Frosh Opposes Proposal to Exclude Critical Habitat from Federal Protections

Maryland Attorney General Brian Frosh is leading a multistate coalition in opposing the U.S. Fish and Wildlife Service’s (FWS) proposal to establish a new process for excluding areas from critical habitat designations under the federal Endangered Species Act.

The proposed process change would require FWS to consider excluding areas from designation as a critical habitat if a proponent presents credible information that supports exclusion. The AGs believe that this would require FWS to listen to outside experts in their decision making process. They also believe that the process change would result in significant reductions to the amount of land protected through the Endangered Species Act, as FWS would now have to exclude any area where it determines that the benefits of exclusion outweigh inclusion unless doing so would result in the extinction of a species.

From the press release:

“Protection of critical habitat is an essential factor in achieving the recovery of our nation’s most imperiled species,” said Attorney General Frosh. “The Trump Administration would allow exploitation of that habitat in violation of the Endangered Species Act. The proposed rule would elevate economic interests over the needs of endangered species and cripple our ability to achieve species recovery.”

In the comment letter, the coalition argues that FWS’s proposal is unlawful and should be abandoned because:

• The proposal is contrary to the plain language and overarching conservation purposes of the Endangered Species Act;
• The proposal is arbitrary and capricious under the Administrative Procedure Act because FWS fails to provide any reasoned explanation for the proposal; and
• FWS incorrectly suggests that the proposal is subject to a categorical exclusion under the National Environmental Policy Act, or that it may complete review at a later date, despite the rule’s major substantive changes that are likely to cause significant environmental effects on imperiled species and their habitat.

Maryland is joined in the coalition by 16 other states and the city of New York.

For more information, read the full press release and the coalition letter.