Arkansas AG Rutledge Files Lawsuit Against 'Critical Habitat' Regulations

Nov 30, 2016

File photo of Arkansas Attorney General Leslie Rutledge.
Credit Michael Hibblen / KUAR News

Arkansas Attorney General Leslie Rutledge and Alabama Attorney General Luther Strange are leading a legal challenge of new U.S. Fish and Wildlife Service regulations.

Rutledge’s office says the lawsuit, joined by 17 other states, challenges regulations developed under the federal Endangered Species Act expanding the definition of a “critical habitat.” The rules were finalized earlier this year. They allow federal officials to designate areas of land as critical habitats if they have the potential, but are not currently known to be, inhabited by endangered species. The Republican Rutledge and the other attorneys general say this would allow the feds to unnecessarily impose restrictions on development and land-use.

A press release from Rutledge’s office notes:

The proposed rules would also allow the federal government to prevent activities it deems could adversely affect habitat features that do not even exist. The states note, “[f]or example, under the Final Rules, the Services could declare desert land as critical habitat for a fish and then prevent the construction of a highway through those desert lands, under the theory that it would prevent the future formation of a stream that might one day support the species. Or the Services could prevent a landowner from planting loblolly pine trees in a barren field if planting longleaf pine trees might one day perhaps be more beneficial to an endangered or threatened species.”

The U.S. Fish and Wildlife Service argues the regulatory changes are needed as animal habitats are likely to shift with the impending threat of climate change. This section of the agency’s rules, filed with Federal Register in February, explains:

As the effects of global climate change continue to influence distribution and migration patterns of species, the ability to designate areas that a species has not historically occupied is expected to become increasingly important. For example, such areas may provide important connectivity between habitats, serve as movement corridors, or constitute emerging habitat for a species experiencing range shifts in latitude or altitude (such as to follow available prey or host plants). Where the best available scientific data suggest that specific unoccupied areas are, or it is reasonable to determine from the record that they will eventually become, necessary to support the species’ recovery, it may be appropriate to find that such areas are essential for the conservation of the species and thus meet the definition of ‘‘critical habitat.’’

The lawsuit was filed in U.S. District Court for the Southern District of Alabama. Other plaintiffs include the National Marine Fisheries Service, the U.S. Department of Commerce and the U.S. Department of the Interior.

Rutledge has made it a hallmark of her tenure as Arkansas's Attorney General to join court challenges against federal environmental regulations. More recently, she has been reported as a possible candidate to lead the Environmental Protection Agency in President-elect Donald Trump’s administration. Rutledge made a visit to Trump Tower in New York earlier this month.