Animal Legal Defense Fund v. Bernhardt

The plaintiffs, who had requested vacatur, asked the court to amend or alter the judgment to resolve on the merits the issue of whether the FWS and NMFS failed to comply with the National Environmental Policy Act (NEPA) when they promulgated the 2019 regulations. The plaintiffs said a ruling that the FWS and NMFS violated NEPA would make vacatur the standard remedy and ensure that the regulations were not reinstated, which would be an “unjust result.”

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Three sets of intervenors appealed: private landowner intervenors, 13 states led by Alabama, and industry intervenors including the American Farm Bureau Federation, American Forest Resource Council, and American Petroleum Institute. Intervenors also moved for stay of the vacatur, arguing that the Supreme Court’s April 2022 order staying a district court’s vacatur of another regulation (concerning state water quality certifications under the Clean Water Act) called the district court’s authority to vacate the regulations with out reaching the merits into question.

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The federal district court for the Northern District of California vacated and remanded the 2019 revisions to the Endangered Species Act (ESA) regulations after the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) indicated they had substantial concerns with the amended regulations and said they intended to propose revisions. (The federal defendants had requested voluntary remand without vacatur.) The challenged regulations included a revised definition of “foreseeable future” that provided that “foreseeable future” extends “only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.” The complaint alleged that this requirement that threats be “likely” “increased the level of certainty required to protect species, contravening Congress’s intent to ‘give the benefit of the doubt to the species’” and that “[t]he consequence of imposing this increased certainty requirement is that species facing extinction from the impacts of climate change or other future events involving prediction and uncertainty will improperly be deprived of protection until after it is too late to prevent their extinction, violating the ESA’s command to use the best available science.”

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The court found that the organizational plaintiff had not demonstrated injury-in-fact to its members or that it suffered direct injury.

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