Federal Court: States’ Case Against Trump ESA Changes Can Proceed

The wolverine (Gulo gulo) is among the species that would likely be affected by changes to Endangered Species Act regulations. Courtesy Wikimedia – User: MatthiasKabel – own work, CC BY 2.5, https://commons.wikimedia.org/w/index.php?curid=1493185

A federal judge refused Monday to dismiss a multi-state lawsuit aimed at blocking the Trump regime’s effort to administratively negate significant portions of the Endangered Species Act.

Judge Jon S. Tigar of the U.S. District Court for the Northern District of California rejected arguments by the U.S. Department of Justice that 20 states and the District of Columbia lack standing to challenge the ESA regulations and that the dispute is not ripe for judicial review.

Tigar cited Massachusetts v. U.S. Environmental Protection Agency, a landmark 2007 ruling of the U.S. Supreme Court that granted states “special solicitude” to sue on behalf of their residents in environmental law cases.

Lawyers representing Secretary of the Interior David Bernhardt and other Trump apparatchiks claimed that the dispute cannot be adjudicated because the regulations, while final, have not yet been applied. The regime sought to persuade Tigar that he should use his discretion to refuse to hear challenges to any regulation that has not been specifically implemented to a particular set of facts. 

The three regulations in dispute were finalized in Aug. 2019. Together they will, if not blocked in court, fundamentally weaken federal wildlife conservation policy. Among the changes imposed by the regulations are:

• species listed as “threatened” will no longer automatically receive the same protections as do species listed as “endangered;”
• the meaning of the term “foreseeable future” will be determined in each case at the discretion by the U.S. Fish and Wildlife Service and/or National Oceanic and Atmospheric Administration;
• FWS and NOAA will consider only threats to a species that are “likely” to occur during the “foreseeable future,” a change that may allow the agencies to ignore threats resulting from climate change; and
• FWS and NOAA will be able to consider economic data when deciding whether to list a species as endangered or threatened.

Tigar has been a federal judge since 2013.

The states’ case is State of California v. Bernhardt, No. 19-cv-06013-JST. 

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