Endangered Species Act

Our team of experienced environmental lawyers and litigators, which includes nationally recognized leaders for wildlife law, understands that commercial success and wildlife conservation can go hand in hand.

Hunton Andrews Kurth LLP helps corporations, landowners, developers, investors, industry groups, and coalitions address wildlife law, including regulatory developments, project permitting, consultation, incidental take approval, habitat planning, and litigation. Our Endangered Species Act (ESA) lawyers are well-versed in major regulatory developments, and we help our clients understand administrative requirements and conservation opportunities to plan and position for the future.

We have represented clients in permitting, regulatory, and litigation matters involving a wide range of wildlife laws, settings, and species. Our experience with species includes polar bears, Florida panthers, manatees, whales, whooping cranes, prairie chickens, wolverines, mussels, sturgeon, bats, snakes, and more (including invasive species), in habitats ranging from the shores of New England and wetlands of Florida, to the Great Plains and across the hill country of Texas, to California and Hawaii. We work alongside and before federal and state agencies, including the US Fish & Wildlife Service (FWS), National Marine Fisheries Service (NMFS), US Army Corps of Engineers, US Department of Justice, and more.

Our knowledge of the ESA is reinforced by our understanding of and experience with other relevant statutes and permitting programs through which protected species arise, including the following:

• The National Environmental Policy Act (NEPA)
• The Clean Water Act (CWA), including the section 404 permitting program
• The Marine Mammal Protection Act (MMPA)
• The Magnuson-Stevens Fishery Conservation and Management Act (MSA)
• The Migratory Bird Treaty Act (MBTA)
• The Bald and Golden Eagle Protection Act (BGEPA)
• The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
• The Lacey Act

Our team regularly assists clients, striving to ensure compliance with the ESA and its implementing regulations, navigating the ESA section 7 consultation process, and obtaining incidental take coverage, where necessary. Drawing on our knowledge, we counsel clients to plan and design critical infrastructure and other projects, coordinate with federal and state agencies on permitting and take coverage, and respond to proposed regulatory changes in a manner that balances business goals with protection of species and habitat. We have helped clients with large-scale and project-specific habitat conservation plans and related NEPA and other environmental reviews.

We represent coalitions on major ESA regulatory reform, including listing and critical habitat rules and amendments to the section 7 consultation regulations, to draft comments and identify creative solutions and clarifications. Our ESA team understands the science that underlies wildlife protection and management and key policy issues, including the intersection of the ESA and climate-change policy. We frequently work with clients, biologists, and consultants to conduct in-depth analyses of the methodologies and data used by regulators in proposed listing decisions and critical habitat designations and recommend targeted comments to help ensure final rules rely on accurate and appropriate data.

Our attorneys have litigation experience, including defending against challenges to permitting actions and alleged violations of section 7 consultation obligations and take prohibitions. For example, we represented a broad industry coalition in challenging 2015 ESA regulations, which led to important regulatory changes. We have filed Supreme Court amici briefs in major ESA cases, including Weyerhaeuser v. FWS. And we litigated a claim alleging an international container shipping company caused illegal “take” of whales, resulting in dismissal of all claims.

We also have a history of defending municipal and corporate clients and coalitions in enforcement actions initiated by environmental groups, including some in which we obtained early dismissals of ESA citizen suits alleging take violations in federal court.

Finally, we pride ourselves on our ability to work with broad stakeholder coalitions, including wildlife and other interest groups, to help our clients develop business solutions that are good for them, the economy, and wildlife.