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A judge’s ruling gives environmentalists new hope for the future of a bat quickly disappearing from Pennsylvania.

In 2015, the Northern Long-eared bat was listed by the U.S. Fish and Wildlife Service as “threatened” under the Endangered Species Act. A coalition of environmental groups challenged that listing. They argued the bat needed more protections, because mountaintop removal mining and other human activities remove forest habitat the bats rely on, compounding population declines from the fatal bat disease, white nose syndrome. The Center for Biological Diversity, Defenders of Wildlife, Sierra Club, Coal River Mountain Watch and Ohio Valley Environmental Coalition said the bat should get the more protective “endangered” species listing. In late January, a judge agreed, ruling that the threatened listing wasn’t supported by the scientific data.

The Allegheny Front’s Kara Holsopple spoke with Ryan Shannon, an attorney at the Center for Biological Diversity about the court’s ruling.

LISTEN to their conversation

Kara Holsopple: Why was the Northern Long-eared bat designated as threatened instead of endangered in the first place? 

Well, looking back at 2015 when they issued the threatened listing decision, after originally proposing to list it as endangered, I think it’s pretty clear why it was listed as threatened. 

The Northern Long-eared bat has an incredibly extensive range, stretching along the East Coast and into the Midwest, but they’re far scarcer outside of that main core range. Many folks were worried about what an endangered finding would mean for activities like coal mining, oil and gas extraction, timber sales and the like, so there was a huge political campaign that was mobilized to oppose the listing. They put an incredible amount of political pressure on the service[U.S. Fish and Wildlife Service], and I think ultimately that’s why we saw the threatened listing rather than the endangered listing. It wasn’t a decision based on science, but based on politics. 

KH: What reason did the judge give for this decision?

There are two primary reasons why the judge overturned the threatened designation. The first was because one of the ways the service tried to justify their threatened listing was by saying that within 40 percent of the total geographic range, the bat was still doing OK. But this was a bit of smoke and mirrors, because in its core range, the area where it was most abundant on the East Coast and in the Midwest, the species had already been absolutely devastated by white-nose syndrome, with population declines at the time of listing of over 90 percent. Instead of looking at that 90 percent number in the core range, they decided to look at the geographic range. That 40 percent number just was not reflective of the actual status of the species. 

“Once you accept the reality that the bat population is being decimated by white-nose syndrome, we’re in a situation where every single remaining bat counts.”

The second reason was that the judge said that [USFWS] failed to take into account the cumulative impacts of other threats beyond white-nose syndrome. In the case of a species like the bat, where it has been devastated by something like white-nose syndrome or another invasive species or some new disease, it may be the case that before that disease was on the scene, some of the other threats to the species may have been insignificant in the species as a whole could have withstood them.

However, once you accept the reality that the bat population is being decimated by white-nose syndrome, we’re in a situation where every single remaining bat counts. Those threats that may have once been insignificant are now cumulatively significant. Therefore, the service has to take them into account when making their listing determination.

KH: And one of those considerations is habitat loss?

Yes, that was the primary consideration. When a species is listed as threatened, as opposed to endangered, it doesn’t automatically receive all of the protections of the Endangered Species Act — the primary one being the protection from “take,” which is I think what most people think of when they think of the Endangered Species Act protections. 

“The service issued an incredibly broad, basically blanket exclusion for all activities resulting in habitat loss, whether that be coal mining, oil and gas development or timber sales.”

It’s basically the prohibition on harming, killing, or harassing an endangered or threatened species. The threatened species don’t automatically receive those protections, and the service has the discretion to issue what’s called a 4(d) rule. A 4(d) rule can exempt certain activities from the prohibition on take, and just say categorically, even if you kill a Northern Long-eared bat doing this activity, that’s not prohibited by the act. 

With the 4(d) rule here, the service issued an incredibly broad, basically blanket exclusion for all activities resulting in habitat loss, whether that be coal mining, oil and gas development or timber sales. Basically all of them were exempted under the 4(d) rule. 

Could the Endangered Species Act Go Extinct?

KH: Will this ruling by the judge mean that the bat will automatically be listed as endangered? 

I think that that’s the writing on the wall, but as a technical legal matter, no. What the judge said is that they have to go back and revisit their threatened listing, and take into account both the devastation that white-nose syndrome has done to its core range and its cumulative impacts. 

Hypothetically, they could re-issue another threatened finding. However, I think it’s clear both from the science, and from the judge’s ruling, that they should issue an endangerment finding barring some miracle like a known effective cure for white-nose syndrome. I mean, obviously that would be a complete game changer, and we’d all be thrilled to see it.

“What the judge said is that they have to…revisit their threatened listing, and take into account both the devastation that white-nose syndrome has done to its core range and its cumulative impacts.”

A northern myotis (Myotis septentrionalis) with suspected White-Nose Syndrome at a Monroe County, Illinois hibernaculum. Note fungal growth on face and forearm. 
Photo credit: University of Illinois/Steve Taylor

KH: What could this ruling mean for the bat’s numbers? Is it coming soon enough? 

It’s not coming soon enough. We petitioned for this species back in 2011. We think that it deserved the full protections of the act then. It took the service four years to finally issue the threatened ruling, and we didn’t think that was protective enough. 

Its situation hasn’t gotten any better since 2015. At this point, white-nose syndrome has continued to spread throughout its range, wreaking the same kind of devastation in the western portion of its range that we saw in the eastern and midwestern portions. So this endangerment finding can’t come fast enough. This bat is in desperate need of the protections of the act.

KH: The original threatened designation was made during the Obama administration. Is there any worry that the Trump administration won’t protect the Northern Long-eared bat under the Endangered Species Act when there have been some rollbacks of the act?

Yeah, it’s always a concern. This administration has listed fewer species under the Endangered Species Act than any other administration that’s come before it, and so it’s always a concern that they are going to try to find any way to not provide this species with the protections that it desperately needs. 

But I think that the fact that this was issued during the Obama administration just goes to show that we’ve constantly had to fight for necessary protections for endangered and threatened species, and that the Fish and Wildlife Service historically has been dramatically underfunded by both Democratic and Republican administrations. That just makes its job of protecting endangered species that much harder to do, regardless of the administration. 

Obviously, this administration is openly hostile to the Endangered Species Act, and that’s most evidenced by the regulatory rollbacks that they issued in August. Part of those rollbacks is a new definition of “foreseeable future,” where they look to see whether or not the threat to this species is likely, and whether the species response to that threat is likely. 

In large part, that’s a way of discounting the impacts of climate change. I’m not sure if that will play a role here. Obviously, there is no doubt and no dispute that white-nose syndrome has been completely devastating to this species, but these rollbacks are indicative of the Trump administration’s hostility to the Endangered Species Act.

EDITOR’S NOTE: A spokesperson from the U.S. Department of the Interior, which oversees the Fish and Wildlife Service, said: “The Department has received the court’s decision that the actions by President Obama’s administration were illegal, and the Department is in the process of reviewing it. The court did not vacate the listing determination for the northern long-eared bat, so the species remains protected under the Endangered Species Act.”

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