ENDANGERED SPECIES

Interior, drillers win high-stakes lizard lawsuit

The Obama administration and the oil industry scored a big win in court today as federal judges decided a case surrounding lizards that dwell in prime drilling territory.

A unanimous panel of three judges on the U.S. Court of Appeals for the District of Columbia Circuit ruled against conservation groups, who challenged the Fish and Wildlife Service's 2012 move to withdraw its prior decision to list the dunes sagebrush lizard -- whose habitat is in New Mexico and Texas -- as endangered. The D.C. Circuit upheld a lower court decision that also sided with the Obama administration.

The legal battle over the lizard has been closely watched by the energy industry. State officials and oil interests have feared that an endangered species listing for the tiny species would hamper drilling in the Permian Basin -- historically the nation's largest oil patch (EnergyWire, Jan. 10, 2014).

Defenders of Wildlife and the Center for Biological Diversity contended that FWS's withdrawal of the lizard listing was illegal because voluntary conservation agreements in Texas and New Mexico are "not regulatory mechanisms and are too speculative to ensure the conservation of the species."

The judges found conservationists had waived the argument in lower court proceedings that FWS had improperly relied on voluntary state agreements. "The court thus has no occasion to address whether the Policy's criteria for evaluating voluntary conservation agreements are inconsistent with the ESA," D.C. Circuit Court Judge Judith Rogers, a Democratic appointee, wrote for the court.

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So the judges' opinion focused on the argument that the Texas plan to engage businesses in conservation efforts wasn't certain to be implemented or effective. That argument was "unpersuasive," the court said.

"The Texas plan may not be foolproof, but neither is every regulatory regime," Rogers wrote. "The evaluation of the adequacy of the Texas plan involves the Service's judgment based on its expertise and experience. Appellants have failed to demonstrate that the Service was arbitrary and capricious in exercising that judgment to rely on the Texas plan."

The Obama administration was backed by the American Petroleum Institute in the lawsuit.

FWS concluded in 2012 that "current and future threats are not of sufficient imminence, intensity, or magnitude to indicate that the ... lizard is in danger of extinction (endangered), or likely to become endangered within the foreseeable future (threatened), throughout all or a significant portion of its range."

The D.C. Circuit judges heard oral arguments in the case, Defenders of Wildlife v. Sally Jewell, in November (Greenwire, Nov. 16, 2015).

Click here to read today's opinion.

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