As part of a coalition of 15 state attorneys general, Michigan Attorney General Dana Nessel announced filing a comment letter regarding the Biden Administration’s proposed rules that would strengthen regulations implementing the federal Endangered Species Act (ESA). While?supporting?the proposed rules, which largely reverse deregulatory actions adopted in 2019 by the Trump Administration, the multistate coalition also urges the Biden Administration to fully rescind the unlawful Trump Administration amendments. In Michigan, there are currently 26 species listed as endangered or threatened under the ESA.
“My department is committed to prioritizing the enhancement, restoration, and conservation of Michigan’s wildlife resources,” Nessel said. “Michigan is home to more than two dozen endangered or threatened animal and plant species. I stand with my colleagues in urging the Administration to thoroughly roll back the harmful Trump-era Endangered Species Act regulations to help ensure that the continued existence of endangered or threatened species is not further jeopardized.”
Enacted under the Nixon Administration in 1973, the ESA is intended “to halt and reverse the trend toward species extinction, whatever the cost.” Under the ESA, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NFMS) are both responsible for listing species as “endangered” or “threatened” and designating “critical habitat” for each such species based on “the best scientific data available.” Critical habitat is particularly important for ensuring that listed species have the ability to recover to sustainable population levels so that they eventually no longer need to be listed.
In the final months of the Trump Administration, the FWS and NFMS finalized three rules that dramatically altered longstanding ESA regulations governing protections for newly listed threatened species: the processes for listing and delisting species as endangered or threatened, the processes for designating critical habitat, and the requirements for evaluating and mitigating the effects of proposed federal agency actions on listed species and critical habitat. In 2019, a coalition of 20 attorneys general, which included Michigan and the City of New York, challenged these three rules in court as unlawful under the ESA. At the request of FWS and NFMS, the court remanded these three rules to those Services for reconsideration without vacating or ruling on the merits of the challenged rules, meaning that there was never any court decision on the states’ claims regarding the unlawfulness of the Trump-era rules. The rules remain in effect.
The Biden Administration’s proposal would largely rescind the unlawful Trump-era rules governing protections for newly listed threatened species, for species listings, and for critical habitat designations, but would leave intact most of the unlawful Trump rules regarding requirements for consultation with the FWS and NFMS on proposed federal agency actions.
Co-leading these comments are the attorneys general of California, Maryland, and Massachusetts. Joining the co-leads in submitting the comments are the attorneys general of Connecticut, the District of Columbia, Illinois, New Jersey, Minnesota, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.
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