, and using only one method to detect bats was wholly inadequate to a fair assessment." Later surveys revealed the existence of two caves within ten miles of the project that are home to hundreds of bats, including Indiana bats, and evidence suggested that nearly 7,000 bats would die each year because of the project.
Despite the existence of the bats near the project, however, the court pointed out that Beech Ridge's developers could have requested an "incidental take permit" (ITP) pursuant to the ESA. The ESA's incidental take permit mechanism could have allowed the project to proceed, but with preparation of an FWS approved Habitat Conservation Plan demonstrating that measures would be taken to minimize or mitigate adverse effects on the Indiana bat. "Indeed, the tragedy of this case is that Defendants disregarded not only repeated advice from the FWS but also failed to take advantage of a specific mechanism, the ITP process, established by federal law to allow their project to proceed in harmony with the goal of avoidance of harm to endangered species," said the court.
The Animal Welfare Institute and Mountain Communities for Responsible Energy filed the lawsuit, and produced expert testimony indicating that Indiana bats exist near the project site and that there was a very high likelihood that the turbines would kill and injure the bats. The court drew upon Benjamin Franklin in its response to the expert testimony, stating ". . . the Court concludes, by a preponderance of the evidence, that, like death and taxes, there is a virtual certainty that Indiana bats will be harmed, wounded, or killed imminently by the Beech Ridge Project . . ."
The difficulty of rendering such a decision is apparent in the court's opinion. Judge Titus expresses disappointment and frustration with the project developer's approach to the bat issue, and "reluctantly" orders the injunction. But unlike many in the wind development arena, the court does not hesitate to give credibility to the interference of wind turbines with the bat population. He recognizes that the case illustrates a clash between two federal policies: protection of species and encouragement of renewable energy development, but insists that the two policies are not necessarily in conflict because of the ESA's incidental take option and the opportunity for harmonious development. Seeking an incidental take permit is the only avenue available to help project developers resolve their "self-imposed plight," states the court. "The development of wind energy can and should be encouraged," says Judge Titus, "but wind turbines must be good neighbors."
As the Indiana bat did years ago, wind development has made its way to Ohio. The Ohio Power Siting Board is currently considering approval of several wind projects including the Buckeye Wind Project, a 70 turbine project in Champaign County that would be Ohio's largest wind development. Testimony by an environmental consultant at last month's hearings before the board focused on potential impacts of the project on the Indiana bat. According to the consultant, studies revealed no evidence of the Indiana bat in the project area. Studies in nearby Logan County in 2008 revealed the existence of Indiana bats in an area that has since been removed from the project, and another wind developer reported finding an Indiana bat in Champaign County earlier this year. The Ohio Power Siting Board may take months to decide whether to approve the Buckeye Wind Project and to indicate its conclusions about impacts on Indiana bats.
In accordance with state policy promoting renewable resource development, the Ohio Department of Natural Resources encourages wind developers to enter into a voluntary agreement to cooperatively address wildlife issues. In the agreement, ODNR promises not to pursue liability against the developer for any incidental takings of endangered or threatened species. However, ODNR's agreement cannot prevent private groups from challenging the turbines in federal court using the approach of the Beech Ridge Energy case. Should the Ohio Power Siting Board approve a project like the Buckeye Wind Project, Ohio may see its own federal court case on Indiana bats and wind development.
Read the court's December 8, 2009 decision in the Beech Ridge Energy case here or go to the Maryland District Court's webpage for the opinion and order at http://www.mdd.uscourts.gov/publications/opinions/Opinions.asp.