Biden Administration Asks For Agency Remand in Case Challenging Trump-ERA ESA Rule Changes

After the U.S. Fish and Wildlife Service and the National Marine Fisheries Service announced their intention to roll back the 2019 Endangered Species Act (ESA) rule changes in June, the Services moved for remand of the rules without vacatur. The motion says that the requested equitable relief is legally and factually warranted and will assuage the states’ and environmental groups’ concerns that gave rise to the lawsuit.

The motion explains that the plaintiffs challenged several modifications made during the Trump presidency easing ESA strictures. The plaintiffs said that the changes violated the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), and the ESA, generally contending that they suffered harm because the rule changes undermine the conservation aims of the ESA.  

In August, the Services moved for a stay of the Oakland, California federal suit to allow them to complete their rulemaking processes in accordance with the APA. The court denied the motion in early October, finding a possibility of harm from continued implementation of the 2019 rules. Shortly thereafter, the plaintiffs re-filed their motions for summary judgment.  

In turn, last week’s filing responds to those summary judgment motions by arguing that the court need not reach the merits of the case because the Services’ voluntary remand request will resolve the plaintiffs’ claims. The filing details the defendants’ myriad concerns with the 2019 rule changes.

For example, the Services point to one modification removing the statutory language that species listing will occur “without reference to possible economic or other impacts of such determination.” The defendants said that removal of this phrase could create a risk that economic information influences listing determinations, running afoul of the ESA’s purpose.

In addition, the Services argued that the requested relief may and likely would be granted at a later stage of the litigation anyway. By granting the motion now, the parties can be spared the additional time and cost expenditure of protracted litigation while the Services use their expertise to address the issues identified with the current rules.