TRENTON – Attorney General Gurbir S. Grewal today joined a coalition of Attorneys General in suing the federal government to challenge new rules that would significantly weaken the Endangered Species Act (ESA), the nation’s decades-old conservation law protecting threatened and endangered wildlife.

The multi-state action, filed in the U.S. District Court in California, follows a package of final rules adopted in August by the Fish and Wildlife Service and the National Marine Fisheries Service. The rules make it easier for regulators to remove a species from the endangered list and weaken protections for threatened wildlife (the classification just below “endangered”). The rules also take the unprecedented step of allowing officials to consider economic factors – and to disregard the effects of climate change – when making key decisions about whether and how to protect a species. These changes will all make it easier for the Administration to allow mining and drilling in protected areas.

“The Administration is again demonstrating its disregard for the longstanding federal rules that protect our environment and our wildlife,” said Attorney General Grewal. “The Endangered Species Act is quite clear about the need to protect threatened and endangered wildlife, but the Administration’s rules undermine that promise at every turn, opening the door to mining and drilling in long-protected areas. The rules are unlawful and harmful for New Jersey, and so I am fighting them in court.”

“Like too many Trump administration proposals, these proposed changes to the Endangered Species Act take us backward, not forward,” said DEP Commissioner Catherine R. McCabe. “They demonstrate a willful ignorance of the effects of climate change and a wanton disregard for the progress New Jersey and the entire country have made in protecting endangered species. Once again, the President has prioritized industry gains over protecting our nation’s people and wildlife and I am pleased New Jersey is standing up to the challenge.”

Since the ESA was signed into law in the early 1970s, protected species categorization has been strictly science-driven.

Under the new rules, however, government officials can take into account a number of economic factors in determining whether to protect a species. At the same time, the rules make it easier for U.S. officials to disregard the potential effects of climate change in making species protection decisions.

Led by the states of California and Massachusetts, the lawsuit filed today alleges violations of the ESA itself, as well as violations of the federal Administrative Procedures Act (APA) and the National Environmental Policy Act (NEPA).

The complaint filed today asserts that the new ESA rules show federal disregard for the text and “overriding purpose” of the ESA, its “legislative history,” and for “numerous binding judicial precedents” that resulted from court reviews of the law. The suit also contends the Trump Administration’s action “lacked any reasoned basis.”

With respect to the ESA, the lawsuit highlights that the Supreme Court has already held that the statute ensures that science – rather than these sort of cost considerations – will drive ESA decision-making. As the Court has held, the ESA was designed to “halt and reverse the trend toward species extinction, whatever the cost.” In the same 1978 decision, the Supreme Court also held that an intent to stop species extinction regardless of cost is evident in “literally every section of the statute.”

The lawsuit also asserts that the U.S. Fish and Wildlife Service and National Marine Fisheries Service failed to provide a reasoned explanation for deleting language in the prior ESA rules requiring that decisions on species listing and delisting must be made “without reference to possible economic or other impacts of such determination.”

In addition, the complaint alleges that both agencies repeatedly failed to consider the need to address threats to endangered species resulting from climate change, an independent violation of the APA and NEPA.

The ESA – and the prior rules implementing that statute – have been credited with the rescue of important and high-profile species from extension, including the bald eagle, grizzly bear and humpback whale. New Jersey has its own strong laws designed to protect endangered species, which it will continue implementing.

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