Energy & Environmental Law Blog

Energy & Environmental Law Blog

Analyzing the critical energy and environmental issues of the day

Category Archives: ESA

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Breaking Bad Habitats?

Posted in ESA
As reported in this space, in November 2018, the U.S. Supreme Court remanded to the Court of Appeals for the Fifth Circuit a determination by the U.S. Fish & Wildlife Service on critical habitat for the dusky gopher frog. The issues for the Fifth Circuit on remand would be whether habitat in which the dusky… Continue Reading

Supreme Court Decides Critical Habitat Must Be Habitat

Posted in ESA, Federal
In a unanimous decision (with Justice Kavanaugh not participating), the Supreme Court on November 27, 2018, remanded a controversial Endangered Species Act (ESA) decision for further consideration by the Fifth Circuit Court of Appeals. Weyerhaeuser v. U.S. Fish and Wildlife Service (FWS) The Court held that “critical habitat” must be “habitat.” The Court agreed that… Continue Reading

Trump Track: Presidential Memo to Boost Western Water Projects—Can It Succeed?

Posted in ESA, NEPA, Trump Track
The Keystone Dam in Oklahoma with all the gates open and flowing a lot of water. Shot at Twilight.On October 19, President Trump issued a “Memorandum Promoting the Reliable Supply and Delivery of Water in the West.” The memorandum calls for streamlining federal water infrastructure development and operations, apparently by skirting environmental and other administrative processes. As previously noted, the administration is intent on weakening the laws controlling federal water projects, but that… Continue Reading

Court Rules DOJ Enforcement Directive Arbitrary and Capricious

Posted in ESA
A U.S. District Court in Arizona has ruled that DOJ’s narrow interpretation of the requirements for a criminal misdemeanor under the Endangered Species Act went beyond unreviewable prosecutorial discretion, and its policy was arbitrary and capricious and in violation of the Administrative Procedure Act. WildEarth Guardians v. U.S. Department of Justice The Endangered Species Act… Continue Reading

Tenth Circuit Reverses Ruling Limiting Endangered Species Act Jurisdiction Over Intra-State Species

Posted in ESA
The Tenth Circuit U. S. Court of Appeals dashed the hopes of property rights activists by overturning a district court decision that the Fish and Wildlife Service (FWS) had no jurisdiction under the Endangered Species Act (ESA) over intra-state species located on non-federal lands. In People for the Ethical Treatment of Property Owners v. USFWS, plaintiffs… Continue Reading

FWS Application of “Baseline” Rule Minimizes Economic Impact of Critical Habitat Designation

Posted in ESA, Federal
By Gerald George The Endangered Species Act (ESA) explicitly prohibits the consideration of economic impacts in making the decision to designate a species as “endangered.”  However, consideration of such factors is allowed in the designation of “critical habitat” for that species, with the listing agency to address economic, national security and other impacts before designating… Continue Reading

Recent Energy and Environmental Developments in Alaska

Posted in ESA, Oil & Gas, Water Law
From our Anchorage office, some recent developments in Alaska of note: Polar bears.  Comments are being taken on a proposed special rule and draft environmental assessment by the U.S. Fish and Wildlife Service.  When the polar bear was listed as a threatened species pursuant to the Endangered Species Act, the Fish and Wildlife Service proposed… Continue Reading

Feds Seek Ideas to Promote Voluntary Habitat Conservation

Posted in ESA, Federal
The U.S. Fish and Wildlife Service (FWS) has requested public comment on potential new incentives to encourage landowners to voluntarily protect at-risk plant and animal species. This project is the result of a regulatory review ordered by President Obama. After evaluating its current rules governing voluntary conservation programs, FWS concluded that these rules are inconsistent, create… Continue Reading