On January 28, the D.C. District Court issued a significant decision in litigation brought by a group of environmental organizations challenging the U.S. Fish and Wildlife Service’s (“FWS”) 2015 listing of the northern long-eared bat (“NLEB”) as “threatened” under the federal Endangered Species Act (“ESA”) (Center for Biological Diversity, et al. v. Everson, et al., and Defenders of Wildlife et al. v. Everson, et al.). The court’s decision will come as an unwelcome surprise to the energy industry and other commercial interests, as it held that the FWS’s decision to list the northern long-eared bat as “threatened” rather than “endangered” was arbitrary and capricious, and remanded the listing decision to the FWS for a new determination on the species’ status. While the court did not vacate the threatened listing, thereby leaving the status quo in effect for now, the decision may yet have significant implications for developers of energy and infrastructure projects throughout the NLEB’s 37-state range in both the near and long-term.
Relevant Aspects of the ESA
The ESA provides for two distinct classifications for species that the FWS determines qualify for protection under the statute: endangered and threatened. A species is considered endangered if it is “in danger of extinction throughout all or a significant portion of its range.” A species is considered threatened if it “is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.” Species listed as endangered receive broad protection from “take” under Section 9 of the ESA, meaning killing, harming or harassing individuals of the species, among other things.
The ESA requires the FWS to make its determination whether to list a species, and if so whether to classify it as endangered or threatened, “solely on the basis of the best scientific and commercial data available.” Species listed as threatened are not entitled by statute to the protections against take contained in Section 9, but Section 4(d) of the ESA allows the FWS to adopt “special take rules” extending the Section 9 take prohibition to threatened species. Until the recent revisions to its ESA regulations adopted in September 2019, the FWS had in place a “blanket” 4(d) rule that automatically extended the Section 9 take prohibition to all species listed as threatened, and would issue species-specific 4(d) rules to lift the prohibition against “incidental take” of a species in certain situations.
What’s the Case About?
The northern long-eared bat is a small bat with a range that extends across 37 states, the District of Columbia, and all Canadian provinces. Despite its extensive range, NLEB populations have dropped precipitously since 2006 when a fungal disease known as white-nose syndrome (“WNS”) first emerged. WNS infects NLEB and many other species of bats while they hibernate in caves and causes widespread mortality among the bat colonies. The devastating effects on NLEB populations and rapid spread of the disease prompted the Center for Biological Diversity (”CBD”) to petition the FWS to list NLEB under the ESA in 2010. In October 2013, in response to that petition, the FWS issued a proposed rule to list the NLEB as endangered. In January 2015, the FWS issued an interim 4(d) rule for the NLEB in anticipation of a potential threatened listing. The interim 4(d) rule authorized incidental take of NLEB from only a few very narrow categories of activities. In April 2015 the FWS issued its final rule listing the NLEB as threatened rather than endangered. Suddenly, a wide variety of energy and infrastructure projects throughout the Midwest and Northeast such as wind farms, installation of new pipeline and transmission lines, and real estate development presented a risk of incidental take due to direct mortality of NLEB or indirectly through clearing of occupied habitat. This required project developers to pursue or consider pursuing incidental take permits under Section 10 of the ESA, a process which takes multiple years and can easily run into the millions of dollars for surveys, permitting costs, and necessary avoidance, minimization and mitigation measures.
In January 2016, less than a year after listing the NLEB as threatened with the interim 4(d) rule, the FWS issued a much broader 4(d) rule that significantly limited the applicability of the ESA’s take prohibition to the species. The new rule was based largely on the rationale that WNS, and not take of individuals or habitat due to commercial or industrial development, was the primary cause for the species’ decline. Under the broader 4(d) rule, which remains in effect today, incidental take of NLEB is not prohibited except within areas designated as the “WNS zone,” which consists of all counties in which WNS has been detected plus a 150-mile buffer around each county on the perimeter of the zone. Within the WNS zone, incidental take is only prohibited from activities occurring within a NLEB hibernaculum (or that could alter the entrance to or conditions within a hibernaculum), or activities taking place during the pup season (June 1 through July 31) that involve cutting or destroying a known maternity roost tree, or removal of trees within 150 feet of a known maternity roost tree or a quarter-mile radius of a hibernaculum.
The broader 4(d) rule effectively eliminated the need for incidental take authorization for the vast majority of development activities taking place throughout the species’ range. Incidental take resulting from spinning wind turbine blades, or clearing of occupied habitat for transmission lines, pipelines, or real estate development, no longer requires an ITP, greatly reducing the regulatory and economic impact of the species’ listing on energy and infrastructure development.
