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Center for Biological Diversity v. Everson

ELR Citation: 50 ELR 20031
Nos. 15-477 (EGS) and 16-910 (EGS), (D.D.C., 01/28/2020) (Sullivan, J.)

A district court held that FWS' decision to list the northern long-eared bat as threatened rather than endangered under the ESA was arbitrary and capricious. Environmental groups argued that the rationale FWS relied on to reach its decision—that the species had not yet suffered declines and appeared stable in an area not yet affected by white-nose syndrome (WNS) that makes up about 40% of the bat's total geographic range—was not supported by the best available scientific data. The court found that FWS failed to provide a rational explanation for why the significant disparity in population density between the 60% of the range that was WNS-infected and the 40% that was not infected supported a threatened rather than endangered determination, and that such an explanation was necessary. The groups further argued that FWS disregarded the cumulative effects that factors other than WNS could have on the species when it explained its rationale for the determination. The court agreed, finding that FWS relied solely on WNS and failed to consider other factors and the cumulative effect on other factors that the Service itself analyzed, and in so doing failed to articulate a rational connection between its own analysis and its determination. The groups also argued that FWS unlawfully relied on a policy it promulgated alongside NMFS to justify its decision to ignore the fact that the species had declined more significantly in the "core of its range." The court found that the policy, which allowed the Service to avoid analyzing whether a species was endangered in a significant portion of its range if it determined that the species was threatened throughout all of its range, was unlawful, and thus that FWS' application of the policy to the bat was unlawful. It therefore vacated that provision of the policy, and remanded to FWS to make a new listing decision for the bat.