The Nickel Report

A recent Northern District of California decision vacated portions of four Endangered Species Act (ESA) Section 7 consultation provisions, restoring earlier regulatory text and prompting questions about how the US Fish and Wildlife Service (FWS or the Service) will handle consultations moving forward. Center for Biological Diversity v. Burgum, No. 24-cv-04651 (N.D. Cal. Mar. 30, 2026). Based on our discussions with the Service and the materials it prepared, FWS has resumed consultations and, by its own account, is applying a framework that is largely consistent with its pre-order practice.

Background

The current dispute is the latest chapter in litigation over the FWS and National Marine Fisheries Service (Services) 2019 ESA regulations. Environmental plaintiffs challenged the 2019 consultation rule and listing/critical habitat rule, and that litigation was later remanded without a merits ruling after the change in administrations. The Services then revisited the regulations in 2024, leaving some 2019 changes in place, which prompted a new lawsuit challenging both retained and revised provisions.

The court declined the Services’ request to stay or remand the case in light of yet another ongoing ESA rulemaking and instead reached the merits.

Northern District of California’s Key Holdings

The court invalidated aspects of four Section 7 consultation provisions but rejected challenges to two Section 4 provisions and also rejected the plaintiffs’ National Environmental Policy Act (NEPA) claims. As a result, the court set aside what it saw as the unlawful Section 7 provisions and reinstated the earlier regulatory language now identified by FWS as controlling for Section 7 consultation documents, including biological assessments, biological evaluations, letters of concurrence, and biological opinions.

The four Section 7 changes set aside by the court involved:

1. The definition of “effects of the action”
2. The treatment of mitigation measures
3. The definition of “destruction or adverse modification”
4. The Services’ duty to request reinitiation of consultation

Key Changes Following the Northern District of California Decision

     1. “Effects of the action” returns to the 2018 formulation

Before the 2019 rulemaking, the ESA regulation defined “effects of the action” to “refer[] to the direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action.” 50 C.F.R. § 402.02 (2018). It further defined “[i]ndirect effects” as “those that are caused by the proposed action and are later in time, but still are reasonably certain to occur.” Id.

The 2019 rulemaking amended the definition to “all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action” and provided that “[a] consequence is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur.” 50 C.F.R. § 402.02 (2019) (emphasis added). This 2019 definition was left in place by the 2024 rulemaking.

Plaintiffs argued that the “reasonably certain to occur” modifier contradicts the statute’s requirements that the agency use the best scientific data available and agencies ensure that their actions are “not likely to jeopardize” listed species. The court agreed that requiring effects of the action to be “reasonably certain to occur” before the Services can consider them violates the statute’s text for both of those reasons.

The court rejected federal defendants’ argument that “reasonably certain to occur” is synonymous with “likely.” The court also rejected the notion that a proximate cause standard should be imported into the effects analysis for Section 7.

The governing definition of “effects of the action” is now the 2018 version. Under that reinstated text, “effects of the action” includes direct and indirect effects on the species or critical habitat, together with the effects of interrelated or interdependent activities that will be added to the environmental baseline.

One practical question after the decision is whether “reasonable certainty” had been eliminated from Section 7 consultations. But the reinstated 2018 definition provides that “[i]ndirect effects are those that are caused by the proposed action and are later in time, but still are reasonably certain to occur.” So, the “reasonable certainty” standard should continue to apply to indirect and cumulative effects. The district court’s reasoning raises questions about how aggressively that standard should be applied, so the Service expects to be circumspect and use it where necessary.

In addition, the court’s ruling did not disturb the standalone definition of “environmental baseline” adopted after 2019, and FWS considers that definition to remain valid and fully consistent with the reinstated 2018 “effects of the action” language. That point is important because it means the court did not erase every post-2019 consultation concept. Instead, the main change is that the broader 2018 structure for analyzing effects is back in place, while the separate environmental baseline definition remains operative.

     2. Mitigation can no longer be credited under the 2019 “no binding plans” language

The ESA regulations require the Services, in consulting with an action agency and preparing a biological opinion, to “give appropriate consideration to any beneficial actions as proposed or taken by the Federal agency or applicant.” 50 C.F.R. § 402.14(g)(8). In the 2019 rulemaking, the Services added the following language: “Measures included in the proposed action or a reasonable and prudent alternative that are intended to avoid, minimize, or offset the effects of an action are considered like other portions of the action and do not require any additional demonstration of binding plans.” Id. (emphasis added).

