The Endangered Species Act increasingly plays a larger role in environmental law and the federal permitting process for infrastructure projects. Hunton Andrews Kurth Partner Kerry McGrath and Associate Brian Levey give an inside look at the complex process of obtaining federal authorization for “take” of endangered species.
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On August 12, 2019, the US Fish and Wildlife Service and the National Marine Fisheries Service signed final rules instituting the first comprehensive revisions to Endangered Species Act regulations in 33 years. The Services made substantial revisions to their regulations concerning listing and delisting species, critical habitat designations, consultation with federal agencies and the process for establishing protections for threatened species. Two states and numerous environmental groups have signaled their plan to challenge the new rules.
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On June 26, 2019, the Council on Environmental Quality (CEQ) released draft guidance instructing federal agencies on how to consider and document greenhouse gas (GHG) emissions and the effects of climate change when evaluating proposed federal actions under the National Environmental Policy Act (NEPA).
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The controversy continues over the scope of the take prohibition under the Migratory Bird Treaty Act (MBTA). As we noted here, the Solicitor’s Office for the US Department of the Interior (DOI) issued an opinion in late 2017 concluding that the MBTA does not prohibit the incidental take of migratory birds. Although this conclusion was consistent with the holdings of at least two US Circuit Courts of Appeal, the Solicitor’s Opinion came under immediate fire from conservation groups and several former government officials. In May of this year, two environmental groups filed lawsuits in federal court challenging the Opinion. In a court filing earlier this month, the government stated its intention to move to dismiss these suits based on several threshold grounds, such as whether the Opinion is a final agency action subject to judicial review. These lawsuits inject fresh uncertainty into an area of the law that DOI sought to clarify.
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The U.S. Fish & Wildlife Service and National Marine Fisheries Service issued three significant, highly anticipated, proposals to revise the Endangered Species Act regulations on July 19. The proposals address critical habitat designation, ESA section 7 consultation, and protection of threatened species. Once published in the Federal Register, there will be a 60 day comment period for all three proposals. The proposals would make important changes in each area, and are likely to garner substantial attention in public comments.
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As the Trump Administration is pushing forward on its deregulatory agenda and, in particular, its efforts to improve the Endangered Species Act and its implementation by the US Fish and Wildlife Service and National Marine Fisheries Service, the Supreme Court is poised to hear a landmark case on designation of critical habitat under the ESA that could provide some guideposts for the Services’ new regulations.
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Federal agencies must often balance competing policy concerns and legal requirements. This process may be difficult and fraught with intense public feedback, and frequently results in litigation. The U.S. Army Corps of Engineers has found itself in the hot seat over how it manages the nation’s rivers, pitting its obligations under the Endangered Species Act against private property rights. Litigation in the federal courts may soon determine whether, and if so how, responsible the federal government is for unintentional or incidental flooding when the government manages rivers for the benefit of listed species. These cases also bring to the fore a burning question: When can government agencies be held responsible for natural events? With the increase in climate change-related litigation nationwide, this issue will likely only rise in prominence.
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On April 16, 2018, the U.S. Fish and Wildlife Service published a final rule removing the black-capped vireo (BCV) from the Federal List of Endangered and Threatened Wildlife. 83 Fed. Reg. 16,228. The BCV is a migratory songbird that breeds and nests in Texas, Oklahoma, and northern Mexico, and winters along Mexico’s Pacific coast. Its breeding habitat includes shrublands and open woodlands. The delisting decision is based on the Service’s determination “that the primary threats to the [BCV] have been reduced or managed to the point that the species has recovered.” The delisting will take effect on May 16, 2018. The Service will work with the States of Texas and Oklahoma to implement a 5-year post-delisting monitoring program in compliance with section 4(g)(1) of the Endangered Species Act (ESA).
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On Monday, the Trump Administration released an ambitious legislative proposal that aims to stimulate $1.5 trillion in new infrastructure investment over the next 10 years, expedite the federal permitting process, address rural infrastructure needs, and prepare the American workforce for the future. To accomplish those goals, the proposal includes aggressive recommendations to streamline key federal environmental review and permitting processes for infrastructure projects. In addition to traditional forms of infrastructure, such as roads, bridges, and airports, the Legislative Outline for Rebuilding Infrastructure in America addresses drinking and wastewater systems, energy infrastructure, veterans’ hospitals, and Brownfields and Superfund sites.


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