By Brandon Moseley

Alabama Attorney General Steve Marshall (R) announced Monday that he is leading a national coalition of 18 attorneys general (AGs) urging the Biden Administration not to reimpose critical habitat policies that they say are costly and unnecessary restrictions on private property rights.

The issue involves the Endangered Species Act and the federal government’s authority to designate land or water as a “critical habitat” for species the government considers endangered. Property that receives this designation is often subject to stringent restrictions that can greatly reduce its utility and value. After the Obama Administration argued that an area could be a “critical habitat” for a species even if the species could not survive there, Attorney General Marshall led a group of states opposing that approach, and the Supreme Court held that the Obama administration had overreached.

Marshall then headed a national coalition in support of Trump Administration reforms that protected species without crippling the rights of landowners. The Trump Administration also provided a definition of “habitat” for use in “critical habitat” designation and created a more predictable process for considering whether to exclude an area from a critical habitat designation. The Biden Administration is now considering abandoning those reforms. The attorneys general say that would pave the way for a return to Obama-era rules that stretched the definition of “critical habitat” to beyond any practicable application.

Under current rules, an area may be designated as a critical habitat only if it currently or periodically has the conditions and resources to support a species, and not just because such conditions could be developed in the future. The attorneys general argue that the current rules provide an important balance, providing analysis of the economic impact and whether excluding an area from critical habitat would result in the extinction of a species.

“I will not allow the Biden Administration’s misplaced priorities and overreach to destroy the vital progress we have made,” said Marshall. “If federal bureaucrats are allowed to designate land as critical habitat for species even though that species does not and cannot live there, then there is no limit to the areas they can claim. The results could be devastating for Alabama’s farmers, loggers, and miners as well as for landowners throughout our nation.”

Attorney General Marshall’s letter was joined by the attorneys general of Alaska, Arizona, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah, West Virginia and Wyoming. 

To read the letter:

Marshall was appointed AG by then Gov. Robert Bentley (R) in 2017. Marshall was elected in 2018 and is seeking a second term as Alabama’s Attorney General in the 2022 election.