“Threatened” Listing for Northern Long-Eared Bats Endangered by District Court Decision: What You Need to Know

Locke Lord LLP
Contact

Locke Lord LLP

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.

What Happened?
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.

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.

© Locke Lord LLP | Attorney Advertising

Written by:

Locke Lord LLP
Contact
more
less

Locke Lord LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.