As we discussed in a previous post, on January 14, 2016, the U.S. Fish and Wildlife Service (Service) published a final 4(d) rule under the Endangered Species Act for the northern long-eared bat. As we noted, although the final 4(d) rule was widely viewed as a win for the wind industry, environmental organizations were generally displeased, arguing that the species should have been listed as endangered instead of threatened. Now, a coalition of environmental organizations led by the Center for Biological Diversity is threatening to sue the Service, alleging that the final 4(d) rule is unlawful. In addition to complaining that the species should have been listed as endangered rather than threatened, the notice alleges that the final 4(d) rule fails to adequately provide for the conservation of the species. The environmental groups contend that the measures adopted by the Service to protect hibernacula and roost trees are not sufficiently protective.
We anticipate that the environmental groups will file suit in federal district court following expiration of the 60-day notice period. We are monitoring this case closely and will provide updates on this blog if and when litigation ensues.