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Arkansas Attorney General: If the courts don’t halt federal agency overreach, then maybe President Trump will
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rkansas Attorney General Leslie Rutledge has made tems in which those species live. The it no secret that she was not a fan of the Obama ad- ESA gave the services the authority ministration and its environmental agencies’ rules to administer the act, including prothat set forth unprecedented constraints over the mulgating rules as necessary to carry use of our country’s water, minerals and other natural resources. out the goals of the act. One imporOne common complaint of the Attorney General has been the tant authority the ESA confers to the LINDSEY BAILEY refusal of the Obama administration and its agencies to consult services is the authority to designate General Counsel or give proper deference to the states or their claims on behalf of certain lands as “critical habitats.” their citizens, specifically their farmers, that the costs of imple- Historically, critical habitats can fall menting the new environmental rules were not given adequate under one of two classifications: occonsideration. cupied or unoccupied. The first type of critical habitat are areas One of the Attorney General’s most notable victories in slow- that are presently occupied by an endangered or threatened speing, if not halting, costly and unlawful environmental regulations cies that contain physical or biological features that are “essential occurred in June 2015, when the U.S. Supreme Court issued its to the conservation of the species” and “which may require speopinion in Michigan v. cial management considEPA. The court ruled erations or protections.” that the EnvironmenFurthermore, an area tal Protection Agency that is currently unocoday, Arkansas, under the leadership of Atoverstepped its authorcupied by an endangered ity when it found that or threatened species may torney General [Leslie] Rutledge, is once again be designated as a critiregulation of the nation’s power plants was “approhabitat if the services among those states leading the effort to thwart unwar- cal priate and necessary,” and determine that “such arissued standards that, by eas are essential for the ranted federal control over environmental issues. its own estimates, would conservation of [such a] cost 1,600 to 2,400 times species.” more than the quantifiThe Final Rules proable benefits of the regumulgated by the services lations. This opinion was a considerable victory for Arkansas and would amend the definition of “critical habitat,” specifically those 22 other states, affirming that agencies such as the EPA “must that are not presently occupied by an endangered or threatened operate within the bounds of reasonable interpretation” when species. Historically, unoccupied areas could be designated as critiimplementing laws and that the EPA “strayed far beyond those cal habitat “only when a designation limited to its present range bounds when it read [The Clean Air Act] to mean that it could would be inadequate to ensure the conservation of the species.” ignore cost when deciding whether to regulate power plants.” Then, if such designation is granted, federal agencies must consult Today, Arkansas, under the leadership of Attorney General with the services to “ensure that any action authorized, funded, or Rutledge, is once again among those states leading the effort to carried out by such agency ... is not likely to jeopardize the continthwart unwarranted federal control over environmental issues. ued existence of any endangered species or threatened species or Arkansas and Alabama are leading 16 other states in a lawsuit result in the destruction or adverse modification of habitat of such filed in an Alabama district court against the U.S. Fish and Wild- species” (emphasis added). Traditionally, the ESA has respected the life Service, among others, asking the court to vacate and enjoin states’ rights to manage and control their respective lands and wathe Final Rules issued by the U.S. Fish and Wildlife Service and ters, acknowledging that “[u]nless preempted by Federal authority, the National Marine Fisheries Service (“the Services”) in Febru- States possess primary authority and responsibility for protection ary 2016. and management of fish, wildlife, and plants and their habitats.” The Endangered Species Act (ESA) was originally passed in The ESA directs that the Services should “cooperate to the maxi1973 to protect and recover endangered species and the ecosys- mum extent practicable with the States.”
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