Northern Long-Eared Bat Update, What Does The Recent Court Decision Mean For Your Projects?
OPINION BY: JUSTIN C. JOHNSTON, MS, MBA, PRESIDENT, BIG PINE CONSULTANTS, LLC
On January 28, 2020, the D.C. Federal District Court Judge, Emmet G. Sullivan, released his opinion for the case Center for Biological Diversity v. Everson, No. 15-CV-477, 2020 WL 437289 (D.D.C. Jan. 28, 2020). In the opinion, Judge Sullivan rejected the U.S. Fish and Wildlife Service’s (FWS) 2015 decision to list the northern long-eared bat (Myotis septentrionalis, NLEB) as “threatened” with a “4(d) rule” rather than “endangered” under the Endangered Species Act. What does this mean for your Project?
In the short term, the answer is “nothing”. In the longer-term, the answer is “probably nothing”. Anything further out than a couple of years is not knowable, currently.
First, some background. After populations of the NLEB began plummeting from the spread of White Nose Syndrome, FWS originally listed the NLEB as threatened and included a 4(d) rule that allowed incidental takes for various activities such as tree clearing for utility projects and wind farms. At the time, industry groups were concerned that a listing as “endangered”, which would not have allowed for incidental takes, would have made permitting projects much more difficult. For several reasons, Judge Sullivan remanded the rule back to FWS for further consideration and rulemaking. I won’t go into the legal arguments in this article. If you would like to, you can read the full opinion here. Importantly, Judge Sullivan did not vacate the current “threatened” status with a 4(d) rule. Instead he remanded it to FWS to make a new listing decision consistent with the opinion and left the current status and incidental take provision intact.
For your Projects that are planned to happen this summer, you can breathe a sigh of relief. Project reviews by FWS staff will be continuing following the same guidance as they have for the past couple of years. No changes are happening in the short term. But what about next year? Or the year after?
There are a lot of ways things can play out. Note above that we assumed no appeals would take place. As often happens, federal agencies may appeal rulings. A decision on whether or not to appeal will be up to the leadership of the FWS. Based on court rules for the D.C. Circuit, an appeal must be filed within 60 days after entry of the judgment or order appealed from if one of the parties is … (ii) a United States Agency (Rule 4). Based on the Judgement date of January 28, 2020, appeals may be filed by either party up to Saturday, March 28, 2020. The timeframe may be extended, if requested, for up to another 30 days. Assuming the Department of Justice (DOJ) attorneys are busy and ask for an extension that is granted by the court, they would have up until Monday, April 27, 2020 to file for an appeal. If an appeal is granted, the timeline for submitting various motions, responses, discovery, conferences, and many other court procedures may take a year or more. The remand would be stayed for that timeframe, so very little would be likely to change until after the appeal process is completed, likely well into 2021 and possibly 2022. Given that the leadership of the FWS includes appointees from the current Trump administration that are friendly towards development activities in general, an appeal of this decision would not be a surprising development. Given that the gears of government and wheels of justice both turn slowly, and assuming the DOJ strategy is to delay action, a filing of an appeal would likely be done very close to the deadline, and after an extension is requested. You can watch the docket to see if an appeal is filed if you are so interested.
If the first appeal process results in upholding the District Court findings, the process above can potentially be repeated with either an appeal en banc or to the Supreme Court of the United States of America (SCOTUS). However, a writ of certiorari, the acceptance of the appeal at the higher levels, is rarely granted. According to the website, supremecourtpress.com, only about 2.8% of such appeals were granted by SCOTUS in 2017. It would not be unheard of to file such appeals even if only as a legal strategy to delay taking the actual actions required in the District Court Order while the appeal process is happening, even if it ultimately results in a denial to hear the case. This may add a number of additional months before a final legal outcome would occur.
If after all the legal wrangling described above still results in upholding the District Court opinion of Judge Sullivan, then the FWS would have to go back and undertake further rulemaking including drafting a rule, publishing it, awaiting comments, and finalizing the rule. For context, the original rulemaking process began with submission of a proposed rule on October 2, 2013 (78 FR 61046) and was not finalized until April 2, 2015, a period of 547 days (80 CFR 17974, Department of the Interior, Fish and Wildlife Service). Not all rules take that long, and this one being more of an update to an existing rule, perhaps it would be faster. It still gives you a ballpark of what kind of timeline a rule might take. Even if FWS elects not to submit any appeals, the process of rulemaking takes time and would likely not be completed until some time in 2021 or 2022.
