by: Michelle C. Pardo
On July 25, 2018, environmental activist group, the Center for Biological Diversity, sent a 60-day notice letter to Mazda Toyota Manufacturing (and other Toyota entities), the City of Huntsville, Alabama, and the Secretary of the Interior and the US Fish and Wildlife Service providing notice of its intent to sue for alleged violations of the Endangered Species Act (ESA). The Center for Biological Diversity alleges that the construction and operation of a Toyota-Mazda automobile plant (“Auto Plant”) creates an illegal “take” of one of the two remaining populations of the endangered Spring Pygmy Sunfish (described as “an irreplaceable symbol of northern Alabama’s natural heritage”). The fish is alleged to live in the Beaverdam Spring and Creek Complex, which is adjacent to the Auto Plant site.
In 2018, Toyota and its joint venture partner Mazda announced that they would build a $1.6 billion automobile assembly plant on the “Hunstville Mega Site”. It has been reported that the Auto Plant would employ approximately 4,000 employees and have production capabilities of about 300,000 vehicles annually.
The Center for Biological Diversity claims that the construction of the Auto Plant will have a negative impact on the water quality and quantity of the Spring Pygmy Sunfish’s habitat and, among other effects, fertilizers and chemicals from related landscaping will contribute to pollution of the species’ habitat. The 60-day notice letter was sent despite mitigation measures advanced by the venture, and following a construction hiatus while the company and environmental experts had reviewed protections and determined that the project plans had robust and protective measures in place to preserve the Spring Pygmy Sunfish’s habitat.
Mazda Toyota stated that it is: “committed to preserving and sustaining the habitat of the pygmy sunfish and working with all interested stakeholders . . . to develop and execute a conservation strategy that achieves this.”
“Take” under the ESA means “to harass, harm, pursue, hunt, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct.” 16 U.S.C. § 1531(a)(1)(B). “Harm” means “an act which actually kills or injures wildlife”, 50 C.F.R. § 17.3, and “harass” means “an intentional or negligent omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.” Id. The environmental activist group alleges that the construction and operation of the Auto Plant will result in killing, wounding, harassing and/or harming the sunfish population.
The Center for Biological Diversity’s notice letter stated that Mazda Toyota and the City of Huntsville have failed to prepare a habitat conservation plan or apply for an incidental take permit. If granted the permit would have protected the applicants against liability as long as they complied with the habitat minimization and mitigation measures set forth in a Habitat Conservation Plan. Habitat Conservation Plans (HCPs) describe anticipated effects of the proposed taking, how the effects will be minimized or mitigated, and how the HCP is to be funded.
Environmental groups like The Center For Biological Diversity often push for project developers to apply for an incidental take permit so that they can participate in the 30-day public comment period required for incidental take permits and corresponding National Environmental Policy Act analysis (NEPA) and oppose the issuance of the permit. If a permit is issued over objection by environmental groups or others, they often will initiate suit, pursuant to the citizen suit provision of the Endangered Species Act, alleging that the agency’s grant of the permit was arbitrary and capricious and that it should be enjoined.
The threat of this ESA lawsuit comes during a time when agendas focused on economic and employment growth and environmental protections appear to be clashing and on the heels of a recent announcement of proposed rulemakings that would revise ESA regulations. https://blogs.duanemorris.com/animallawdevelopments/2018/07/21/wildlife-agencies-announce-proposed-endangered-species-act-regulations.