Court Strikes Down Trump ESA Regulations — A Win for Endangered Species

He's not a lawyer, but works very closely with the lawyers and is, in this case, one of the declarants who are of course a crucial part of, uh, endangered species litigation. And we'll talk about why.

And he's here to talk about this incredibly important case in which the Northern District of California very recently struck down four of six challenged regulatory provisions. These, these had been put in place by the former Trump administration, then kind of fooled with by the ...but anyway, it's been a process, but we're just dealing with where we are now and they're a problem, or they were a problem, until this litigation came down. They drastically weakened two of the acts core mechanisms. And, uh, the efforts to, uh, reduce the power of the Endangered Species Act have perhaps they've always existed, they've always been, been working on it, but they've never been more vehement, I think, than they are right now. And we're pleased to be able to unpack what is really an incredibly important case. So welcome, noah. Thanks for joining us.

Noah Greenwald: Thank you, Mariann.

Mariann Sullivan: And, uh, just a quick reminder about the Our Hen House podcast. Rising Anxieties comes out on Tuesdays, The Hen Report on Thursdays, and the long form interview, including this one, on Fridays. And bonus for Flock members comes out on Mondays.

So we're a podcast, we're on YouTube. Subscribe and hit like wherever you can.

Let's start with just describing to us what your job is. You're the Endangered Species Program Director, but that doesn't tell us that much. So what is it that you do?

Noah Greenwald: For the last 29 years I've been working on Endangered Species Act implementation, and so one of the, one of the main things that I've worked on is getting species listed as threaten or endangered under the Endangered Species Act. It's listing is widely recognized as the keystone of the act because it's only once a species becomes listed as threaten or endangered that it receives all the protections of the act.

So I've worked on writing, I'm a scientist by training, and so I've worked on writing the petitions to make the case that species do need to be listed. And then working with attorneys to make sure those petitions get heard. In some cases when those petitions get denied, working with attorneys to get those not warranted decisions overturned.

Um, similarly, you know, when species get listed, the US Fish and Wildlife Service or National Marine Fishery Service are supposed to designate critical habitat for those species. So I've worked with attorneys to make sure that critical habitat designations happen. And then, um, I've also worked extensively under section seven, which is the requirement that federal agencies ensure that their actions don't jeopardize listed species or adversely modify critical habitat, in actions that they fund, permit or carry out.

So we've often worked to sue federal agencies when they haven't consulted, or to challenge biological opinions issued by Fish and Wildlife Service that aren't protective of enough of species. So basically trying to, you know, keep the teeth in the Endangered Species Act. And I oversee six attorneys right now and a couple scientists as well.

Mariann Sullivan: Yeah. And those are the kind of cases that I see coming out of the center all the time. We don't do, usually do interviews on them because the legal issues tend to be relatively similar. But this case is very different because it's really looking at the overall, like what the regulations say, not how they're being applied to a specific species. And, and section seven, which you mentioned of course, is the big piece of, of this litigation and the part where you were particularly successful and, um, we can get into the legal specifics of the standing issue in the case as we discuss it.

Uh, but for now, can you just say, lay out what a declarant is and why a declarant has such an important role in Endangered Species Act litigation and getting you into court?

Noah Greenwald: Yeah. You know, under, it's under the Constitution, right? Article three of the Constitution requires standing, you know, you have to be able to show that you're harmed by what the government is doing.

And, and in the case of species, you have to show that you have a, a concrete interest in those species, which generally you do by, you know, saying, I care about that species. I go to visit its habitat. I hope to see it and I have plans to do that in the future. And, um, I've often been a standing declarant for species cases and spend a lot of time trying to see endangered species as part of my work and out of personal interest as well.

Mariann Sullivan: I'm sure you're very used to the fact that in order to litigate the Endangered Species Act, you have to find somebody who goes out into the woods and sees these animals. That's just a standard thing that you guys all know. But when you first hear this, it's like, what? This is nuts. This is really crazy.

But This case is just, you know, just like all the rest of them and you had to get very specific about the species that you know, uh, were in trouble because of this, this regulatory change. And before we get into the legal issues, can you just tell us a bit about your species, like who you were representing and maybe, uh, there were a few declarants who came in and said, I really care about these particular animals or plants, uh, and that's why I can litigate this case or why the Center for Biological Diversity can litigate this case since they were doing it on your behalf.

Noah Greenwald: Yeah, when we brought the case, there were a few species that were proposed for protections, and one of the things we were challenging is a change in the definition of foreseeable future. So a threatened species, well, so an endangered species is any species that's at risk of extinction in all or a significant portion of its range.

A threatened species is any species that's at risk of becoming endangered in the foreseeable future. And so part of one of the issues at risk in the case was foreseeable future and how that's defined. Um, and so I represented that there were a few different species that were proposed for listing as threatened.

And under this new definition, perhaps they would not gain those protections if this new definition was applied. And that, um, I, boy, I'm trying to remember exactly which ones it was, but I...

Mariann Sullivan: I think I wrote them down

Noah Greenwald: Oh, you did?

Mariann Sullivan: Mt. Rainier White-tailed Ptarmigan.

Noah Greenwald: It was the White-tailed Ptarmigan. Yeah. Yeah.

Mariann Sullivan: White bark pine 'cause it's, you know, we, we deal with the animals, but of course the Endangered Species Act covers both. Sierra Nevada Red Fox, and Virgin River Spinedace.

Noah Greenwald: Right. A fish. Oh yeah, that's right. Yeah. And um, some of those actually have gotten listed as threatened since then, thankfully. The Mount Rainier White-tailed Ptarmigan, which is a grouse like bird that lives in winter conditions on Mount Rainier and several other cascade peaks all year round. Um, and white bark pines similarly was listed as threatened. The spinedace wasn't.

And you know, I think does, in some ways, reflect problems with these regulations. Um, you know, it's one of the things that, it's a southern Utah fish and, um, St. George Utah has been sucking too much water out of the Virgin River for decades and, um, devastating the spinedace and several other fish species.

And when they looked at climate change for the spinedace, they only looked to 2050. Um, even though you know there's climate change modeling that goes out to the end of the century, so they did really cabin how far into the future they looked, partially based on that weaker definition of foreseeable future.

