California Attorney General Jerry Brown has sued the Department of Interior, the Department of Commerce, the Fish and Wildlife Service, and the National Marine Fisheries Service in an attempt to block revisions to regulations implementing the Endangered Species Act (ESA). The claim is similar to several others already filed by private environmental groups, and seeks declaratory judgment and injunction regarding new regulations that limit the environmental review process required for federal agency projects and restrict the effects evaluated in a review.
Brown argues that the new regulations exceed the Services’ authority and are contrary to the purposes of the ESA. The complaint addresses Brown’s three primary concerns with the revisions:
- “The regulations eliminate [the ESA-required] consultation process for many federal agency actions” by exempting actions that an agency independently determines will not have an effect on endangered or threatened species or their critical habitat.
- The regulations “restrict the types of effects that must be evaluated and mitigated” by only requiring agencies to consider the indirect effect of an action if it would be the “essential cause” of adverse impact upon an endangered or threatened species or their critical habitat.
- The regulations “replace the current statutorily-minded scientific consultation process with the self-interested and unscientific decisions of federal agency project proponents . . .”
By limiting the review of indirect effects to “essential causes” of adverse impact, the new regulations effectively remove consideration of greenhouse gas (GHG) emissions from the consultation process. The recent addition of the polar bear as a threatened species could have demanded an evaluation of the indirect effect of GHG emissions upon climate change and the polar bear’s critical habitat. If this lawsuit succeeds in invalidating the revisions, GHG emissions could again have to be evaluated for climate change effects under the ESA consultation process.
Brown also takes issue with the method by which the Services adopted the new regulations, arguing that they did not follow the procedures set forth in the National Environmental Policy Act. He alleges that they wrongfully concluded the regulations would have no significant environmental impact, provided no credible analysis in their environmental assessment, provided only ten days for public comment, and gave insufficient responses to the 235,000 public comments they received.