In a decision with significant potential implications for infrastructure construction projects, the U.S. District Court for the District of Columbia recently remanded, but did not vacate, the Fish and Wildlife Services’ (“FWS”) 2015 decision to list the northern long-eared bat as threatened under the Endangered Species Act (“ESA”). The Court also vacated a component of the FWS and National Marine Fisheries Services’ (collectively, “Services”) significant portion of its range policy (the “SPR Policy”) regarding how to evaluate whether a species is endangered. The SPR Policy, in place since 2014, formed the basis for other listing decisions and its vacatur has implications beyond the long-eared bat.

According to the Court, the FWS did not adequately explain why threats facing the species warranted a listing as threatened rather than endangered. In particular, the court found that the FWS did not adequately support its conclusion that a threatened designation was supported by the fact that 40% of the bat’s range was unaffected by white nose syndrome. The Court cited the FWS’ own statements that the unaffected portion of the bat’s range had a much lower population density. The Court also found that the FWS impermissibly omitted consideration of the cumulative threats facing the species. The Agency’s justification for the threatened listing relied on the effects of white noise syndrome, to the exclusion of other threats. Finally, the Court found that the FWS had impermissibly prevented the public from submitting meaningful comments by reaching its decision before the close of the public comment period. The threatened listing and the related 4(d) rule (explained in a previous blog post) will remain in place while the FWS reconsiders the listing decision.

As to the Court’s vacatur of a component of the SPR Policy, it has potential implications for numerous other threatened listing decisions, including the Gunnison sage-grouse and the West Indian manatee. The ESA defines “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). Under the 2014 SPR Policy, the Services do not analyze whether a species is endangered in a significant portion of its range once it is determined that the species is threatened throughout all of its range. According to the Court, this practice violates the plain language of the ESA by reading the phrase “significant portion of its range” out of the definition of “endangered.”

If the FWS determines on remand that the northern long-eared bat should be listed as endangered, it is possible that any kind of activity that negatively affects individuals or habitat for the bat throughout the species’ range would require an incidental take permit. This could result in significant costs and delays for energy infrastructure projects throughout much of the Northeast, the Midwest, and potentially parts of the Southeast and West as well. Notably, the Court has not ruled on a separate challenge in the case to the current 4(d) rule, which exempts most incidental takes from the Section 9 prohibition. If the Court were to vacate the 4(d) rule as arbitrary and capricious, the ESA’s prohibitions against incidental take would be immediately effective, potentially resulting in compliance and litigation exposure for existing and planned projects in the species’ range.