Mariann Sullivan: I mean, it's good to like see how this, these, these changes were playing out in the real world. And, you know, it's easy to forget that when you're only talking about the legal issues. But let's talk about the legal issues.

Um, I imagine most of our listeners are familiar with the fact that the Endangered Species Act exists and probably somewhat familiar with it, but, you know, it's a pretty complicated act.

And, um, can you just start with the, and we, you've already talked a little bit about what section seven, does but can you just start with an overview of what the whole act does and how it, how it, a brief overview, of of what it does and how it sets up this relationship between the government and other parts of the government and individuals and, uh, and to protect species?

All right. I just feel like I asked you a question that has an hour long answer, but try to make it shorter than that.

Noah Greenwald: That's okay. I can be concise about it. So it's, you know, as I already mentioned, the act, um, allows for listing of species, or I shouldn't even say allows, requires listing of species that are at risk of extinction now or in the foreseeable future. And once species are listed, it provides fairly substantial protections.

One of those is section nine of the act prohibits take of listed species. And, um, take is defined broadly to include harm, injury, harassment, killing, shooting, um, and it, it's applied broadly. It says any person, but that's been interpreted to include, you know, municipalities, states, um, in things that they permit. So it's got this broad prohibition on take of listed species.

Then as we mentioned, section seven puts duties on federal agencies to avoid actions that will jeopardize or adversely modify critical habitat. The way that federal agencies ensure that their actions don't jeopardize listed species is through consultation with the Fish and Wildlife Service for terrestrial or freshwater species and with the National Marine Fishery Service for marine species or anadromous species.

And so they consult with those agencies who, in the end of that process, produce a biological opinion that determines whether there's jeopardy or adverse modification. And if there is, um, provides reasonable and prudent alternatives to avoid that jeopardy. If there isn't, they also issue what's known as an incidental take permit.

So they allow for take in exchange for, for reasonable and prudent measures to minimize that take. So it, in many ways, is the heart of the Endangered Species Act. It's where a lot of conservation of threatened and endangered species happens because of those reasonable and prudent measures that are required and, and because of efforts to minimize the harm caused by projects.

And federal agencies end up permitting a lot of things, you know,

Mariann Sullivan: Right.

Noah Greenwald: Yeah. On, you know, on public lands, you know, things like logging, things like oil and gas drilling. On private lands often if you need any kind of federal permit, the most common one is, um, under the Clean Water Act, if you're gonna dredge and fill waters of the United States, you need a permit to do that from the Army Corps.

And that brings in the consultation requirement in those instances. So it ends up having a lot of reach.

Mariann Sullivan: So it's not just things that the agent, the, the Agency... uh, whatever it is, the federal agency, is doing, it's what they're permitting. And so that really means it's covering a lot of ground.

Noah Greenwald: Yeah. And you know, it kind of ties into the whole, I won't go into it 'cause it's a whole different topic, but that whole waters of the United States under the Clean Water Act, that's been back and forth for the last 20 years and at the Supreme Court, matters a lot for endangered species because where there's jurisdiction that endangered species get consideration.

And so if there's, if you know, all of a sudden you can plow a wet land over without it being, you know, waters of the United States, then the Endangered Species Act does not come into place. Yeah,

Mariann Sullivan: All right.

Well let's not go down that rabbit hole but that is interesting. Yeah.

Um, alright. I'm still not getting to the specifics of the lawsuit 'cause I, there's something else preliminary I'd like to talk about, and it's a little bit of about the politics. My understanding Is that before 2019, the, um, the ESA, oh well either, we'll either call it the ESA or the act, um, implementing regulations had been stable for a really long time, since, you know, maybe since they were implemented like 30 years ago, and then there started to be these changes. Before we get to them one, by one, can you just kind of give us an idea of what the go... that was during the first Trump administration, what the government's stated goal in making changes was?

And maybe a little backstory about, uh, the political turmoil about the act and, and what some, uh, uh, well, I don't wanna say real goals. I'm not asking you to put, put words in other people's mouths, but just the whole political mishegas surrounding this at the time. And surrounding it, not just at the time, but since the act was passed, it has been under fire, but it got a little stronger in in those years, right?

Noah Greenwald: Yeah, I mean, what I'd say about that is, you know, when it was passed, it was near unanimous. You know, it was both The House and the Senate. Uh, you know, it, it passed nearly unanimously. It was signed by, by President Nixon at the time. And, um, it, you know, first ran into controversy around the Tellico Dam, um, project in the late seventies where, you know, the, the government was building this dam on the little Tennessee River and it threatened a species called the snail darter.

And, um, they were actually partial... you know, the whole dam was a boondoggle of a project. You know, it actually flooded out really valuable farmland and displaced people. And part of the justification for it was the Boeing Corporation was gonna build this like model city, which never has been built. And um, you know, so it was kind of this gift to the Boeing Corporation and, and, you know, so the, the justification for it were just terrible.

But in any case, the, you know, the opposition to the dam and its effect on the snail darter went all the way to the Supreme Court. The Supreme Court said, you know, this law is clear. You can't drive species to extinction, you know, and that, and that's kind of where the controversy started. Um, Congress amended the act and included this provision now known, it's become quite a bit more common in the lexicon now because the Trump administration has evoked what's called the God squad.

Mariann Sullivan: If we have time at the end, I'd love to get a bit more on, on what's going on with the God squad.

Noah Greenwald: Yeah. So they created this committee and allowed, um, for things to be exempted. And the committee actually looked at Tellico Dam and concluded that it shouldn't be built, that it wasn't justified. And, um, and, but Congress stepped in and approved it through a rider. And so the, the controversy was there.

And then, you know, the Reagan administration came in and, you know, with the really an, uh, anti-regulatory mindset, which I think is really where you start to see that in the Republican party. This anti regulations for anything- human health, the environment. Um, moving into the nineties, you know, I think where. The modern Republican party and its sort of anti-environmental agenda came in, was with in 1994 with Newt Gingrich and the contract on America, so call it. Um, you know, they passed a bill that prohibited listing of species funding for any listing of species for a year.

Um, so we didn't see any listings or hardly any listings in 1994 because of that. And ever since then, you know, they've really pushed this agenda of just stripping regulatory protections for our wildlife, for our water, for our air, for our climate, and, um, have persisted in that. And I, I think the Trump administration has been incredibly rabid in that quest to just leave everything up to corporations and private industry and, you know, somehow think that's gonna work out for all of us.

