Washington challenges gutting of federal Endangered Species Act protections
Attorney General Nick Brown today is co-leading a coalition of 21 attorneys general in two lawsuits to maintain protections for endangered and threatened species under threat by the federal administration.
One was filed against the U.S. Fish and Wildlife Service (FWS) and another against FWS and the National Marine Fisheries Service (NMFS). The suits challenge new rules under the Endangered Species Act that make it easier for the federal government, private companies or individuals to modify or degrade the habitats of listed threatened and endangered species and leave threatened species without core protections, undermining Congress’ mandate when it passed the law.
“The federal government’s attempt to gut the Endangered Species Act threatens the habitats of orcas, sockeye salmon, and other endangered species that are part of our economy, culture, and way of life,” said Brown. “These illegal actions ignore the will of Washingtonians and people across the United States, who overwhelmingly support protecting endangered species.”
The ESA protects more than 1,600 plant and animal species and millions of acres of critical habitat nationwide. Since the law’s passage, 99% of protected species have been saved from extinction, including the California condor, the grizzly bear, the peregrine falcon, the grey whale and the bald eagle.
These federal protections are essential to Washington’s conservation of the Southern Resident killer whale population. The Southern Resident population has declined since 1995, falling from 98 whales to 74 whales today. They were first listed as “endangered” under the ESA in 2005. The ESA’s habitat protections also play a critical role in conservation of Washington’s endangered and threatened salmon populations. These populations continue to face threats from habitat destruction, which would only increase if these rules go into place.
The coalition’s first lawsuit challenges the rescission of the longstanding regulatory definition of “harm.” Previously, the rule defined harm to include “significant habitat modification or degradation” that actually kills or injures wildlife by damaging species’ natural habitats and significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. Rescinding this definition eliminates the ESA’s primary mechanism for protecting the habitats of listed species and makes it easier for them to be damaged or destroyed, even when that destruction ultimately threatens the survival of protected species.
The second lawsuit challenges two rule changes by FWS that reduce protections for threatened species and create a new process for designating areas as “critical habitat.” The first rule rescinds FWS’s regulations that automatically protect all newly listed threatened species, substantially increasing the risk newly threatened species will become endangered. The second rule weakens the ESA’s remaining mechanism for protecting species’ habitats by establishing a new process for designating areas as “critical habitat.” That new process makes it much easier for FWS to decline to include areas—in particular federal lands—as “critical habitat” even when those areas are relied on by endangered species. Research shows habitat loss is the primary cause of species decline and the loss of these protections will harm Washington’s imperiled species.
The coalition argues these rules are also contrary to the Administrative Procedure Act and National Environmental Policy Act.
Brown co-led these lawsuits with the attorneys general of California, Maryland, and Massachusetts. The suits were also joined by the attorneys general of Arizona, Colorado, Connecticut, Delaware, the District of Columbia, Hawaiʻi, Illinois, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Wisconsin.
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