Multi-state lawsuit takes aim at Endangered Species Act

Alabama Attorney General Luther Strange has taken point in a multi-state lawsuit challenging new federal rules he says would broadly expand the definition of “critical habitats” for endangered or threatened species in the United States. The ESA was intended to protect a number of plant and animal species that were faced with extinction at the time it was passed, and a critical component of the legislation dealt with the protection of areas deemed “critical habitat” for those species...However, in the late 1970s, amendments to the ESA were added after the Supreme Court’s interpretation of the law resulted in the suspension of a federally funded Tennessee dam project Congress had already put more than $100 million into. According to the complaint, those amendments were “intended to reform the statute and provide limits to its reach” by adding specific definitions for critical habitat and any “adverse modifications” that could negatively impact those areas. As a result, critical habitat under the ESA was defined as a specific area “occupied by a species at the time [it’s] listed” as endangered. Such habitat must contain “physical or biological features essential to the conservation of the species” that require special “considerations or protections.” It’s even more difficult to classify an area as “critical habitat” if it’s unoccupied by an endangered species, as it requires the federal services to prove those unoccupied areas are “essential for the conservation of the species.” However, in February, the services announced plans to amend those regulations, which among other things, would expand the definition “critical habitat” to include areas that might not even be used by a threatened species until some point in the “foreseeable future.” According to Strange, the rules would give the federal government “virtually unlimited power” to declare an area critical habitat for an endangered species regardless of whether the species occupies the area — even if that area is unable to sustain the species to begin with...more