Endangered Species Law & Policy

On May 20, 2024, the U.S. Fish and Wildlife Service (Service) published a final rule listing the dunes sagebrush lizard (Scleroperus arenicolus) (DSL) as endangered (Final Rule) under the Endangered Species Act (ESA). In the Final Rule, the Service identifies habitat loss and fragmentation of dunelands associated with oil and natural gas production and frac sand mining as the primary threat to the species, with climate change causing additional impacts.

The Service received more than 18,000 comments on its proposed rule to list the DSL, with many urging the Service not to list the ...

On May 19, 2022, the Center for Biological Diversity (CBD) filed a lawsuit in the U.S. District Court for the District of New Mexico, challenging the U.S. Fish and Wildlife Service’s (Service) failure to make a timely 12-month finding on the group’s petition to list the dunes sagebrush lizard (Sceloporus arenicolus) (DSL), which was submitted to the agency in 2018.

The DSL is no stranger to controversy. In 2002, CBD and others petitioned the Service to list the DSL due to alleged threats to the species’ habitat caused by oil and gas production. In 2004, the Service determined that ...

On February 9, 2022, the U.S. District Court for the District of Colorado found that the Bureau of Land Management (BLM) violated the Endangered Species Act (ESA) when it failed to reinitiate consultation with the U.S. Fish and Wildlife Service (Service) prior to approving oil and gas leases. BLM had issued the leases for parcels of land in Southwest Colorado located within Gunnison sage-grouse (Centrocercus minimus) habitat and other proposed and existing areas of environmental concern.

The ESA requires federal agencies to review federal actions “at the earliest possible time ...

On August 11, 2021, the U.S. Court of Appeals for the Ninth Circuit granted partial vacatur of an appeal brought by the U.S. Army Corps of Engineers (Corps) challenging a district court decision to vacate and enjoin use of the 2017 version of nationwide permit 12 (NWP 12).

The underlying lawsuit was brought by Northern Plains Resource Council against the Corps over the Corps’ authorization of impacts to waters of the United States under NWP 12 in connection with the Keystone XL pipeline. In April 2020, the U.S. District Court for the District of Montana vacated NWP 12 throughout the ...

Linear infrastructure projects, including oil and gas pipelines, electric transmission lines and transportation, have faced a number of regulatory challenges over the last year. Some of these challenges stem from changes in regulatory schemes, adverse court holdings or drastically shifting policy initiatives. Others result from the uncertainty inherent in pending listing decisions under the Endangered Species Act, updates to the Nationwide Permitting Program under the Clean Water Act, the ever-changing definition of Waters of the United States and the Biden ...

Linear infrastructure projects, including oil and gas pipelines, electric transmission lines and transportation, have faced a number of regulatory challenges over the past year, starting with last summer’s Endangered Species Act (ESA) amendments. Some of these challenges stem from changes in regulatory schemes or adverse court holdings, while others stem from uncertainty of pending ESA listing decisions and other actions. 

In our recent webinar concerning Adapting Linear Infrastructure Projects to Changing Regulatory Frameworks, we discussed the path for energy providers to move forward and reduce the risk that projects may be delayed or scrapped down the road. One of the topics we covered was the 2019 regulatory amendments to the Endangered Species Act (ESA). In the following video clip from the webinar, we review some of the revised definitions and updated language in the new version of the regulations.

If you would like to view the full webinar ...

We recently recorded a podcast as part of the Environmental Law Institute’s (ELI) People Places Planet Podcast series “Engage the Experts.” In our recent discussion entitled “The Shifting Landscape of Renewable Energy Development,” we discuss recent changes in environmental regulations and related court decisions that are impacting project development, as well as what this shifting terrain means for the development, expansion and maintenance of renewable energy technologies. Tune in to learn about what recent regulatory and judicial developments mean for ...

Please join us for a complimentary webinar on July 30, 2020 from 11:00 a.m. – 12:30 p.m. PT, where we will discuss the path for energy providers to move forward and reduce the risk that projects may be delayed or scrapped down the road. We will examine...

On October 17, 2011, U.S. District Judge Sullivan issued two opinions in the Polar Bear litigation previously blogged about here.  In the first opinion (pdf), Judge Sullivan held that the U.S. Fish & Wildlife Service violated the National Environmental Policy Act (NEPA) by issuing a rule under section 4(d) of the Endangered Species Act (ESA) regarding take of the threatened Polar bear (Ursus maritimus) without conducting an environmental assessment. 

As previously reported here, the 4(d) rule for the polar bear sets forth those measures and prohibitions the Secretary of Interior deems necessary and advisable for the conservation the polar bear, but it has the effect of specifically prohibiting the federal government from using the polar bear's threatened status to regulate GHG emissions of activities that occur outside the polar bear’s range.  Earlier this year, Judge Sullivan upheld the Service's definition of "endangered" and its decision to list the polar bear as threatened.

Until the Service completes its analysis of the 4(d) rule under NEPA, an interim 4(d) rule issued in May 2008 remains in place.  Because the interim rule has the same effect as the final rule, the polar bear will continue to receive the same protections.

In the second opinion (pdf), Judge Sullivan held that the Service did not abuse its discretion when it determined that the polar bear is a "depleted" species under the Marine Mammal Protection Act (MMPA), and therefore sport-hunted polar bear trophies are not eligible for importation.

The Court also held that the Service did not abuse its discretion when it refused to process applications to import sport-hunted trophy polar bears that were pending at the time the Service determined that the species is depleted.   The Service stopped processing the applications because it determined that the applicants had not established that importing sport-hunted trophies would "enhance" the status of the polar bear by increasing the population or otherwise contributing to the recovery of the species.  Thus, the applications do not qualify for an exception to the MMPA's general ban on importing sport-hunted trophies of depleted marine mammals.

In an article published in Yale Environment 360 on July 22, 2010, Todd Woody chronicles the ongoing campaign by various environmental organizations to use the Endangered Species Act to compel the U.S. Fish and Wildlife Service and National Marine Fisheries Service to regulate greenhouse gas (GHG) emissions.

The article, Enlisting Endangered Species As a Tool to Combat Warming, recounts the perils facing the American Pika, previously blogged about here,  to illustrate the broader strategy aimed at forcing the Services to regulate GHG emissions.

As noted in our blog post ...