Arkansas AG: Maybe President Trump will halt federal agency overreach

Friday, March 10, 2017 8:00 am

By Lindsey Bailey
AAC General Counsel

Arkansas Attorney General Leslie Rutledge has made it no secret that she was not a fan of the Obama administration and its environmental agencies’ rules that set forth unprecedented constraints over the use of our country’s water, minerals and other natural resources. One common complaint of the Attorney General has been the refusal of the Obama administration and its agencies to consult or give proper deference to the states or their claims on behalf of their citizens, specifically their farmers, that the costs of implementing the new environmental rules were not given adequate consideration.

One of the Attorney General’s most notable victories in slowing, if not halting, costly and unlawful environmental regulations occurred in June 2015, when the U.S. Supreme Court issued its opinion in Michigan v. EPA. The court ruled that the Environmental Protection Agency overstepped its authority when it found that regulation of the nation’s power plants was “appropriate and necessary,” and issued standards that, by its own estimates, would cost 1,600 to 2,400 times more than the quantifiable benefits of the regulations. This opinion was a considerable victory for Arkansas and 22 other states, affirming that agencies such as the EPA “must operate within the bounds of reasonable interpretation” when implementing laws and that the EPA “strayed far beyond those bounds when it read [The Clean Air Act] to mean that it could ignore cost when deciding whether to regulate power plants.”

Today, Arkansas, under the leadership of Attorney General Rutledge, is once again among those states leading the effort to thwart unwarranted federal control over environmental issues. Arkansas and Alabama are leading 16 other states in a lawsuit filed in an Alabama district court against the U.S. Fish and Wildlife Service, among others, asking the court to vacate and enjoin the Final Rules issued by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (“the Services”) in February 2016.

The Endangered Species Act (ESA) was originally passed in 1973 to protect and recover endangered species and the ecosystems in which those species live. The ESA gave the services the authority to administer the act, including promulgating rules as necessary to carry out the goals of the act. One important authority the ESA confers to the services is the authority to designate certain lands as “critical habitats.” Historically, critical habitats can fall under one of two classifications: occupied or unoccupied. The first type of critical habitat are areas that are presently occupied by an endangered or threatened species that contain physical or biological features that are “essential to the conservation of the species” and “which may require special management considerations or protections.” Furthermore, an area that is currently unoccupied by an endangered or threatened species may be designated as a critical habitat if the services determine that “such areas are essential for the conservation of [such a] species.”

The Final Rules promulgated by the services would amend the definition of “critical habitat,” specifically those that are not presently occupied by an endangered or threatened species. Historically, unoccupied areas could be designated as critical habitat “only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” Then, if such designation is granted, federal agencies must consult with the services to “ensure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species” (emphasis added). Traditionally, the ESA has respected the states’ rights to manage and control their respective lands and waters, acknowledging that “[u]nless preempted by Federal authority, States possess primary authority and responsibility for protection and management of fish, wildlife, and plants and their habitats.” The ESA directs that the Services should “cooperate to the maximum extent practicable with the States.”

However, the lawsuit against the services by 18 states alleges:

If allowed to stand, the Final Rules would allow the Services to exercise virtually unlimited power to declare land and water critical habitat for endangered and threatened species, regardless of whether that land or water is occupied or unoccupied by the species, regardless of the presence or absence of the physical or biological features necessary to sustain the species, and regardless of whether the land or water is actually essential to the conservation of the species.

The lawsuit alleges that the Final Rules contradict current ESA requirements for occupied areas to be designated as critical habitat, but furthermore, the complaint alleges that the Final Rules “would allow the Services to designate areas as unoccupied critical habitat almost without limitation,” even though the original statutory language of the ESA clearly contemplates meeting a higher threshold for unoccupied areas than for presently occupied areas. It further claims that the Final Rules would allow the services to designate almost any activity as potentially destroying or adversely modifying a critical habitat if it might prevent an eventual development of physical or biological characteristics necessary to support an endangered or threatened species in an area not presently occupied by the species. However, the statutory language of the EPA is “present-focused.” It only prohibits activities that do result in the destruction or adverse modification of the habitat of endangered or threatened species — not activities that might one day prevent an endangered or threatened species from inhabiting an area that the species does not currently inhabit. Attorney General Rutledge and the 17 other states listed in the lawsuit ask the court to vacate the Final Rules and enjoin the states from enforcing them.

In addition to the lawsuit, Attorney General Rutledge joins 13 other state attorneys general in signing a letter to President Trump, dated Jan. 17, 2017, asking the administration to immediately repeal the Final Rules. The letter echoes from the lawsuit the burden put on states in complying with these rules when undertaking construction projects [transportation projects, pipeline construction and maintenance, forest and storm water management, and other infrastructure operations], as well as when issuing permits for herbicides and pesticides. If Trump’s administration acts swiftly to repeal the Final Rules, then action by the court would become unnecessary. If not, it will be up to the courts to either follow the precedent set forth in Michigan v. EPA, or alternatively, find that the rules were in fact within the scope of the ESA’s statutory scheme.

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