President Biden Vetoes Attempt to Undo ESA Protections for Lesser Prairie-Chicken and Northern Long-Eared Bat

Nossaman LLP

On Tuesday, September 26, President Biden vetoed two Republican-sponsored joint resolutions, S.J. Res. 9 and S.J. Res. 24, seeking to undo Endangered Species Act (ESA) protections for the lesser prairie-chicken (LEPC) (Tympanuchus pallidicinctus) and northern long-eared bat (NLEB) (Myotis septentrionalis) that became effective in January 2023.

S.J. Res. 9 would have undone the U.S. Fish and Wildlife Service’s (Service) final rule listing the Northern distinct population segment (DPS) of the LEPC as threatened with a section 4(d) rule and the Southern DPS as endangered. The LEPC is a grassland bird found in southeastern Colorado, western Kansas, eastern New Mexico, western Oklahoma, and the Texas Panhandle. The final rule concluded the LEPC is facing habitat loss and fragmentation, with the Southern DPS particularly threatened by severe droughts. President Biden cited the LEPC’s diminishing habitat, declining populations, and the conservation agreements for the species in place as reasoning for his veto.

S.J. Res. 24 would have undone the Service’s final rule listing the NLEB as endangered. The NLEB is a bat species found in 37 states, the District of Columbia, and much of Canada, facing “white-nose syndrome” (WNS), a fungal disease driving the decline of the NLEB and many other bat species. In his statement on the veto, President Biden pointed to the declines of 97 to 100 percent in affected NLEB populations as a result of WNS, and the ecological and economic benefits of bats for their roles in pest control and pollination, as factors supporting his decision.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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