Infrastructure Permitting Tug of War Between Trump Administration and Citizen Groups

While the Endangered Species Act (ESA) prohibits the “take” of threatened or endangered species, it allows the U.S. Fish & Wildlife Service (FWS) to permit the “incidental take”—or unintentional take—of a certain number of listed species as long as the take is incidental to, and not the purpose of, carrying out an otherwise lawful activity. To further address this, the Trump Administration’s Department of Interior recently released guidance to ensure that regional offices consistently address incidental take permits (ITPs) and specifically let companies decide whether to seek such a permit. The guidance reads “service staff can and should advise non-federal parties on the law, our regulations and guidance … but it is not appropriate to use mandatory language (e.g. a permit is “required”) in the course of that communication.” By leaving the decision up to project proponents, it allows developers to weigh the risks and use their own judgment about whether to seek a permit.

The administration’s goals are to reduce regulatory burden and speed up the permitting process. However, citizen groups continue to challenge environmental approvals and permits as a tactic to delay or even stop projects. Here is a snapshot of the resulting permit tug of war playing out in the executive and judicial branches:

Executive branch: Last month, the FWS issued guidance prohibiting employees from telling developers they must obtain ESA ITPs. Obtaining an ITP is generally within the developer’s discretion (unless federal funding is at stake). The guidance also clarifies the limited circumstances under which habitat modification constitutes a “take” under the Act. In order to constitute a take, all of the following three questions must be answered affirmatively:

• Is the modification of habitat significant?
• Does that modification also significantly impair an essential behavior pattern of a listed species?
• Is the significant modification of the habitat likely to result in the actual killing or injury of wildlife?

The guidance specifies that an ITP is only needed when an activity is likely to result in the “take” of listed wildlife and the applicant is not otherwise compelled to apply for an ITP.

Judicial branch: Earlier this month, a Fourth Circuit appellate court vacated an ITP issued by the FWS to the Atlantic Coast Pipeline’s developers. The ITP allowed development of the Atlantic Coast Pipeline project to take certain threatened or endangered species. According to the court, the ITP failed to set clear limits on the take of a listed species and, thus, undermined the ESA’s enforcement and monitoring function. Therefore, as this administration seeks to streamline environmental reviews, environmental groups appeal to courts in their continued efforts to use the ESA as a tool to delay or even stop fossil fuel development projects.

The recently-issued guidance narrows the circumstances that may trigger the need for FWS to issue an ITP under the ESA. But the streamlining may nonetheless be stymied. Less than three weeks later, environmental groups successfully used the appeal of an ITP, a case begun before the guidance was issued, as a roadblock to delay the progress of a major infrastructure project.