Mariann Sullivan: We'll get to the details of what they tried to do here, which, um, that's what the interview is about. I promise I will get there. Um, but let's, all right, so I'm just gonna start like talking about the lawsuit rather than laying out all of the, uh, the preliminary and we'll discuss the actual regulation in the context of talking about the lawsuit.

The lawsuit was brought, brought in federal court in California by the Center for Biological Diversity. And, um, and immediately there was this big standing issue. You already talked a little bit about Article three standing, which is, you know, one of the functions you serve in bringing these, uh, types of litigation. um, as many listeners know, there is a citizen suit provision in the Endangered Species Act. And since this is the Animal Law Podcast and we're used to dealing with the Animal Welfare Act, which doesn't have a citizen suit provision, that seems like a very big deal.

But it doesn't eliminate the necessity that you have constitutional standing and you can show injury and... uh, The Center is asserting organizational standing, which means that, um, one of the things that they have to do is, as you mentioned, show that, uh, you and other members have been injured and injury is always the centerpiece of, of constitutional standing. Um, then the government raised like a million different standing arguments.

I'm just wondering. Um, I think the court even referred to it as a kitchen sink approach that they raised every possible standing issue that they could. Just a preliminary question, was this unusual? Uh, like, is this a new tactic that they're, they're going to start to attack the possibility of standing in cases where it is, where it has formally been, uh, kind of accepted that that organizations like the Center for Biological Diversity would have standing?

Noah Greenwald: We weren't totally surprised by it because it is a facial challenge to regulations, you know, so they tried to argue essentially that we can't bring that case because there's no specific standing to a facial challenge. We'd have to wait until some project that relied on the regulations was harming a species and then bring it then. And I'm glad the court didn't limit it to that because, you know, I, I do think we are injured by these regulations and I, I do think, you know, having to wait for the specifics is, would've been, you know, painful, it would've caused additional injury, I think.

So, you know, that's, that was the main hurdle we had to get over was that this was a facial challenge to regulations. You know, could we show harm to our interest in species by, you know, sort of essentially, you know, prophesizing, how these regulations would harm species?

And so we found very specific examples of how that could happen, you know, so for example, one of the things we challenged was when looking at adverse modification, the regulation said that a project would have to harm critical habitat as a whole, um, rather than just the critical habitat that's in place where the project is.

And so we, you know, there was a really good example of that there. The, um, there's a proposal to build a dam on the Pearl River, um, in Jackson, Mississippi. And, um, the Gulf Sturgeon is a species that has critical habitat from basically Texas to Florida. And, um, but the Pearl River is a, you know, one of the places that they spawn.

And so under, under that regulation, if it's as a whole, you could say, oh, well you can dam this one river and, you know, eliminate the spawning habitat for the Gulf Sturgeon, and that'll be just fine because it has other places. And so it was a good example of how the regulations specifically harm our interests.

Mariann Sullivan: We can get into that a little bit more when we're talking about the substantive, um, arguments 'cause that was one of the examples I noted as well. But yeah, I can see how it would also... I didn't realize that this was actually kind of a legit ar... no, not a legit argument, but a, a viable argument, a colorable argument, um, that, that the standing to the facial challenge was more potentially controversial than, than the obvious kind of thing that you usually litigate where you're talking about a, a specific species. And, uh, and you can, you can show how the injury would occur. So that does make sense.

I did notice though, not only did the court call it a kitchen sink approach, 'cause there were a million other standing arguments too, which I won't, I won't go into. But, um, there was one, it was in a footnote too, and about Lujan and the court said that the government's arguments grossly misrepresents the statute in Lujan, which was the case they were talking about. Um, it, it, so, uh, I did feel the court was a little, felt that maybe there was a little overkill in the standing arguments here, but you did get standing.

Um, and unless there is another standing argument that you would specifically wanna address, I'll move onto to the substative arguments.

Noah Greenwald: No, I mean, I would note that, you know, standing is frustrating in some instances, you know, with some species it's, it's hard to go out there, you know, and, and see them. And so that, you know, that goes back to a Supreme Court decision, Bennett versus Spear. And, um, it's unfortunate in some ways because I think people can clearly have an interest in a species without going out to see it, you know?

And so I think, I think that limitation is unfortunate. I actually, he actually passed away, but there was a scientist that I used to work with named Jim Deacon. He was a fish scientist, very wore his heart on his sleeve. Very good guy. But he was in a chair. Um, he'd had a spinal issue, I can't remember exactly what it was, but he was in a chair for the last, you know, 20 or 30 years of his life.

And I always thought, boy, like, you know, somehow Jim Deacon, these fish species that he studied for and cared about, you know, loved really, for decades, you know, somehow he wouldn't have standing. You know, it always, it always struck me as just wrong.

Mariann Sullivan: Standing litigation is, I mean, as I mentioned before, it's insane.

Like, it's just insane. I mean, and from an animal law perspective, it's even more insane 'cause you don't even have a cause of action. And well, I'll go onto to this case. I'll get back to this case.

All right. First, I'll just mention that there was no question that this was a case that was appropriate for summary judgment, which is what we're, we we're dealing with here, a motion for summary judgment that was granted in part and denied in part.

There were no factual disputes to be resolved and it just, as you mentioned, resolved whether the regulations were facially inconsistent with the Endangered Species Act. Some of the claims were actually, um, whether they were arbitrary and capricious under the Administrative Procedure Act. And I think there was a NEPA challenge, but there's no way we're gonna have, unless you really, really wanna go into the NEPA challenge, there's no way we're gonna have time to do that.

Um, and all of the regulations that the court found to be improper, were under section seven, which you've already talked about. And, um, uh, is there anything you wanna add in this context to how Section Seven governs the relationship between, um, between what we'll call the services and what we'll call, they called it the acting agency, which would be the agency of the federal government that is trying to do something that might be in violation of the act?

Noah Greenwald: Boy, there's a lot there to unpack over the years. You know, if things, how that's applied. You know, I mean, just maybe I'll just mention one thing for context, which is that, you know, one thing that's hard about the Endangered Species Act right, is that in many ways government is in place to, the way I usually say it is, to grease the skids, right?

To encourage economic activity. To facilitate economic activity, that's often how government operates, that's how they see themselves. And the act was particularly challenging in that it recognized that there was an economic conflict, or that there were often economic conflicts between saving a species and between whatever activity is ongoing.

