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

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.

Center for Biological Diversity (CBD) filed a lawsuit against the U.S. Fish and Wildlife Service in federal court in the District of Columbia challenging the reclassification of the American burying beetle from “endangered” to “threatened” under the Endangered Species Act. CBD alleged that the reclassification “eliminates key substantive protections” while the species faces the “same dire threats” it faced when it was listed in 1989, and that the species was now “at even greater risk of extinction due to climate change.” The complaint alleged that the beetle was at most risk from climate change in the Southern Plains due to increased average soil temperatures that will make large areas of potential habitat uninhabitable, and that there were also threats to other geographical populations, including the New England population, in the longer term. The complaint asserted claims under the Endangered Species Act and the Administrative Procedure Act.