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Marshall leading federal court battle for Trump administration against California-led coalition

Alabama Attorney General Steve Marshall is leading a group of 13 states to defend the Trump administration’s efforts to reform the implementation of the Endangered Species Act against a California-led coalition.

Marshall on Monday announced he has filed a motion in federal court, specifically the Northern District of California, for the State of Alabama to intervene in State of California v. David Bernhardt, U.S. Secretary of the Interior.

This comes after the U.S. Fish and Wildlife Service and the National Marine Fisheries Service recently issued new rules to clarify and reform the way the respective services implement the Endangered Species Act.

Among those changes, the Fish and Wildlife Service will no longer by default treat a newly listed “threatened” species the same as an “endangered” species. By recognizing a middle tier between “unlisted” and “endangered” species, the rule will encourage the services and stakeholders to develop more collaborative and tailored approaches to protecting threatened species. Similar efforts in the past have reportedly been good for both species and landowners.

The services have also agreed to roll back regulations passed by the Obama administration that made it possible for the federal government to regulate land as “critical habitat” for an endangered species even if the species did not occupy that land and could not survive there. The new regulations also provide states and other landowners greater predictability by providing more detail about what sorts of activities will require regulatory approvals from the services.

In general, the new regulations proposed by President Donald Trump’s Department of the Interior are designed to make the regulatory process more transparent, streamline interagency cooperation and spur innovation by states, environmental groups and industry to protect at-risk species.

In a statement, Marsall said, “While the federal government, states, and landowners all wish to safeguard our environment, over the last decade we have witnessed an expansion of federal regulation that was both unlawful and unnecessary. Agencies claimed powers Congress never gave them and imposed burdens on landowners that did not benefit the environment.”

“This federal overreach triggered a number of successful lawsuits by states and landowners. Alabama has led in several of these legal challenges, and we continue to advocate in court for a transparent and commonsense implementation of the Endangered Species Act through our support of the Trump administration’s reforms,” he concluded.

The State of Alabama was joined by the States of Alaska, Arizona (through its Game and Fish Commission), Arkansas, Idaho, Kansas, Missouri, Montana, Nebraska, North Dakota, Utah, West Virginia and Wyoming in filed the motion to intervene on the side of the Trump administration on Monday.

This effort follows November 2016 litigation that Alabama also led, in which 20 states sued the National Marine Fisheries Service, the Fish and Wildlife Service and the Secretaries of the Interior and Commerce, to challenge Obama era rules that oddly would have allowed the federal government to regulate as “critical habitat” land on which an endangered species did not and could not even live. The Trump administration ultimately agreed to withdraw the rules and the states settled that lawsuit in March 2018.

Additionally, Alabama in August of 2017 led 18 states in filing an amicus brief before the U.S. Supreme Court seeking to overturn a lower court decision allowing the federal government to expand critical habitat designation to areas where the protected species could not survive. The Supreme Court unanimously ruled that land is eligible for designation as critical habitat only if it is actually “habitat” for the species.

Sean Ross is the editor of Yellowhammer News. You can follow him on Twitter @sean_yhn

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