And so it, yeah, so it, it, it put the Fish and Wildlife Service and National Marine Fisheries in the place of, of having to say no to economic activity in order to save species. And that's an uncomfortable position to be in. And in some ways they've run from that as much as they can. So for example, they rarely will determine that a project jeopardizes, they'll go to great lengths to avoid saying that a particular project jeopardizes.

And so they, they almost never outright deny projects. Sometimes projects get slowed down in part because of our litigation and they kind of die under their own weight. Um, but it's, it's rare for the fish and wildlife service to say no. So it's kind of in that context that we end up litigating and end up fighting for species is always trying to push Fish and Wildlife Service and National Marine Fisheries to do more and to make sure that the species really will be okay. It's, it's challenging.

Mariann Sullivan: Yeah. Yeah. I've never thought of it as that difficult, but, uh, 'cause you know, I'm used to thinking about the USDA and animal agriculture, which is, which is an even more, um, well perhaps as much of an agency that is devoted to the business it regulates. And, uh, to say that they shouldn't be allowed to do things, it's a very similar kind of situation, I think.

Noah Greenwald: Yeah, I agree. And, and Fish and Wildlife Service, it always has had an extra element of frustration to it in that their mission should be clear. Their mission is to protect the species.

Mariann Sullivan: Yeah. Yeah.

Noah Greenwald: Whereas you're right, USDA, you know, their mission is partially just Agri

Mariann Sullivan: Feed America,

Noah Greenwald: America, right? So they have much more conflict there than it would seem Fish and Wildlife Service had, but Fish and Wildlife Service is a small agency and gets pushed around a lot and yeah, so it, it often is unable to get to a place where it can really fulfill its mission as much as you would hope.

Mariann Sullivan: So let's get to the regulations. The first two regulation changes that the court dealt with were changes to the consultation requirements.

So can you explain to us what the consultation, what consultation is and when it is required under the statute?

Noah Greenwald: Yeah, so it's, it's required anytime a federal agency action may affect listed species and that's been found to be a pretty low bar. Like if there's a chance that you're gonna be affecting a species, then you need to consult. And that is pretty detailed in the statute, how that process occurs, it begins with the agency providing a biological assessment.

Um, looking at what effects they think it has Fish and wildlife service, taking that biological assessment and then producing a biological opinion that has reasonable and prudent measures. And the regulations, you know, going, they were actually from 1981, so from the Reagan administration, going back to then, um, said that, you know, in looking at projects, they had to look at interrelated and interdependent actions, that was part of it.

So it's, you know, you're building, it's the, it's the, um, transportation administration. You're building a highway or funding a highway. You know what effects, you know, are gonna stem from that highway? There's gonna be development, and how's that development? So they've, you know, they've had to, the idea was that they had to consider all the possible effects of the action in question as part of the biological opinion, and ensure that those effects are minimized.

Um, and so part of the regulations, you know, really struck at that, really tried to limit how much sort of ancillary effects would you look at. And so they said they would only, you know, say you're building a highway, they would only look at the development from that highway if it wouldn't occur but for that highway and if they were reasonably certain to occur.

So they really tried to cabin the effects of the action and what was minimized to the specific action itself. And, um, in a, in a climate context, they... and actually so far they're still getting away with this. You know, they, they won't look at emissions and how emissions affect species because they say it doesn't. They can't quantify it partially, but they also say it doesn't meet that but for test.

You know, emissions are a global phenomenon. Even if the government's permitting, say a new coal plant or oil and gas drilling on the outer continental shelf, they're not gonna look at how that'll affects species because it's part of this global process. And global warming will happen anyway. It doesn't meet that but four test, which is unfortunate.

So, so that was the first part of what we challenged and what we won on is that, that hinging on but four and reasonably certain to occur. And, and, um, the court found that it, it's inconsistent with the statute because the, the statute says when producing a biological opinion, when analyzing the effects of the action, they have to rely on the best available information.

And that that's been, that's been interpreted by the courts to being available, not perfect, not certain. And so the court concluded reasonably certain to occur, violated that. That essentially it was a higher standard. And you know, you could say, well, we don't know if that development's gonna occur 'cause of the highway, that it's not reasonably certain to occur, so we don't have to analyze it.

Even if there was information to say, well, clearly that's why they're building the highway is for this development. And so that is likely to happen and therefore it should be looked at and minimized.

Mariann Sullivan: I have down in my notes and which could easily be wrong. Um, but that, that the real focus that I focused on was the difference between what you just said likely to occur, which, which had been the standard and to this shift that you mentioned, reasonably certain to occur. Was that difference, um, a touchstone for the court?

Because I have to say that the difference between likely and reasonably certain to occur seems really obvious. They, they don't mean the same thing even in common talk. Even in common like chatter, like, I'm likely to go to the store later. I'm reasonably certain I'm going to the store. I mean, they mean different things in English.

Noah Greenwald: Yeah. I think that's right. And the court did really key in on that. And I, I think they, you know, and I mean, one thing that the court keyed on onto as well, and that I think was right, was, you know, that defendants tried to essentially make that argument, like, oh, it's the same, you know? And then the court was like, well, if it's the same to you, then why even make the change?

And so they're like, that's, that's completely disingenuous. You know? And I,

Mariann Sullivan: That's hilarious.

Noah Greenwald: Think it, yeah, I think it was clear that they were making the change because, because they wanted to limit the scope of consultation to the actual, just the footprint.

Mariann Sullivan: To only things that are reasonably, that you can say are reasonably certain to occur if we build this highway. Right.

Noah Greenwald: Whereas likely is just more likely than not. Like probably can, yeah. Probably gonna happen and we should look at that.

Mariann Sullivan: That is really funny. Like. They cha... the statute says likely they changed it to reasonably certain to occur, and then they said, well, they mean the same thing. And the court's like, Well, then why did you change it? Yeah.

Alright. I know that the court also found that the change was arbitrary and capricious under the Administrative Procedure Act, and I'm assuming that the difference in, in whether something was found to be facially invalid or invalid under the Administrative Procedure Act has more to, has to do with, if it's facial, it means that it contradicts the Endangered Species Act. And if it's, if it's arbitrary and capricious, it means they didn't follow the, the appropriate procedure in, in doing this. Is that right?

