December 19, 2020 - SACRAMENTO – California Attorney General Xavier Becerra on Friday issued the following statement in response to the U.S. Fish and Wildlife Service’s (FWS) announcement of a final rule establishing a new, unlawful process for excluding areas from critical habitat designations under the federal Endangered Species Act. Today’s final rule, which requires FWS to defer to information provided by outside sources promoting the exclusion of certain habitats, is expected to drastically reduce the amount of critical habitat designated and protected under the Endangered Species Act. 

“In its final days in office, the Trump Administration is advancing yet another irregular action that poses perilous consequences to our precious wildlife and habitats,” said Attorney General Becerra. “In doing so, the Trump Administration unlawfully ignores the plain text and purpose of the Endangered Species Act. That’s unacceptable.”

Enacted under the Nixon Administration in 1973, the Endangered Species Act is intended “to halt and reverse the trend toward species extinction, whatever the cost.” Under Section 4(b)(2) of the Endangered Species Act, FWS is required to designate critical habitat for listed species based on “the best scientific data available” and after considering economic, national security, and other relevant impacts. Areas designated as critical habitat are provided with significant protections to ensure that species have the ability to recover to sustainable population levels so that they no longer need to be listed. 

As a result of today’s final rule, FWS will be required to consider excluding areas from a critical habitat designation when a “proponent of excluding a particular area” presents “credible information” supporting exclusion. In conducting such an analysis, FWS must defer to outside “experts” and “sources” regarding "nonbiological impacts" that are outside the scope of FWS’s expertise. If FWS determines that the benefits of excluding a particular area outweigh the benefits of specifying that area as a critical habitat, FWS must exclude that area, unless it will result in the extinction of a species.

On October 8, 2020, Attorney General Becerra and Massachusetts Attorney General Maura Healey led a multistate coalition in submitting comments opposing FWS’s proposed changes to the process for designating critical habitat.
Source: CA. DOJ