When the U.S. Fish & Wildlife Service placed the rusty patched bumblebee on the endangered species list back on March 21, many observers wondered how this action could impact a wide variety of infrastructure development proposals. Unlike some of the recent controversial species management actions that implicated areas of the American west more accustomed to Endangered Species Act (ESA) issues, the bumblebee’s habitat stretches across over a dozen heavily populated eastern and midwestern states. Based on litigation challenging a highway project in Illinois, we may have our first answer.
A District Court judge in Illinois granted a temporary restraining order delaying construction of a proposed new 5.6-mile stretch of highway called the Longmeadow Parkway Fox River Bridge Corridor. The ruling was based, in large part, on a local environmental group’s allegation that the project’s NEPA review did not adequately take into account the presence of the bumblebee on property in the project area. Emergency relief was warranted to prevent harm to the species, the court ruled, finding that the traditional balance of harms weighed in favor of short-term relief over the planned beginning of construction.
Plaintiffs still face a number of substantial procedural hurdles (did they give the government adequate notice of their claims under the ESA, for example). As a result, the injunction may not persist long after an April 28 deadline for the plaintiffs to provide additional information to the court and argument on preliminary injunctive relief. But the very fact that a federal judge was persuaded that the protections afforded the bumblebee as a result of the ESA listing should delay project construction is noteworthy. Moreover, it is possible that the project proponent could be compelled to make additional engineering modifications and/or to take further mitigation measures to protect the bee. Any such concessions of course mean additional time and money.
Some of the project opponents’ comments as reported by local media demonstrate precisely the potential for confusion and uncertainty for development interests. One person suggested: “There are bumblebees pretty much all over the state of Illinois. I don’t know if it’s significant to this area. No one really does, because it has not been studied.” Another advocate added: “It’s a little keystone in the ecosystem, that if they go who knows what else is going?”
These fundamental questions, combined with an observed 95 percent decline in the species’ presence across the U.S. and Canada, led to the listing, despite a brief delay by the new administration in taking that final action. Native pollinators contribute to the growth of many important and popular crops, but have been adversely impacted by modern farming trends, urban sprawl, and possibly by the use of certain insecticides.
Whether construction of this one particular highway is further delayed or if the project is modified in some way to address potential impacts to the bumblebee, there is little doubt that developers working in states with remaining bumblebee populations and habitat must take these concerns into account. The practical effect of the bumblebee listing may also finally free up the potential for mitigation banks specializing in habitat in the species’ current range. While this market has been fairly robust in the wetlands/stream context, it has been slow to advance in the ESA context. Now that ESA obligations for the bumblebee may complicate infrastructure development in states like Pennsylvania, Maryland, Illinois, and Ohio, perhaps habitat conservation banking will be more readily accepted by the Fish & Wildlife Service.
Cases like those attacking the Longmeadow project are sure to provide more fuel to those seeking reform of the ESA, something gathering momentum on Capitol Hill. In the interim, however, the real “buzz” should be focused on research, compliance, and mitigation, so that other development projects can avoid the same litigation fate.