Noah Greenwald: Yeah, they didn't explain is what the court found. You know that if you're gonna change, if you're gonna make a change, like you have a longstanding regulation and then you change it, you have to have some reason for that. You have to explain that, otherwise it's arbitrary and capricious. And they didn't offer a good enough explanation.

What they said was, it used to be that there were indirect effects and interrelated effects. And for indirect effects, they did use that reasonably certain to occur language in the regs before. And they said, well, we were just making it consistent. We're just having it applied to any effects that we're looking at.

Mariann Sullivan: Yeah,

Noah Greenwald: That's, you know, it's clear. That's, that was their explanation, which isn't an explanation at all. And so the, the court, yeah...

Mariann Sullivan: We were wrong before, so we decided to be wrong again.

All right. Uh, that, I mean, that's all I have on that first, um, the first issue, if, uh, there's nothing else I can, I can go onto the second issue, which also related to section seven, consultation. And, um. I think was a different aspect of the same regulation.

Is that right? And it had to do with ensuring that a project will not jeopardize listed species. Am I right?

And there was actually, there's a, there's a ninth circuit decision, which I thought was interesting. talking about, uh, having a stated intention to make, to make a, if you if you wanna go into that.

Noah Greenwald: Yeah. Uh, that was a really important finding because in several cases the courts have found that what Fish... and so, you know, agencies can often promise to do things or even private entities. Um, actually we had a, a case over a pipeline that they were gonna build in Oregon called Ruby Pipeline, where they tried to do this, they had various measures as part of the proposed project that they said they were gonna do to try and avoid impacts from this pipeline.

And, um, Fish and Wildlife Service tried to rely on those, even though they're not essentially terms and conditions in the biological opinion, they're not enforceable, say, by us or another outside party if those aren't, they're just in the project description. And, you know, they were, essentially what the regulations tried to do was to say that if an agency, if an agency or a private party said they were gonna do something, made some big promises about doing something, Fish and Wildlife Service had to accept that on its face. They couldn't question it. They couldn't say, yeah, but do you actually have funding for that? Do you actually have concrete plans to do that?

And so I, I was really glad to see that get rejected because people can promise all kinds of things in order to avoid, um

Mariann Sullivan: in the real world?

Noah Greenwald: Yeah, exactly. Yeah,

Mariann Sullivan: about?

Noah Greenwald: Exactly. And so I was really glad to see that overturned. And you know, what it essentially says is if you know, if there's terms and conditions to minimize the effects to a listed species, those have to be binding terms and conditions and they have to be enforceable.

And so that's really a good outcome.

Mariann Sullivan: There's some kind of contractual or or other way in which the promise can be enforced?

Noah Greenwald: Yeah. Yeah. We, you know, for example, as watchdogs, you know, the Center for Biological Diversity could read the biological opinion and say it requires X, Y and Z, x, Y, and Z didn't happen. Therefore, they're in violation and go to court over that. But if it just has vague promises in the project description and says, oh yeah, we're thinking about doing this, you know, then, and then they don't do it.

Yeah, it is, it is insane. It's true.

Mariann Sullivan: The third one is also insane. And this has to do with adding three words and three words, like really changed it a lot. And this is not about consultation. This is about, um...

Noah Greenwald: Well, no, it is still about consultation.

Mariann Sullivan: Alright then I misspoke.

Noah Greenwald: Yeah. Because under, under the act, under section seven, you know, one of the things they analyze during consultation is, is there adverse modification of critical habitat. And so what the regulation said, um, is that they would only look at the critical habitat as a whole.

So you picture, it applies especially to wide ranging species that face a lot of threats. So the Northern Spotted Owl, logging is a primary threat to that species. And essentially it said, and it it has over 9 million acres of critical habitat. So it said essentially for a project to adverse, be considered adverse modification, it has to affect the critical habitat as a whole.

And, um, when you think about that, I

Mariann Sullivan: Before, that as a whole language wasn't in there. It just said it had to affect the critical habitat.

Noah Greenwald: Right. Had to diminish the cri, the value of the critical. Yeah.

Mariann Sullivan: habitat.

Noah Greenwald: you know, so you picture that, I mean, there's no clear cut in the world that would be big enough to affect 9 million acres as a whole. So you could be cutting down, you know, old growth habitat that the Spotted Owl needs. And it, it, you know, really leads to this problem of, of death by a thousand cuts.

You know, that each little project isn't determined to adversely modify, but then when you add them all up, you know, the, it, it really harms the species. So I was glad to see the judge agree with us about that.

Mariann Sullivan: This is particularly, uh, very unscientific. I mean, they're really not looking at what a species or what certain species, anyway, are and what they do and how they live, and there's just either an ignorance or, or a willing refusal to accept that animals' habitat is what animals' habitat is.

Noah Greenwald: Yeah, and it, it really goes back to this idea of just not wanting to stop economic activity, not be in the position. And, and honestly, you know, Fish and Wildlife Service has rarely said that there's adverse modification, um, similar to jeopardy. They rarely say it. And, and, um, you know, I, I, you know, the, the Trump administration, you know, in enacting the regulations, you know, essentially wanted to, you know, blow any Endangered Species Act enforcement out of the water.

But the Biden administration retained that, that, um, part of the regulations when they revamped the regulations. So we were actually challenging the Biden administration on that. And it, it kind of shows that there's a, a level of bipartisanship to, to avoiding regulations and wanting to have clear boundaries.

Mariann Sullivan: This was also the area, you, you talked about this case before, which had to do with the sturgeon.

It was the same kind of thing that they were, there was a certain part of the sturgeon's, um, habitat that they said they could eliminate because, because they had lots of other habitat, but it

Noah Greenwald: Yeah, exactly.

Mariann Sullivan: crucial.

Noah Greenwald: Yeah, exactly. It's the Pearl River and, um, we're still, we're actually still waiting for a record of decision on that dam. You know, it's, it's a dam that would be built in, in Jackson, Mississippi. There's already one dam there, and this would add a second and create this, it's similar to Tellico, you know, when you really dig into projects, oftentimes there is just some very specific economic interest. So it'll create,

Mariann Sullivan: Making a buck.

