05.03.23

Lankford, Colleagues Work to Overturn Biden’s Rule on Endangered Species Act

OKLAHOMA CITY, OK – Senator James Lankford (R-OK) with Senator Cynthia Lummis (R-WY) led 17 of their colleagues in introducing a Congressional Review Act (CRA) resolution to retain the regulatory definition of habitat within the Endangered Species Act (ESA). By defining habitat, this CRA will provide clarity and transparency to landowners and businesses.

Senators John Barrasso (R-WY), Shelley Moore Capito (R-WV), Markwayne Mullin (R-OK), Dan Sullivan (R-AK), Pete Ricketts (R-NE), Katie Britt (R-AL), Ted Budd (R-NC), Roger Marshall (R-KS), Jim Risch (R-ID), Kevin Cramer (R-ND), John Boozman (R-AR), John Hoeven (R-ND), Steve Daines (R-MT), Joni Ernst (R-IA), Mike Crapo (R-ID) and Ted Cruz (R-TX) cosponsored the CRA. 

“Oklahomans are more than willing to do their part to protect species on the endangered species list, but more and more often the rules and regulations for the Endangered Species Act are not rational,” said Lankford. “The Critical Habitat rule gives the Biden Administration free rein to interpret any geographic area across the country—not just the one a listed species currently occupies—as a ‘critical habitat’ in need of federal protection under the ESA. This radical environmentalist proposal potentially impacts landowners, a variety of industries crucial to Oklahoma, jobs, and existing wildlife recovery efforts nationwide. Oklahomans are tired of the federal government picking animals and plants over people, especially when the ESA only has about a two percent success rate of species recovery since the 1970s. I want to protect our plants and wildlife, but I stand firmly against this rule.”

“There is an important distinction between ‘habitat’ and ‘critical habitat’ for an endangered species,” said Lummis. “By scrapping the definition of habitat within the ESA, the Biden administration is causing chaos and confusion among private property owners throughout Wyoming and the west. Two-thirds of all endangered species are located on private lands, so private property owners need to be partners in species recover, not the enemy. This CRA will ensure that Wyoming landowners are not unfairly targeted by the administration and that habitat designations are based on science, not on politics.”

“The Biden administration is once again burdening Wyoming farmers, ranchers and landowners with regulations that hurt our agriculture producers and reduce land value,” said Barrasso. “I’m proud to join Sen. Lummis’ effort to reinstate the Trump administration’s rule to clearly define habitats under the Endangered Species Act.”

“By finalizing a new critical habitat designation, the Biden administration is once again increasing costs, creating more red tape, and ultimately making it more difficult to build here in America. We should be making it easier to achieve our conservation goals through clear definitions, but the Biden designation would only drive more uncertainty for landowners across our country. I appreciate Senator Lummis for her leadership in challenging this new rule, and will continue to support commonsense checks on this administration’s misguided policies,” Capito said.

“The Biden administration has cast a net so broad that nearly anywhere could qualify as a critical habitat. This misguided definition will have far reaching effects on Idaho’s farming, ranching, land management, and mining projects, and it will delay numerous projects vital to our rural communities. This resolution of disapproval provides the Senate with an opportunity to return some much needed common sense to critical habitat designation,” said Risch.

“Providing an exact definition for ‘habitat’ is necessary for transparency and clarity as stakeholders make decisions regarding wildlife and proper management practices,” said Crapo. “The Biden Administration’s rollback of the definition of ‘habitat’ is unnecessary and only adds confusion when dealing with important wildlife issues.”

“Once again, President Biden has attempted to take a common-sense law intended to protect endangered species and use it to expand the power of executive bureaucrats to intrude on the lives of North Carolina’s builders and job creators. I’m proud to join Senator Lummis’s CRA to stop this latest power grab,” said Budd.

“This CRA is about pushing back on the overreaching Biden rule that doesn’t respect private property rights and would lead to uncertainty for landowners when it comes to whether their property may be designated as critical habitat,” said Hoeven.

“We can all agree that safeguarding our environment and ensuring wildlife habitat is protected for future generations is important. There are commonsense measures we can take to support conservation without trampling on the rights of landowners. I’m pleased to support this effort to block this overreaching regulation,” said Boozman.

