The threatened eastern black rail haunting marshes along the East Coast is set to have its habitat submerged under the rising Atlantic because of climate change.
But if the rail is officially listed as threatened under the Endangered Species Act, the Trump administration’s proposed definitions of the term “habitat” may not protect the bird as it is forced to find a new home farther inland as seas rise.
That’s because the administration’s proposed definitions of “habitat” could, depending on interpretation, exclude areas that a species doesn’t currently occupy, even if it’s pushed there by rising temperatures or tides.
“This will preclude designation of areas where species don’t occur now, but will need to move in response to climate change,” said Noah Greenwald, endangered species director for the Center for Biological Diversity.
Neither Congress nor the federal government has ever defined “habitat” under the Endangered Species Act, which has protected imperiled animals and plants in the U.S. for almost half a century.
Last week the U.S. Fish and Wildlife Service announced two alternate proposals for a definition of the term. The proposals follow a 2018 Supreme Court case establishing an expectation that the federal government would finally declare what “habitat” is under the law.
Closing a Long-Standing Hole
The definition matters because the federal government imposes restrictions on how land is used that is designated as “critical habitat"—habitat that is essential for a declining species to recover—for endangered and threatened species, such as the dusky gopher frog.
The amphibian was at the center of the 2018 Supreme Court case Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, in which the court told the Fifth Circuit to look at what “habitat” means under the ESA in order to figure out what the frog’s critical habitat is. But the Fifth Circuit never defined the term.
The Trump administration proposed the “habitat” definitions as a way to clarify what “critical habitat” is, and to close a long-standing hole in the Endangered Species Act of 1973.
The first proposed definition says “habitat” is where a species lives, including areas that have existing attributes that can support it.
The alternative says “habitat” is where a species lives—including “areas” where the plants and animals don’t currently live but have the “capacity” to support them—but only where the “necessary attributes” to support the species exist today.
A 30-day public comment period on the definitions opened Wednesday. The U.S. Fish and Wildlife Service is expected to finalize a decision on the definition later this year.
Mixed Reviews From Attorneys
Legal practitioners are giving the administration’s “habitat” definitions mixed reviews because they’re broad and open to interpretation.
“They’re rejecting the previous administration’s concepts that an area might in the future develop into habitat, or it could be restored or enhanced to become habitat available to listed species,” said Murray Feldman, a Boise, Idaho-based partner at Holland & Hart LLP.
But declaring that won’t change much in terms of court challenges, he said.
“It’s so generic and so broad the really what’s going to happen is what has been happening—there’s going to be a case-by-case determination based on actual biology and physical needs of species in each case to ascertain what’s habitat,” Feldman said.
The words the administration uses to define habitat need definitions of their own in order to provide more clarity, said Sean Hecht, co-director of the UCLA Law Environmental Law Clinic.
For example, “What does ‘areas’ mean?” he said.
But Brian Gregg, an attorney for the Mountain States Legal Foundation, which represents industry, ranching, and property rights interests in the West, said the proposal brings overdue clarity.
“The definition itself simply states that if a species does not or cannot live in a certain area in its current state, it is not habitat,” Gregg said.
“Moreover, the clarity provided by this new definition will hopefully decrease the amount of time and resources that federal agencies spend on defending (or attempting to avoid) lawsuits brought by activist groups,” Gregg said via email.
Questions About Changing Habitat
The proposal doesn’t account for scientific definitions that consider presently degraded habitat or future territory that could become habitat, Hecht said.
“The rule is written in such a way that somebody reading it might get the impression that they’re providing a generous and expansive definition of habitat,” Hecht said. “It could have been a lot worse than it is. It’s still not nearly as broad and flexible a definition as most scientists who study habitat would say.”
The administration offers little explanation for its approach in defining “habitat” the way it does, and the short 30-day comment period may not be sufficient for the public to consider numerous questions the proposal raises, Hecht said.
The first definition seems to preclude “habitat” from accounting for shifts in an animal’s home territory due to climate change, but the alternative makes that even more explicit, Greenwald said.
“By requiring that an area have ‘existing attributes’ that can support a species, the definition will limit what areas can be designated and protected as critical habitat for species recovery,” Greenwald said. “Most endangered species have lost range and need to be recovered to larger areas to be secure. This definition will limit the ability of the [Fish and Wildlife Service] to do that.”
That’s a problem for threatened and endangered species in the age of climate change because more and more species are seeing their home territory vanish and will rely on currently unoccupied habitat for their survival, said Jayni Foley Hein, natural resources director at the Institute for Policy Integrity at the NYU School of Law.
“Species often become endangered because of habitat loss,” she said. “Thus, a more broad and flexible definition of habitat would better afford the protection that the ESA calls for.”