Texas threatens to sue Biden over 'unlawful, top-down' eco rules threatening farmers, energy producers

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Texas became the latest state Monday threatening to sue the Biden administration over a conservation rule that could harm landowners, farmers and energy producers across five states.

Texas Attorney General Ken Paxton's office filed a notice of intent with the Department of the Interior (DOI) and Fish and Wildlife Service (FWS) over a recent regulation protecting the Lesser Prairie-Chicken, a species the rule lists as threatened in some parts of Texas and endangered in other regions in the state. The attorney general alleged that the regulation violates federal law, fails to consider the state's conservation measures and would prove to be onerous for state property owners.

"I will not tolerate the Biden Administration’s efforts to run roughshod over the property rights of Texans and to stop our conservation efforts aimed at protecting Texas wildlife," Paxton said in a statement.

"This rule was a targeted attempt to implement an unlawful, top-down federal approach aimed at advancing a radical environmentalist agenda, which would crush the type of economic development that aids in providing funds for conservation," he continued. "This isn’t going to fly in Texas."

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Texas Attorney General Ken Paxton speaks outside the Supreme Court on Nov. 1, 2021. (Drew Angerer/Getty Images)

According to a release from Paxton's office, the Endangered Species Act requires the FWS to take a series of steps, including conducting an impact study and considering a wide range of variables, before classifying a species as threatened or endangered. Such federal requirements were never taken before listing the Lesser Prairie-Chicken, according to Paxton.

The rule also threatens "considerable conservation efforts" that stakeholders, led by Texas, private landowners and private groups, have already put in place to protect the chicken species.

"Combining this disregard for federal law, the overly vague nature of the rule, and the failure to abide by the legally-required notice of proposed rulemaking, the new rule constitutes yet another example of the Biden Administration’s willingness to prioritize executive overreach over state-directed management and conservation of wildlife and natural resources," Paxton's office stated.

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Last week, Kansas Attorney General Kris Kobach similarly announced that he would sue the Biden administration over the rule, saying it was illegal and would have a "devastating impact on Kansas ranchers, Kansas oil producers, and Kansas wind farms."

In November, the FWS, a DOI subagency tasked with managing the nation's wildlife populations and habitats, announced that it would list the Lesser Prairie-Chicken after a "rigorous review of the best available scientific and commercial information." 

"The lesser prairie-chicken’s decline is a sign our native grasslands and prairies are in peril. These habitats support a diversity of wildlife and are valued for water quality, climate resilience, grazing, hunting and recreation," FWS Southwest Regional Director Amy Lueders said at the time.

A male lesser prairie chicken displays in Edwards County, Kansas on April 18, 2014. (Michael Pearce/Wichita Eagle/MCT via Getty Images)

The listing sparked concerns among lawmakers, farmers and energy developers that the listing — which effectively locks up millions of acres across five states to protect the species — could negatively impact business. The Texas-based Permian Basin Petroleum Association previously won a lawsuit against the FWS during the Obama administration arguing that a rule protecting the chicken didn't properly factor in local conservation efforts.

Tens of millions of dollars have been spent in recent years to protect the species, the group's president said at the time.

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"The Biden Administration has chosen to continue their assault on Texas energy and agriculture producers by classifying the lesser prairie-chicken as an endangered species. This decision will wreak havoc on our local and state economies and make it even harder to produce oil & gas in the midst of an energy and economic crisis," said Rep. August Pfluger, R-Texas, a member of the House Energy and Commerce Committee.

"President Biden needs to get out of the business of over-regulating and focus on unleashing American energy dominance," he added. "The federal government must do so in a balanced manner through ongoing local and state conservation efforts. We can protect important species without devastating our local and rural communities."

Rep. August Pfluger, R-Texas, accused President Biden of "over-regulating" in response to the chicken species designation. (AP Photo/Patrick Semansky)

In response to pressure from industry groups, state officials and lawmakers like Pfluger, the FWS delayed implementation of the rule from late January to March 27, 2023. The agency explained the delay was to "avoid confusion and disruption for landowners, federal partners and industry."

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"The U.S. Fish and Wildlife Service has delayed the rule to list the lesser prairie-chicken as an endangered species, giving our farmers more time to prepare and be recognized for their conservation efforts," Rep. Ronny Jackson, R-Texas, a member of the House Agriculture Committee, said on Jan. 26. 

"If this rule is passed, the Texas agricultural community would be devastated, hurting an industry that has already been scrutinized by Biden's radical green agenda. This victory is a direct result of relentless efforts from Republicans to defend the livelihoods of our farmers. We will continue to stand strong, fighting first for the well-being of our country against a power-hungry regime."

The FWS didn't immediately respond to a request for comment.