February 2024 Animal Law Updates: Don’t Drain the Swamps – GWC Mag

February was an important month for environmental litigation in D.C.’s federal district courts. In two cases, the courts (respectively) prevented the destruction of (1) wetlands in the Prairie Pothole Region of the northern Great Plains, and (2) Florida habitats critical to endangered species like the Florida panther. In both cases, Conservation groups challenged the unlawful decisions of federal agencies, and in both cases the courts sided with the Conservation groups, stopping the agencies’ improper and destructive practices. The theme is a good one: courts holding agencies accountable for taking shortcuts and jeopardizing wildlife.

National Wildlife Federation v. USDA

In 1985, Congress started a Conservation program to stop farmers from destroying wetlands. Since farmers in the United States typically get lots of benefits, especially from the Department of Agriculture (USDA), the wetland protection program wields these benefits as an incentive. Specifically, the program eliminates benefits for farmers who drain, dredge, fill, level, or otherwise change or use wetlands for agricultural purposes.

In light of the program, a big question became: where are the protected wetlands? Congress delegated that question to the USDA’s Natural Resource Conservation Service (NRCS), which drafted and certified wetland maps.  And NRCS did this clearly . . . after 1996. Unfortunately, some of the maps drafted between 1990 and 1996 were less than clear. As a result, NRCS has needed to revisit these pre-1996 maps on a case-by-case basis to determine whether or not they should be certified.

To the agency’s credit, it reviewed pre-1996 maps logically through 2013 by certifying the maps that were accurate and in compliance with quality criteria. Starting in 2013, however — purportedly to clear a backlog — things went awry, and the agency instead made quick decisions based on whether the old maps were legible, tossing out those that were not even if they accurately identified wetland areas. The agency cemented this new practice in 2020 and, predictably, the lazy new policy caused an increase in wetland destruction.

So, was it illegal for NRCS to certify only the “legible” maps and toss out the rest? It should have been, but surprisingly that’s not a slam dunk. Courts regularly defer to agencies, even if their policies aren’t the smartest. Courts will, however, be skeptical of an agency’s decision if it changes a long-standing policy without any reasoned explanation. Here, NRCS didn’t bother to justify its new policy for reviewing wetland maps. Instead, it falsely claimed the policy had never changed, and once the Court saw through this argument, it was a short step toward ruling that NRCS had acted improperly.

Now, once again, thanks to Conservation groups, NRCS needs to certify all accurate maps of wetlands and protect wetlands from agricultural expansion.

Center for Biological Diversity v. Regan

The government has made its fair share of bad decisions when it comes to the environment. But it’s hard to imagine much worse decisions than the ones at issue in this second case. To understand why, it’s important to have some background on the Endangered Species Act and the Clean Water Act.

The Endangered Species Act (ESA) is one of the country’s most protective laws for wildlife: it establishes strict protocols to ensure that new projects do not harm threatened or endangered species, either directly or through the destruction of their habitats. While the nuances are complex, the basic idea is simple: projects require consultations with the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS), these agencies provide a detailed analysis of whether the project — alone or in combination with other projects — can harm threatened or endangered species, and if so they offer safer approaches to the project.

Then there’s the Clean Water Act (CWA), which is a highly effective law for protecting the nation’s waterways. Under the CWA, it’s illegal to pollute the waters of the United States without a permit from the Environmental Protection Agency (EPA).

Towards the end of the Trump administration, the EPA and FWS did something crazy: first, the EPA gave Florida its power to control in-state permitting under the CWA. Then, FWS made a one-size-fits-all decision that Florida’s permits would not require case-by-case scrutiny under the Endangered Species Act.  So, in short, Florida (rather than the federal government) could give permits to Florida companies to pollute waterways, and these companies would not need to worry about complying with the strongest wildlife protection laws.

Again, fortunately, the Court held the agencies accountable for these decisions and ruled that they violated the Endangered Species Act. For now then, at least, Florida can’t run roughshod over endangered species.

Speak Up Tee By Tiny Rescue: Animal Collection

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