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Arkansas Attorney General: If the courts don’t halt federal agency overreach, then maybe President Trump will

use of our country’s water, minerals and other natural resources. One common complaint of the Attorney General has been the refusal of the Obama administration and its agencies to consult or give proper deference to the states or their claims on behalf of their citizens, specifically their farmers, that the costs of imple- menting the new environmental rules were not given adequate consideration. One of the Attorney General’s most notable victories in slow- ing, if not halting, costly and unlawful environmental regulations occurred in June 2015, when the U.S. Supreme Court issued its opinion in Michigan v. EPA. Te court ruled that the Environmen- tal Protection Agency overstepped its author- ity when it found that regulation of the nation’s power plants was “appro- priate and necessary,” and issued standards that, by its own estimates, would cost 1,600 to 2,400 times more than the quantifi- able benefits of the regu-


oday, Arkansas, under the leadership of At- torney General [Leslie] Rutledge, is once again among those states leading the effort to thwart unwar- ranted federal control over environmental issues.


lations. Tis opinion was a considerable victory for Arkansas and 22 other states, affirming that agencies such as the EPA “must operate within the bounds of reasonable interpretation” when implementing laws and that the EPA “strayed far beyond those bounds when it read [Te Clean Air Act] to mean that it could ignore cost when deciding whether to regulate power plants.” Today, Arkansas, under the leadership of Attorney General

Rutledge, is once again among those states leading the effort to thwart unwarranted federal control over environmental issues. Arkansas and Alabama are leading 16 other states in a lawsuit filed in an Alabama district court against the U.S. Fish and Wild- life Service, among others, asking the court to vacate and enjoin the Final Rules issued by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (“the Services”) in Febru- ary 2016. Te Endangered Species Act (ESA) was originally passed in 1973 to protect and recover endangered species and the ecosys-


rkansas Attorney General Leslie Rutledge has made it no secret that she was not a fan of the Obama ad- ministration and its environmental agencies’ rules that set forth unprecedented constraints over the

tems in which those species live. Te ESA gave the services the authority to administer the act, including pro- mulgating rules as necessary to carry out the goals of the act. One impor- tant authority the ESA confers to the services is the authority to designate certain lands as “critical habitats.” Historically, critical habitats can fall under one of two classifications: oc-

Legal Corner

LINDSEY BAILEY General Counsel

cupied or unoccupied. Te first type of critical habitat are areas that are presently occupied by an endangered or threatened spe- cies that contain physical or biological features that are “essential to the conservation of the species” and “which may require spe- cial management consid- erations or protections.” Furthermore, an area that

is currently unoc-

cupied by an endangered or threatened species may be designated as a criti- cal habitat if the services determine that “such ar- eas are essential for the conservation of [such a] species.” Te Final Rules pro- mulgated by the services

would amend the definition of “critical habitat,” specifically those that are not presently occupied by an endangered or threatened species. Historically, unoccupied areas could be designated as criti- cal habitat “only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” Ten, if such designation is granted, federal agencies must consult with the services to “ensure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the contin- ued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species” (emphasis added). Traditionally, the ESA has respected the states’ rights to manage and control their respective lands and wa- ters, acknowledging that “[u]nless preempted by Federal authority, States possess primary authority and responsibility for protection and management of fish, wildlife, and plants and their habitats.” Te ESA directs that the Services should “cooperate to the maxi- mum extent practicable with the States.”


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