Center for Biological Diversity v. U.S. Fish & Wildlife Service

The D.C. Circuit Court of Appeals affirmed a district court judgment upholding a downlisting rule promulgated by the U.S. Fish and Wildlife (FWS) in 2020 that changed the status of the American Burying Beetle under the Endangered Species Act from endangered to threatened. The FWS concluded that the beetle was not currently in danger of extinction because it faced “relatively low near-term risk of extinction” but that it was likely to become endangered within the foreseeable future (2040–2069) throughout all of its range as a result of increasing temperatures due to climate change and land use changes. The D.C. Circuit rejected the Center for Biological Diversity’s (CBD’s) contention that the downlisting was at odds with the statutory definitions of “endangered” and “threatened.” In addition, the D.C. Circuit found that the FWS’s determination that the beetle was not currently in danger of extinction was grounded in the record and reasonably and adequately explained. The court also found that CBD did not have standing to seek vacatur of a Section 4(d) rule establishing protections for the beetle because vacatur of the rule would not redress CBD member’s injury. Judge Pan dissented from decision to uphold the downlisting rule; she wrote that in her view the FWS did not adequately support the conclusion that climate change did not put the beetle in danger of extinction in the near term.

The federal district court for the District of Columbia upheld the U.S. Fish and Wildlife Service’s (FWS’s) “downlisting” of the American burying beetle from endangered to threatened under the Endangered Species Act (ESA). In a 2019 report, FWS identified climate change as a primary threat to the beetle that likely would result in the extirpation of the Southern Plains populations of the beetle between 2040 and 2069. The court rejected the plaintiff’s contention that these factual findings compelled a conclusion that the species was “in danger of extinction” throughout a significant portion of its range and thus “endangered” under the ESA definition. The court concluded that the ESA compelled FWS’s interpretation “that the only difference between an endangered species and a threatened one is the different timeframes of the danger of extinction,” with an endangered species facing a present danger of extinction and a threatened species likely to face that danger in the “foreseeable future.” The court further found that FWS was entitled to deference under Chevron step two with respect to its conclusions that “current danger of extinction can be low even if the best scientific evidence shows that extirpation is very likely in the far future because of extant forces” such as climate change and that the 2040¬–2069 period in which extirpation is likely in the Southern Plains region “constitutes danger in the foreseeable future” within the ESA’s meaning. The court also found that the plaintiff had not identified any flaws in the FWS’s consideration of the evidence that would support a conclusion that FWS arbitrarily failed to consider evidence that the beetle faced a risk of earlier extirpation. The court also rejected the plaintiff’s contentions (1) that the notice-and-comment process was inadequate, (2) that FWS did not provide a sufficient explanation for its change in position from a 2008 review that found that the beetle remained endangered, and (3) that more stringent protections were required for the beetle even if the species was downlisted.

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