Noah Greenwald: Right. Somebody's making a buck. Like they're gonna have this lake shore in Jackson where people can build casinos and resorts and stuff like that instead of having a natural river with the riverfront. You know? So it's,

Mariann Sullivan: Yeah.

Noah Greenwald: it's one, we're waiting on the decision from any day and we'll certainly fight.

Mariann Sullivan: With your experience, I guess it wasn't as shocking, but reading a cold, that was the one that really shocked me that, uh, that it would be seen as because their argument was basically like that. It just didn't make really big difference. And it's so obvious that putting those three words in there would make an an unbelievable difference if you're talking about habitat. Like

Noah Greenwald: Very much so. Yeah.

Mariann Sullivan: The last one that you were successful on is also under section seven and has to do with, um, the, the services have a duty to flag when a consultation needs to be reopened it was trying to eliminate that. Is that right? Can you explain what happened there?

Noah Greenwald: Yeah. So once there's been a consultation and there's a biological opinion, the regulations have always specified, there might be conditions where that, that consultation needs to be reinitiated is the technical term that they use, but reopened works as well. And, and, um, those were, you know, that, that the impacts were more than previously considered.

A new species was listed, um, or, you know, in a lot of cases just it's not being followed, it's not, it's not working. And so they, you know, that's, it's a part of the regulations that they've been trying to get rid of. And actually Congress has stepped in in some ways. So it's already been narrowing, but it's one of the key ways that biological opinions get enforced is, is if it's not working, then you gotta go back to the drawing board.

And, um, what this regulation said was, it's only the action agency's duty to reinitiate consultation. And Fish and Wildlife Service essentially just washes their hands of it. They don't have any,

Mariann Sullivan: Insane.

Noah Greenwald: Yeah. Yeah. So this, I'm glad that that was rejected and Fish and Wildlife Service, if they have information they need to let the agencies know that they need to reinitiate, and that's the case because of this decision.

Mariann Sullivan: To make clear, I mean, assuming I'm right here, they don't, they can't even fo... it's not that they have the right to force reinitiation, they just have a right to like request it? Is that right?

Noah Greenwald: Yeah, exactly. Yeah. They just need to let them know. Yeah. And they were trying to run away from that. Yeah.

Mariann Sullivan: And, and, um, I mean this is obvious, but like who would be in the better position to know when new information requires reopening consultation about endangered species than...

Noah Greenwald: The expert agency. Yeah, exactly. Yeah, exactly. Exactly. Yeah, fish and wildlife service.

Yeah. Exactly. Yeah.

Mariann Sullivan: Just to be a completist, this was also found, um, arbitrary and capricious under the, under the, Administrative Procedure Act. I, I noted that.

Noah Greenwald: Yeah, similar again of just, they really provided no explanation why this change was needed.

Mariann Sullivan: All right, so those were the four, I mean, four hugely important. I mean, when you start talking about them, it doesn't, you know, when you first hear it, it's like, doesn't sound that big. And you start talking about them and you realize the scope of these changes was very big, but there were two provisions that survived.

Do you just wanna, uh, I don't know how important these are to you, and I was wondering too, whether the court's decision resolved some of the problems you were worried. Uh, that, that it interpreted the, the, the changes in a way that might have made the fact that they survived not as dire. But can you just tell us what it is that that the court did not find, uh, were problematic?

Noah Greenwald: Yeah, it's unfortunate. So I mentioned that when a species is listed, there's a requirement that critical habitat be designated. And, um, there's a, an exception to that where they can find critical habitat not prudent if it won't benefit the species. And, and actually for years, throughout the eighties, 1980s, Fish and Wildlife Service routinely didn't designate critical habitat. And still to this day, it's, I haven't calculated that stat in a while, but it's, you know, roughly 40% of species don't have designated critical habitat. And so, you know, the courts cabined that constrained that pretty considerably in the nineties saying that, you know, it should be a really rare circumstance.

And so, you know, since then they've limited it to situations where species are collected, you know, where there's some threat of poaching and, um, you know, where perhaps publishing maps of critical habitat would facilitate that. Actually don't think it's a great justification in most cases. Most cases, you know, it's publishing, you know, sort of a coarse scale map.

You know, say designating watersheds. Like an example of a species that didn't get ha uh, critical habitat is the Ozark Hellbender. It's North America's largest salamander. It does appear in the pet trade and is something that's collected at times. And so they didn't designate critical habitat, but it's, you know, if you publish these, you know, maps that show broad watersheds where critical habitat is designated, it doesn't really give much clue to where you would go collect one.

So even in those instances, it, to me, it's not terribly justified. But that was, that was kind of the limitation of when they really wouldn't designate critical habitat. And they, they've opened that up considerably with these regulations. And the one that I find most concerning is that they say when habitat destruction isn't a threat, or maybe even, even isn't the primary threat, then they won't designate critical habitat.

And, you know, I think a lot of this is, you know, the agencies running away from climate change. You know, they, they don't want to designate critical habitat for climate change impact to species. We mentioned a couple of them actually. Uh, Mount Rainier Whitetail Tarmigan, climate change is the primary threat, but it has some threats to its habitat too.

And they actually have reversed course. They originally said it wasn't prudent under these regulations, and then when they finalized the listing, they said it was not determinable. So they still are open to doing it. But White Burke Pine, for example, you know, it's threatened by climate change and as well as an introduced disease and so they didn't designate critical habitat for it.

And you know, I, I think it's really unfortunate in some situations, you know, you might need to designate a critical habitat where a species currently doesn't occur. Say like a species that's impacted by sea level rise. You might need to designate a critical habitat inland in order to ensure that it has habitat in the future.

Um, you know, White Burke Pine. Or Mount Rainier White-tailed Tarmigan, I always thought, well, you know, you should try and figure out where the climate refugia will be. You know, where will the species most likely be able to survive and designate that as critical habitat to ensure nothing happens to that, those areas.

And so it's, you know, the court, the court essentially said, you know, they're gonna, they're gonna look at the critical habitats and they're gonna determine if there's a benefit or not. And they may determine that habitat destruction isn't a threat, so that there's no benefit and, and determine it not prudent. They upheld that part, which I, I think is unfortunate.

I think it in, in, you know... and really Congress was quite clear that, you know, not designating critical habitat should be a rare instance. You know, and this definitely opens the door more.

Mariann Sullivan: What are the implications of designating critical habitat?