Plaintiffs argued that the new regulations prevent the Services from fulfilling their statutory obligation to ensure against jeopardy by forcing them to consider amorphous, non-binding mitigation plans in making no-jeopardy findings. The court agreed, noting that Ninth Circuit caselaw requires mitigation measures to be excluded from consideration unless they are binding on or guaranteed by the agency or otherwise reasonably certain to occur.

The court’s vacatur removed the 2019 language stating that measures included in the proposed action or a reasonable and prudent alternative do not require an additional demonstration of binding plans. In practical terms, that means the Services are back to the prior approach under which beneficial actions may be considered, but the regulation no longer contains the 2019 assurance that mitigation embedded in the action can be accepted without further demonstration of enforceability or certainty.

     3. “Destruction or adverse modification” no longer includes “as a whole”

Section 7 requires the action agency and the Services to consult to “insure” that the agency action will not cause “jeopardy” to listed species or “destruction or adverse modification” to their critical habitats. 16 U.S.C. § 1536(a)(2).

Before 2019, the regulations defined “destruction or adverse modification” to “mean[] a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species.” 50 C.F.R. § 402.02 (2018). In 2019, the definition was amended to “a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.” 50 C.F.R. § 402.02 (2019) (emphasis added).

Plaintiffs argued that the Services erred in introducing the narrowing language “as a whole.” The court agreed and found that the use of the modifier “as a whole” contradicts the statute because it allows “adverse modification” of critical habitat so long as the modification does not appreciably diminish the habitat’s overall value. 50 C.F.R. § 402.02.

Thus, the governing definition of “destruction or adverse modification” is now the 2018 version. That reinstated definition removes the words “as a whole” and restores the second sentence clarifying that such alterations may include those that alter physical or biological features essential to conservation or preclude or significantly delay development of those features.

This is one of the clearer substantive changes from the court’s ruling and may affect how critical habitat impacts are framed in consultation documents going forward.

     4. The Service’s duty to request reinitiation is back in the regulation

The 2024 rulemaking removed references to the Services from the list of parties required to reinitiate consultation when (1) the level of “take” of a listed species exceeded what was projected, (2) new information revealed effects not previously considered, (3) changes to the action caused effects not previously considered, or (4) newly listed species might be affected by the action. 50 C.F.R. § 402.16(a) (2023).

The court found the rationale provided by the Services was insufficient to support a change from 25 years of practice whereby the Services imposed such a requirement on themselves.

Therefore, the court’s order reinstated the wording in 50 C.F.R. § 402.16(a) providing that reinitiation is required and shall be requested by the federal agency “or by the Service” under the circumstances provided in 402.16(a)(1)-(4).

Next Steps

Following the court’s decision, the Service temporarily paused many ESA Section 7 consultations to assess the ruling’s implications. In June, however, FWS indicated that it had resumed processing consultations under the reinstated regulatory provisions discussed above. The Service has appealed the decision to the Ninth Circuit. For now, the principal practical consequences appear to be:

• FWS has resumed processing consultations.
• Consultation documents are using the reinstated pre-2019 language for the four vacated Section 7 provisions.
• The 2018 definition of “effects of the action” again applies, including the concept of indirect effects tied to reasonable certainty.
• The standalone definition of “environmental baseline” adopted after 2019 remains in effect.
• The 2019 mitigation language eliminating any additional showing of binding plans is no longer operative.
• The “as a whole” limitation in the adverse-modification definition is no longer operative.
• The regulations again provide that reinitiation may be requested by either the federal agency or the Service.

Although the decision results in some substantive changes, it has not fundamentally disrupted the consultation process. FWS appears to interpret the ruling as requiring the use of older regulatory text in certain areas but not as a basis for halting consultations or abandoning familiar analytical concepts that remain reflected in the reinstated rules.

At the same time, the Service appears mindful that the district court’s reasoning may create litigation risk on certain issues, particularly the application of “reasonable certainty.” As a result, regulated parties may see more cautious or qualified effects analyses in new consultation documents while the appeal remains pending before the Ninth Circuit.

Entities currently engaged in consultation should expect general continuity, while remaining alert to subtle shifts in how FWS explains “reasonable certainty,” evaluates mitigation commitments, and analyzes effects on critical habitat.