Let’s be clear.
The U.S. Fish and Wildlife Service has got caught twisting Endangered Species Act law to deny the rusty patch bumblebee critical habitat.
In granting the rusty patch bumblebee endangered species status in 2017 the FWS found “historically, the rusty patched bumblebee has been documented from 926 populations; since 1999, the species has been observed at 103 populations, which represents an 88 percent decline from the number of populations documented prior to 2000.”
Nowadays, the rusty patch bumblebee is found mostly in small, isolated pockets in the upper Midwest. Its decline mirrors other species of bees facing pesticides, parasites, ecological contamination, and habitat loss.
ESA status should have triggered a timely scientific appraisal assessing whether rusty bees should receive critical habitat status, which would provide the little critters additional protection. Legally, FWS was required to determine critical habitat status by 2019 but crickets – nothing doing.
The National Resources Defense Council sued FWS over all the dithering, winning a judgment giving FWS until July of 2020 to rule on critical habitat status.
And that’s when FWS went off the rails. In a real head scratcher, the FWS ruled granting the rusty patch bumblebee critical habitat status was “not prudent” and that protecting the bee’s habitat would have little or no benefit.
The NRDC immediately sued again saying the FWS wrongly applied the not prudent exception, arguing Congress intended it to be used rarely, and only for clear circumstances in which a species would not benefit:
“The Service did not rely on any of the first four subsections of this regulation, nor did it explain that designating critical habitat would not benefit the bee. Rather the Service relied on the fifth subsection (the catch-all provision) to otherwise determine that designation of critical habitat would not be prudent based on the scientific data available.”
And the NRDC claimed the FWA applied a new standard, drawn up out of thin air, that “the Service reasonably determined that the designation of critical habitat would not confer any additional meaningful benefit (italic added) to the species.”
For its part the FWA argued the NRDC didn’t have standing to sue, and even if it did, the agency dutifully followed the regulations.
U.S. District Judge Amy Berman Jackson found the FWA arguments without merit. In her stinging ruling she writes:
“Whether critical habitat would not confer any ‘meaningful’ benefit, though, is not the legal standard. Only if the designation ‘would not be beneficial to the species’ would it be appropriate for the Service to withhold a critical habitat designation, which according to the defendants, is intended to be a rare occurrence.”
“By rewriting its ‘beneficial to the species’ test for prudence into a ‘beneficial to most of the species’ requirement, the Service expands the narrow statutory exception for imprudent designations into a broad exemption for imperfect designations.”
And for good measure, Jackson found the FWA’s argument that the rusty patch bumblebee’s ability to survive in a variety of habitats was not a satisfactory explanation for denying critical habitat status:
“Second, whether the bee is a habitat generalist is a different question than whether it could gain any potential benefits from a critical habitat designation. Defendants argue that the plaintiffs ‘fail to point to anything in the record demonstrating that the designation of critical habitat would afford some benefit to the species.’ But again, defendants upend the standard. It does not matter whether critical habitat would confer ‘some’ benefit, only whether the designation ‘would not be beneficial to the species.’ ”
Jackson vacated the FWS 2020 Federal Register ruling and sent it back to the FWS for further consideration. The ruling is a victory for the rusty patch bumblebee in particular, but more generally for other ESA species. The court’s ruling should send FWS’s bogus meaningful benefit standard to the trash heap, instead of being weaponized on some other endangered species.
Hopefully the FWS makes amends for all this tomfoolery. Little rusty received EAS status six years ago. It’s time to grant the bee critical habitat status.
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