Noah Greenwald: Yeah, so it, it, the main one is, is through section seven. You know, as we said that, you know, as part of section seven, Fish and Wildlife Service determines whether a project will adversely modify critical habitat.

Um, one of the things that's really important about it and doesn't get enough attention is that, you know, generally species are protected where they are. You know, consultation will only be triggered where the species still occurs. Most species that are threatened or endangered have lost substantial, you know, maybe 90% or more of their range.

And so critical habitat's the one place where you can, you can identify areas that are important for recovery of species and provide some protections to those places. So you, you could have a situation where an area's been defined as critical habitat, but the species no longer occurs there. And that would get some protections through Section seven, but it also provides other benefits.

You know, it's, it's educational, you know, people have no idea if they have critical habitat on their land or not. And, um, you know, this lets them know that, that they do. And in a lot of cases, it, you know, for private landowners, if there isn't a federal agency nexus, you know, they're not really affected by critical habitat.

I actually own, we own some property that has critical habitat for Oregon Spotted Frog on it. And, you know, we love that. You know, and it actually, we've had Oregon Spotted Frog egg masses in a pond that's on the property. So it's, it's, you know, it's, it's information to the world that there's something important here.

Mariann Sullivan: But it does limit what you can do, right?

I mean, it it's not just informational.

Noah Greenwald: If, if you need a federal permit, it does. So if, if you're gonna modify waters of the United States,

I mean, honestly, I wished it limited people more than it does. It really only comes into play if there's that federal nexus.

Mariann Sullivan: And um, there was another regulation too, regarding the definition of foreseeable future.

Noah Greenwald: Yeah. This is in, in regard to threatened species. And so in this case, reasonably certain to occur, unlike in section seven, was found to be okay. So the, you know, they defined foreseeable future as, um, the threats to the species in the future and the effect of those threats on the species are reasonably certain to occur in the foreseeable future.

And in this case, the court determined that that was okay and, you know, unfortunately, they've been really trying to limit how they look at threatened species and how far into the future they look. And a lot of this is focused on climate change and whether those effects are foreseeable or not.

Mariann Sullivan: Well, that kind of covers the appeal, but I have a few follow up questions 'cause I'd like to talk about the bigger implications. But first of all, I mean, since, since, um, do you expect that the government will appeal and do you plan on appealing or have you decided yet?

Noah Greenwald: We're still waiting. They haven't filed a notice of appeal yet, but we wouldn't be surprised. And I, I didn't mention the sort of weird procedural thing that has happened here, which is, you know, 2019 Trump administration puts these regulations in place. We challenge them. The Biden administration comes in, they ask for a remand the um, with vacature.

The court initially grants that, but then there's a Supreme Court decision that you can't have vacature without a decision on the merits. So that comes back to the court. Actually, I think it even went up to an appeal and um, the court ends up remanding without vacature. Fish and Wildlife Service puts in place new regulations that fix some of the problems, but not all of them.

We continue our challenge, we get a decision, but in the meantime, the Trump administration has proposed regulations again, which, you know, seek to put back in place some of the things that the Biden administration fixed. And so now we've gotten this decision, but we're waiting for the final regulations to come into play.

And, and that could happen any time. Um, so I mean, I, I do think they probably will appeal this decision. I'm not a hundred percent sure of that.

Mariann Sullivan: I, I was trying to avoid this whole. This whole

Noah Greenwald: Yeah. It's very confusing.

Mariann Sullivan: do it.

Noah Greenwald: Yeah,

Mariann Sullivan: but I was wondering like, alright, so there's new regulations that they, that are coming out. What is the, what is the effect of this ruling on those regulations? Are they gonna, if they don't appeal, are they gonna have to comply with this ruling in their new regulations?

Noah Greenwald: I think so. I mean, I think particularly for, as a whole and, well, all of those Section seven wins. I mean, I, you know, they certainly, I mean, as a whole, that was already still in there, you know, so they're gonna have to do something with that. So, you know, it's hard to say how they're responding to this and what they're gonna do, but I think appeal is certainly possible and I think we're waiting.

Yeah, we're waiting to see if they appeal to make a decision on whether we appeal on those section four parts as well. Um, so we, we haven't made a decision yet.

Mariann Sullivan: So, uh, another thing that I wanted to ask you is, um, not about this case, but did we mention at the beginning, or was that before we started recording? I don't remember, but the Gods squad situation, could you just give us like the very briefs, because I know that's the other huge, huge issue that's, that's in the news right now about, um, the Endangered Species Act. Can you tell us what the Gods squad is and why everybody's talking about it?

Noah Greenwald: Yeah, so as I mentioned, you know, after Tellico Dam, Congress amended the act and added this, um, what's in the act called the Endangered Species Committee, but has been referred to as the God squad, and it laid out very detailed procedures and the committee is made up of, you know, Secretary of Interior, Secretary of Agriculture, um, the Head of the Council on Economic Activity.

It's like a cabinet level

Mariann Sullivan: Yeah, already it sounds bad.

Noah Greenwald: Yeah, it's bad. It's, especially when you look at this cabinet,

Mariann Sullivan: That's what I

mean. Yeah.

Noah Greenwald: But it has very clear procedures in there and essentially it requires that certain things happen. And one of those things is that there's a biological opinion, that biological opinion determines jeopardy, that a project like Tellico Dam will jeopardize and cause the extinction of a species.

The agency has gone through, looked at the reasonable and prudent alternatives, and does not believe that it can implement those, that the, the RPAs are not possible. And then there's an application to the committee, either from a state or from an action agency or from, you know, whoever's, you know, building the dam or whatever it is.

Then there's supposed to be this whole, essentially a trial, you know, that's open to the public and proceedings and findings and you know, and then that all goes up to the committee and the committee makes a decision. And it can, so the reason why it gets called the God squad is because they can essentially say this project is so important that, you know, we don't care if it's gonna extinct, it's gonna drive a species towards extinction or to extinction, and therefore it can go forward.

It's only been evoked four times. And, um, there was one time in the 1990s that was the last time, so it hasn't been evoked in, you know, 30 years. And, um, they did actually allow some timber sales that threatened the Spotted Owl on BLM lands to go forward, um, which was unfortunate. Um, but in this case, none of that has happened, you know, so there wasn't a biological opinion that found jeopardy.