Furthermore, if FWS does do a new rulemaking, there would be no guarantee that it would result in an “endangered” finding by FWS. Under the opinion, FWS has to take into account additional information, but the opinion does not direct FWS to arrive at a finding that the NLEB is “endangered”. FWS may maintain the NLEB as “threatened”. FWS may also arrive at a conclusion of the NLEB being “endangered” in some parts of its range while being “threatened” or even overpopulated in others.
So far, we have assumed that President Trump remains in office after the 2020 elections. What happens if Trump loses? In that case, we would assume that a democrat with closer ties with environmental groups than developers would make decisions on the leadership of the Department of the Interior and the FWS. Let’s say the new president elect announces cabinet picks and on day 1 of the presidency, the senate begins confirmation hearings. The Washington Post has a good article describing the timelines to filling cabinet seats here. The shortest time was for George W. Bush who filled his cabinet seats by January 30. The longest timeframe was for Trump who did not fill all seats until April 27. The timeline will depend a lot on the partisan divide that has persisted since even before Trump took office. If we assume a middle ground of mid March, assuming it takes two months to draft a new rule, plus a 60 day comment period, plus finalizing the rule, I expect it will likely be September or October, 2021 before a new final rule is promulgated if Trump loses the White House.
During the timeframes above, FWS biologists as well as state agencies will be continuing to conduct studies on the impacts of White Nose Syndrome. For all we know, the bats may rebound quickly. To be clear, no biologist is predicting that, but nature can surprise us. There may be an unknown genetic White Nose Syndrome resistance allele that was uncommon and that is now predominant after this natural selection event and allows populations to come back strongly. Of course, there could be continued declines as well that could prompt even the current administration to consider relisting NLEB as endangered. Given what has been observed for the past 5 years, either scenario is probably equally likely (or unlikely as the case may be). My point is, we don’t know what we don’t know yet. The science surrounding the NLEB status may change in the next year or two.
As you by now understand, there is a lot of uncertainty regarding the long-term path related to the NLEB status as threatened with a 4(d) rule or endangered. For those Project Managers out there, I have included a gantt style chart below summarizing what I believe the timeline might look like moving forward. Rely on it at your own risk. Politics, legal wrangling, rulemaking processes, and the future science surrounding the NLEB and White Nose Syndrome will likely all play a role in the ultimate timeline, long term. In the meantime, try not to stress out about how this court opinion will impact your projects this summer because it probably won’t.
- Rule 4. Appeal as of Right – When Taken. CIRCUIT RULES of the UNITED STATES COURT OF APPEALS for the DISTRICT OF COLUMBIA CIRCUIT (Together with the corresponding Federal Rules of Appellate Procedure) Circuit Rules Effective January 1, 1994, As Amended Through December 1, 2019 Federal Rules Effective July 1, 1968, As Amended Through December 1, 2019. Available at: https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20RPP%20-%20Circuit%20Rules/$FILE/RulesFRAP20191201a.pdf
- The Supreme Court Press. Success Rate of a Petition for Writ of Certiorari to the Supreme Court. Copyright 2013-9. Available at: https://supremecourtpress.com/chance_of_success.html. Accessed February 14, 2020.
- 80 CFR 17974. DEPARTMENT OF THE INTERIOR Fish and Wildlife Service. [Docket No. FWS–R5–ES–2011–0024; 4500030113] RIN 1018–AY98. Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Northern Long-Eared Bat With 4(d) Rule. Available at: https://www.govinfo.gov/content/pkg/FR-2015-04-02/pdf/2015-07069.pdf. Accessed on February 14, 2020.
- Schaul, Kevin and Kevin Uhrmacher. 2017. Trump’s wait for his major Cabinet picks was nearly the longest in 30 years. The Washington Post. Available at: https://www.washingtonpost.com/graphics/politics/how-long-confirmations-will-take/. Accessed February 17, 2020.
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