The Plaintiffs, a group of environmental organizations including CBD, the Sierra Club and Defenders of Wildlife among others, brought two challenges against the FWS. First, they challenged the FWS’ decision to list the NLEB as threatened with an interim 4(d) rule rather than endangered. Second, they challenged the issuance of the broader 4(d) rule. The court bifurcated the briefing on the two challenges in 2017, and its decision this week addressed only the first of the two challenges.
In response to motions to dismiss filed by both the Plaintiffs and the FWS on the first challenge, the court found that the FWS’ decision to list the NLEB as threatened was arbitrary and capricious. The court held that the FWS had failed to use the best available science in making its decision or to articulate a rational connection between the facts found and the choice made. It also found fault with the process the FWS followed in making its determination. Specifically, despite originally proposing to list the NLEB as endangered, FWS made the decision to list the species as threatened before the public comment period had closed, and then extended the public comment period without disclosing the new determination, robbing the Plaintiffs and the public of any meaningful ability to comment. Finally, the court determined that a policy the FWS relied upon known as the SPR Policy, which allowed it not to have to consider whether a species is endangered in a significant portion of its range if it first finds that the species is threatened throughout all of its range, was contrary to the clear intent of Congress to establish differing levels of protection for the two categories of species under the ESA. Accordingly, the court vacated the SPR Policy and remanded the threatened listing back to the FWS for a new determination. Notably, the court did not vacate the threatened listing, which would have left the species unprotected by the ESA.
What Now, and What’s Next?
Because the threatened listing and the broad 4(d) rule remain in effect, nothing changes immediately when it comes to protections for the NLEB. Developers and owners or operators of energy and infrastructure projects continue to be subject to the same rules that have been in place since the broader 4(d) rule was issued in January 2016. While that is good news in the short term, the outlook in the medium and long-term is not as clear, and the risk that the regulatory landscape will change may be greater than it first appears.
At first blush, it is tempting to assume that the FWS will issue a new listing rule that retains the threatened determination. After all, the current Administration has listed fewer species than almost any since the ESA was enacted, and the court did not find that the best available scientific data could not support a threatened determination, just that the FWS failed to articulate how it did. A new listing rule that articulates a more rational connection between the data and the determination, and a rulemaking process that cures the procedural defects identified by the court, could result in a final rule that can withstand further challenges.
Upon reflection, however, things may not be so easy. In developing new listing determination, the FWS will have to rely upon the best available scientific data, and there is considerably more data available regarding the effect of WNS now than in the 2013-2015 period when the original analysis was conducted. WNS has continued to spread throughout the continent at a faster rate than originally projected, and populations have continued to decline. The FWS may have a more difficult time concluding that the NLEB is not in danger of extinction currently, instead of in the foreseeable future. This is especially so because the court vacated the SPR Policy, meaning that the FWS will have to consider whether the species is endangered in a significant portion of its range, even if it has determined that across its entire range a threatened listing would be more appropriate.
If the FWS determines on the basis of the best available scientific data that the NLEB should now be listed as endangered and not threatened, the 4(d) rule would no longer apply and incidental take of NLEB from any kind of activity throughout the species’ range would require an ITP. The result would be significant costs and delays for energy and infrastructure projects throughout much of the Midwest, the Northeast, and potentially parts of the Southeast and West as well. Although the current Administration is disinclined to make any new endangered determinations, developing a scientifically supportable listing determination that can withstand further challenge will take time, and the eventual proposed rule will need to go through public notice and comment. That process is potentially to extend past the November elections and likely into next year, raising the possibility that it may be a different administration with different priorities making the final determination.
The need for a new listing determination notwithstanding, the more immediate risk to project developers, owners and operators may be the court’s upcoming decision on the Plaintiffs’ second challenge, the challenge to the current, broad 4(d) rule that exempts most incidental take from the Section 9 take prohibition. It is unclear when the court will rule on that challenge, but there is reason to believe that the court may vacate the 4(d) rule, as doing so would protect the NLEB as if it were endangered (the FWS’ recent rescission of the blanket 4(d) rule applies only prospectively, to newly listed species, and thus not to the NLEB). This would enable the court to provide the species a lifeline until the FWS makes a valid determination on its status. Although the court would need to find the 4(d) rule defective in some way in order to do so, the fact that the court already found the listing determination defective suggests this is a genuine possibility. If the 4(d) rule is vacated, the ESA’s prohibitions against incidental take would take effect immediately, creating significant compliance and litigation risks for existing and planned projects throughout the species’ range.
While this case and the remand of the listing rule bear close watching, project developers, owners and operators should begin preparing for the possibility that incidental take of northern long-eared bats will no longer be legal without authorization.