There wasn't an application from an action. There was none of the procedures that are detailed in the statute have happened, and instead they just called the committee together. And I don't know if you've watched the video, it's pretty amazing. And they just decided... well, I should add that there's one provision in there that says that they can do this for national security reasons. That's one of the basises, but it's also pretty clear that all those other things have to be met before they determine that.

Mariann Sullivan: It's not like It's an exception to all of the procedure. It's just one of the reasons you can invoke the procedure.

Noah Greenwald: And, so they brought everybody together. They had Hegseth there, and Hegseth says, you know, oil and gas drilling in the Gulf of Mexico is, is important for national security and therefore all oil and gas drilling in the Gulf of Mexico is exempt from the Endangered Species Act.

Um, and you know, the, the species of concern is a whale called the Rice's whale, which is down to very small number of individuals in the Gulf of Mexico at risk from ship collisions. And so they're, and there's some sea turtles as well. So they're saying essentially oil and gas drilling can go forward without any consideration of whether it drives these species to extinction.

And so that's something we're challenging in court and

Mariann Sullivan: Yeah,

Noah Greenwald: Yeah. Yeah, we cha we're challenging it in court and actually everybody else is as well.

Mariann Sullivan: Yeah,

Noah Greenwald: yeah.

Mariann Sullivan: I, um, not surprising, but once again shocking. There's a lot going on that's not surprising, but shocking.

So, assuming we managed to get through, uh, the current political crisis and, um, and have an opportunity to rethink, um, how we're gonna protect the environment and with a real government that really cares about things, how do you, how do you see the next chapter? Um, taking into account, not ignoring climate change anymore, but taking it into account. Is the Endangered Species Act. I mean, right now it's kind of the centerpiece or at least one of the, kind of the centerpiece. Is it still useful? Is it up to the task or even if enforced, is it, are we way, way behind and, and we need something very different?

All right. This is a big picture question, but I'm sure you're up to it.

Noah Greenwald: I mean I, I think the law itself is very much up to the task. It's whether the government is up to the task of implementing it. And, you know, we've had, you know, during my career just watching it swing from Republican to Democrat administrations, you know, we've had this swing where republicans come in and they basically just try and dismantle the regulatory state.

Boy, the Trump administration, the second term has been just a wrecking ball, you know, uh, I mean, we've seen, we've seen attempts, you know, the Bush administration tried to put in regulations for ESA implementation too, so we've seen that playbook. We haven't seen the playbook of just trying to fire all the scientists in the government, trying to, you know, essentially pull the government out of science. Try and, you know, just, yeah, this is the most anti-science administration I think we've ever had, ever.

Um, so I mean, I think the, but then when we've had Democrat administrations come in, they've sort of been like Republican light, you know?

Mariann Sullivan: Yeah.

Yeah.

Noah Greenwald: They're like, yeah, we wanna let the agencies do their job, but we don't love regulations either, you know, and we, you know, want to be friendly to business. And, you know, so they've, that's been their take.

And what we really need now is we need an administration that comes in that says, we need regulations, they're essentially, they're essential to, to protecting our future or to protecting wildlife, to protecting our climate. We need regulations, we need agencies that follow the science, and we need the funding for those agencies to do their jobs.

And we just haven't, we haven't had that. And so, you know, I'm, I, I would love to see an administration that comes in and really just recognizes the importance of regulation for protecting the environment, for protecting human health, for, you know, the whole shebang. Yeah. And, uh, that, that's just hasn't been part of the conversation.

And I, I, you know, I, I, I blame the Clinton administration a lot for that, you know, because they came in and they were essentially, you know, pulled to the right and, you know, and sort of normalized Democrats pulling to the right, I think.

Mariann Sullivan: Yeah. Yeah. And well, I mean, we could spend many hours talking about what's, what's gone wrong since the seventies when this law was passed and things were looking so good and, uh, and why since then, it hasn't been seen as the first step to protecting the environment, but as the absolute final ultimate, which we have to protect constantly against attack.

So yeah, we need something, we need a different attitude. Well, this has been extremely enlightening, both in detail and, and just more generally, anything you wanna add before anything I didn't ask you that I, should have, that you wanna add before I let you go?

Noah Greenwald: I'll just note, you know, scientists from around the world are warning that we're in an extinction crisis, and that this really threatens to unravel our way of life. You know, species are the building blocks of ecosystems and ecosystems, you know, moderate our climate, clean our air and water, cycle nutrients, provide us medicine, provide us food, and as we lose more of the parts, we undermine the function of those ecosystems.

So it's, it's really a crisis that's on par with climate change. And, um, I don't, I don't think that's widely known. I think climate change has come into the consciousness and people realize that it's a very serious threat, but extinction is right up there with climate change. And it's really important for people to recognize that.

And I, I would note that they're also very interlocked. You know, habitat destruction is the biggest cause of species extinction, but it's also a very, uh, significant cause of climate change as well. Just, you know, ripping up forests and plowing and all that stuff also results in a substantial amount of emissions.

And so we, to address both, we have to protect more of the natural world. And, you know, I just, I, I, I, I can't emphasize that enough. Yeah,

Mariann Sullivan: Yeah, and, and I'm glad you said that because you know, everybody listening, I imagine everybody listening is totally on board. But as animal lawyers, we tend to think of the animals as important in and of themselves, which is rare. And like we're proud of that. But also, you know, all these are all the arguments and we would like to survive as well.

And we would like the earth to survive as well. Uh, we're not, just 'cause we don't focus on that as much. So I'm, you know, I'm talking about we, like everybody, everybody, I think animal lawyers are very aware of all of this and. But, but it is a different focus and, you know, having those arguments and, and being aware of it and how important the extinction crisis is to our survival.

You know, animal, animal people sometimes don't focus that much on humans, but that's the argument that works. So, uh, so yeah, and I would like to, I would like to see humans survive, maybe, some days.

Noah Greenwald: Yeah. Uh, a better version of ourselves at the very least,

Mariann Sullivan: There we go. There we go. The good guys, only the good guys. All right. I'm gonna let you go, but this has been so enlightening. I really appreciate it, Noah. Um, thank you so much for joining us today.

And, um, thanks also to Vicki Beechler and Akber Khan for their help in producing the podcast. Thank you out there for tuning in. And please remember to subscribe on your favorite pod catcher or on YouTube and, uh, see you next time.