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Attorney General William Tong

10/09/2020

Attorney General Tong Opposes Trump Administration Proposal To Exclude Critical Habitat From Endangered Species Act Protections

(Hartford, CT) -- Attorney General William Tong this week joined a multistate coalition filing a comment letter opposing the U.S. Fish and Wildlife Service’s (FWS) proposal to establish a new, unlawful process for excluding areas from critical habitat designations under the federal Endangered Species Act. If finalized, the proposal is likely to drastically reduce the areas protected as critical habitat, further endangering the conservation of our nation’s most imperiled species. In the comment letter, the coalition of 17 attorneys general argue that FWS’s proposal is contrary to the plain language of the Endangered Species Act and arbitrarily limits its ability to protect endangered or threatened species as required by the Act.

“We cannot protect endangered species if we do not protect their habitats. The Endangered Species Act has been successful because its protections are based in science. This proposal invites all kinds of political and corporate meddling in a process that has always been rooted in biology. The Trump Administration is attacking the Endangered Species Act on multiple fronts, and we will continue to defend science and our environment at every step,” said Attorney General Tong.

For over 45 years, the Endangered Species Act has protected thousands of iconic and threatened species, including the Bald Eagle, California Condor, Grizzly Bear, and Humpback Whale. Enacted under the Nixon Administration in 1973, the ESA is intended “to halt and reverse the trend toward species extinction, whatever the cost.” In Connecticut, there are at least 14 species listed as endangered or threatened under the Act. Endangered species include the Indiana Bat, Eskimo Curlew, Roseate Tern, Leatherback Turtle, Atlantic Ridley Turtle, Shortnose Sturgeon, American Burying Beetle and the Dwarf Wedgemussel. Threatened species include the Northern Long-Eared Bat, Piping Plover, Loggerhead Turtle, Atlantic Green Turtle, Bog Turtle, Puritan Tiger Beetle and the Northeastern Beach Tiger Beetle.

Under Section 4(b)(2) of the Endangered Species Act, FWS is required to designate critical habitat for listed species based on “the best scientific data available” and after considering economic, national security, and other relevant impacts. Areas designated as critical habitat are provided with significant protections to ensure that species have the ability to recover to sustainable population levels so that they no longer need to be listed. FWS “may” exclude areas of critical habitat if the agency determines that the benefits of exclusion outweigh the benefits of designation.

On September 8, 2020, FWS published a proposed rule that would establish a new process for excluding areas of critical habitat. If finalized, FWS would be required to consider excluding areas from a critical habitat designation when a “proponent of excluding a particular area” presents “credible information” supporting exclusion. In conducting such an analysis, FWS would have to defer to outside “experts” and “sources” regarding "nonbiological impacts" that are outside the scope of FWS’s expertise. If FWS determines that the benefits of excluding a particular area outweigh the benefits of specifying that area as a critical habitat, FWS must exclude that area, unless it will result in the extinction of a species. This would be likely to drastically reduce the amount of critical habitat designated and protected under the Endangered Species Act.

In the comment letter, the coalition argues that FWS’s proposal is unlawful and should be abandoned because:
· The proposal is contrary to the plain language and overarching conservation purposes of the Endangered Species Act;
· The proposal is arbitrary and capricious under the Administrative Procedure Act because FWS fails to provide any reasoned explanation for the proposal; and
· FWS incorrectly suggests that the proposal is subject to a categorical exclusion under the National Environmental Policy Act, or that it may complete review at a later date, despite its major substantive changes that are likely to cause significant environmental effects on imperiled species and their habitat.

Attorney General Tong is joined by the attorneys general of California, Maryland, Massachusetts, Illinois, Michigan, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin, as well as the City of New York in filing the comment letter.

Assistant Attorneys General Daniel Salton and Matt Levine, Head of the Environment Department, assisted the Attorney General in this matter.

A copy of the comment letter can be found here
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