Judge halts ‘no surprises’ rule; agencies must get more input

WASHINGTON – A federal judge on Thursday temporarily halted the government’s recent practice of assuring private landowners that they won’t face unanticipated requirements for protecting endangered species after a development project is approved.

The ruling was immediately hailed by environmentalists as a breakthrough and attacked by home builders as a huge threat to private development.

Judge Emmet G. Sullivan’s ruling bars, at least for the next six months, federal agencies from providing any such future blanket assurances under the Clinton-era “no surprises” rule. The rule, adopted in 1998, has given home builders, timber and mining companies and other developers some immunity against unforeseen twists in providing species protections.

Sullivan, of the U.S. District Court for the District of Columbia, said that as a result of the rule, the “public has consistently been denied the opportunity . . . to weigh in on decisions likely to have significant effects on public resources.”

His ruling came in a case brought by six groups led by California-based Spirit of the Sage Council, which represents American Indians and environmentalists. They challenged regulations of the Fish and Wildlife Service and the National Marine Fisheries Service, which both protect endangered species.

Sullivan gave the agencies until Dec. 10 to revise their regulations with more public input.

Eric Glitzenstein, a Washington-based attorney for the groups, called the ruling “a message by the court that these policies have to be revisited, and that a much higher emphasis has to be put on species protections.

“We believe it’s an opportunity,” Glitzenstein added, “to finally incorporate public and scientific input into the formulation of policies that may determine whether hundreds of species survive or go extinct.”

Government officials did not immediately respond to requests for comment. Sullivan had previously ruled, in December, that the Clinton administration hadn’t followed proper procedures when writing rules for the conditions when permits could be changed or revoked. He had also sent the rules back to the agencies for reconsideration.

Duane Desiderio, a vice president of the National Association of Home Builders, described the ruling as a serious setback for his industry, especially as most species whose survival is imperiled are found on private property and near developed areas.

“The underlying thrust of the ‘no surprises’ rule is, a deal is a deal. This provision was intended to strike a balance: You can’t stop all development, but you need to protect species,” he said.

But without assurances against what Fish and Wildlife officials describe as unforeseen circumstances, home builders say that government reviews of endangered species requirements are practically meaningless.

“Now, a permit isn’t worth the paper it’s written on,” Desiderio said.