“Farmers and ranchers must be left to manage their land how they see fit,” Marshall said. “As the original conservationists, who have worked for centuries to leave the world better than they found it and maintain our land for the enjoyment of their kids and grandkids, we cannot let overreaching and fluctuating habitat definitions undermine the great work our producers are doing. This Administration’s regulatory overhaul of the ESA undermines our landowners and leaves them with a lot of uncertainty. That is why I am fully supporting this CRA that rolls back burdensome limitations on land use and costly mitigation requirements.

“Montanans know best how to manage wildlife in a way that is safe for the animals and for our communities. Biden’s rescission of the clear Trump-era definition of ‘habitat’ opens the door to bureaucratic overreach and frivolous litigation that threatens commonsense practices—we must return to the transparent definition and hand legal certainty back to Montanans,” said Daines.

Rep. Cliff Bentz (R-OR) introduced a companion CRA in the U.S. House of Representatives alongside Reps. Rob Wittman (R-VA), Matt Rosendale (R-MT), Dan Newhouse (R-WA), Tom Tiffany (R-WI), Doug Lamborn (R-CO), David Valadao (R-CA) and Ryan Zinke (R-MT).

The Endangered Species Act (ESA) is being misused, abused, and misapplied, and it is time to get to work on fixing this. If the ESA is to work properly, without bankrupting all businesses and the USA, federal agencies must follow the science and narrowly target their efforts in ways best suited for the species, while not destroying communities. The Biden Administration, when it rescinded the Trump Critical Habitat Rule, gave Washington bureaucrats the green light to designate critical habitat where the species in question had not been seen in decades. This action by the Biden Administration was not about conserving or protecting at risk species. It was about preventing human activities that the Biden Administration disagrees with, like forest management, livestock grazing, and other multiple uses of our public lands and waters in and upon millions of acres of public land. The Trump Administration’s definition of habitat is scientifically based and meets the needs of both our environment and the people living within it. This measure will help to restore sanity to the implementation of the ESA and will provide at least some certainty to millions of Americans who are impacted by at risk species,” said Bentz.

The CRA is supported by the American Farm Bureau, the National Cattleman’s Beef Association, the Public Lands Council, the National Mining Association, the Western Energy Alliance, the Independent Petroleum Association of America, Property and Environmental Policy Research Center (PERC) and the Dallas Safari Club. 

“Western Energy Alliance urges Congress to pass the CRA resolution to overturn the Biden Administration’s Critical Habitat Rule. The Supreme Court very clearly ruled that in order to be designated as critical habitat, lands must be just that, habitat. The Trump rule defined critical habitat accordingly. Now the Biden Administration would have us go back to a time before that unanimous Supreme Court decision and designate lands as critical habitat where not only is the species not even present, but doesn’t even contain the conditions for the species to survive. Such a policy is about controlling land and stopping useful human activities, not about protecting species,” said Kathleen Sgamma, President of the Western Energy Alliance.

“Each time an area is designated as critical habitat, ranchers and landowners bear the brunt of the regulatory burden. These decisions have real impacts on rural communities and landscape management – it is imperative that they be rooted in scientific reality, not hypotheticals. Restoring the 2020 definition of habitat is a commonsense step to reduce the delays and drawn-out, speculative analyses that are so often standing in the way of important wildlife conservation work on the ground,” said Public Lands Council Director Sigrid Johannes. 

"Conserving and restoring habitat is essential to recovering species. Yet the Biden administration has opted to have no definition of habitat to guide its decisions. It would be appropriate to have a definition that reflects current science and the need for better incentives for private landowners to conserve and restore habitat," said Jonathan Wood, PERC Vice President of Law and Policy.

A critical habitat designation has major impacts on landowners, as it reduces the value of any private property within a designation because prospective landowners recognize the burdens that accompany a designation. It also greatly impacts any land with a federal nexus through permits or funding, as a critical habitat triggers significant scrutiny, resulting in burdensome limitations on land use and costly mitigation requirements. 

In December 2020, citing Weyerhaeuser Co. v. U.S. FWS, the Trump administration finalized a rule that defined the term “habitat” as “the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.”

On June 24, 2022, the Biden administration finalized a rule that rescinded the 2020 rule, eliminating the habitat distinction, leaving regulated parties in the dark and undermining the ESA’s purpose of protecting endangered or threatened species. 

The Endangered Species Act directs the Secretary of Interior through the US Fish and Wildlife Service and/or the Secretary of Commerce through the National Marine Fisheries Services to designate critical habitat for listed species. 

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