Wednesday, November 30, 2016

Rutledge files yet another lawsuit against a federal environmental rule: critical habitat

Posted By on Wed, Nov 30, 2016 at 10:20 AM

RUTLEDGE: Opposes critical habitat rule. - BRIAN CHILSON
  • BRIAN CHILSON
  • RUTLEDGE: Opposes critical habitat rule.
Arkansas Attorney General Leslie Rutledge has made it a point to sue the federal Environmental Protection Agency at every turn, in an effort to prevent stricter enforcement of clean air and clean water laws under the Obama administration. Now she's taking on the U.S. Fish and Wildlife Service as well.

On Tuesday, the attorney general's office announced that Rutledge and Alabama Attorney General Luther Strange would lead a coalition of 18 states in a challenge of new rules concerning "critical habitat" for endangered and threatened species, implemented by the Fish and Wildlife Service and the National Marine Fisheries Service.

The states object to a modification of the definition, which took effect earlier this year, that allows certain areas to be declared as critical habitat for endangered species even if the species does not currently occupy that land. In yesterday's release, Rutledge called the change a "dramatic expansion of federal power over land rights [that] has the potential to threaten economic development across the nation."

Though generally critical of the rule change, a February article from the National Law Review sheds light on why exactly the federal environmental regulators want the enhanced authority. It's not for the sake of a "land grab," red-state AGs like Rutledge would have us believe — it's largely because of climate change, which has already shifted the range of many species' habitats and will continue to do so:
The Services go on to explain that “[a]s the effects of global climate change continue to influence distribution and migration patterns of species, the ability to designate areas that a species has not historically occupied is expected to become increasingly important.” For example, such areas may provide important connectivity between habitats, serve as movement corridors, or constitute emerging habitat for a species experiencing range shifts in latitude or altitude (such as to follow available prey or host plants). Where the best available scientific data suggest that specific unoccupied areas are, or it is reasonable to infer from the record that they will eventually become, necessary to support the species’ recovery, it may be appropriate to find that such areas are essential for the conservation of the species and thus meet the definition of “critical habitat.”” Id.
If you don't believe climate change is real, though, there's no need to worry about such things. It's telling that the word "climate" appears nowhere in the complaint filed yesterday.

Along with Alabama and Arkansas, the suit includes Alaska, Arizona, Colorado, Kansas, Louisiana, Michigan, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Carolina, Texas, West Virginia, Wisconsin and Wyoming.

Here's the full release from the Arkansas AG:

Rutledge, Strange Lead Coalition Challenging Expansion of Critical Habitat Definition
Says, it ‘has the potential to threaten economic development across the nation’

LITTLE ROCK – Arkansas Attorney General Leslie Rutledge and Alabama Attorney General Luther Strange are leading a coalition of 18 states in a lawsuit challenging new federal rules that broadly expand the definition of “critical habitats” for endangered and threatened species.

The states charge that the rules would allow the federal government “to designate areas as occupied critical habitat, containing the physical and biological features essential to conservation, even when those areas are neither occupied nor contain those features.” The new rules effectively declare that any area currently unoccupied by an endangered species but may potentially host an endangered species could be classified as critical habitat subject to stringent regulations.

“This dramatic expansion of federal power over land rights has the potential to threaten economic development across the nation,” said Attorney General Rutledge. “As an avid sportsman and landowner, I want our endangered species to be protected for future generations, but these new rules will mire wide swaths of land in bureaucratic red tape under the notion that the property might theoretically someday be beneficial to a certain species, even when there is no actual research or data to support that speculation.”

The proposed rules would also allow the federal government to prevent activities it deems could adversely affect habitat features that do not even exist. The states note, “[f]or example, under the Final Rules, the Services could declare desert land as critical habitat for a fish and then prevent the construction of a highway through those desert lands, under the theory that it would prevent the future formation of a stream that might one day support the species. Or the Services could prevent a landowner from planting loblolly pine trees in a barren field if planting longleaf pine trees might one day perhaps be more beneficial to an endangered or threatened species.”

The lawsuit was filed today in U.S. District Court for the Southern District of Alabama against the U.S. Secretary of the Interior, National Marine Fisheries Service, U.S. Secretary of Commerce and U.S. Fish and Wildlife Service.

Joining Rutledge and Strange in the lawsuit are the states of Alaska, Arizona, Colorado, Kansas, Louisiana, Michigan, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Carolina, Texas, West Virginia, Wisconsin and Wyoming.

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