Federal Judge Overturns Decision to Deny Northern Long-eared Bat Endangered Species Protections

January 28, 2020: A federal judge last Tuesday overturned a decision by the U.S. Fish and Wildlife Service to protect northern long-eared bats as “threatened” under the Endangered Species Act rather than as “endangered”—which would provide more critical protections. Once common in the northeastern and mid-Atlantic states and eastern Canada, the species has suffered up to 99% declines in this core range since 2006 due to the fungal disease known as “white-nose syndrome.” After proposing to list the species as "endangered" due to the massive decline, the Service reversed course and decided to list the bat only as “threatened.” It did so in response to massive political pressure induced by industry lobbyists so that it could impose a “4(d) rule” that would allow nearly all habitat-destroying activities to continue.

In 2015, the Sierra Club and its allies challenged the listing and 4(d) rule as arbitrary and capricious. The Club was represented by Center for Biological Diversity attorneys Tanya Sanerib and Ryan Shannon; ELP attorney Karimah Schoenhut also worked on this case for Defenders of Wildlife prior to joining the Club. In remanding the agency’s listing decision, the judge agreed with the Club and its allies that the Service failed to explain why the northern long-eared bat was not endangered throughout its range after suffering catastrophic declines in its core range, and facing imminent declines throughout. The judge also rejected a Service policy that allowed the agency to dodge the question of whether the species is endangered “in a significant portion of its range.” Given the near extirpation of the bat through its core range, the facts compel a conclusion that the species is endangered in a significant portion of its range. Briefing on the 4(d) rule has not yet occurred. For now, the “threatened” listing and 4(d) rule will stay in place while the agency goes back to the drawing board, but if the species is ultimately listed as "endangered," the 4(d) rule will not be allowed.