Locke Lord QuickStudy: Rusty Patched Bumble Bee Listing Begins to Sting

April 21, 2017

On April 17, 2017, a federal judge in the Northern District of Illinois granted a temporary restraining order halting construction of a six-mile stretch of highway in suburban Chicago in response to allegations by project opponents that the project could affect the rusty patched bumble bee, which has historically been found along the planned project route and which was listed as endangered under the Endangered Species Act (“ESA”) effective March 21, 2017. (Petzel v. Kane County Department of Transportation, et al., case number 1:16-cv-05435, N.D.Ill.) If there was any question whether that listing would materially impact development of projects within the species’ range, this injunction provides a clear indication that that may indeed be the case.

In this case, a not-for-profit group called Stop Longmeadow filed an emergency motion to intervene in an already-pending suit seeking to stop construction of the highway, as well as a motion for a temporary restraining order to halt the construction. The judge granted both of Stop Longmeadow’s motions, noting that the concerns it had raised about the project’s potential harm to the rusty patched bumble bee were sufficient to temporarily stop the project. Though the temporary injunction is only until April 28, it provides Stop Longmeadow with the opportunity to submit additional evidence that the project should be delayed further or enjoined permanently on the basis of impacts to the bee.

Although this case relates to a highway project, the same risk is present for transmission lines, pipelines, and any form of development that involves clearing of vegetation within the range of the bee. As we noted in our previous QuickStudy on the rusty patched bumble bee’s listing and its implications, even though development and habitat loss have not been identified as the principal reason for the declining status of the bee, many activities associated with the development, operation and maintenance of energy, industrial and real estate projects may have the potential to cause a take in violation of the ESA if those activities take place in or near occupied rusty patched bumble bee habitat. The citizen suit provisions of the ESA provide project opponents and environmental organizations with a tool to delay or derail such projects. This case provides a stark reminder of how potent that tool can be. Developers and operators of projects within the rusty patched bumble bee’s range should be sure to account for the effects and requirements of this recent listing in their siting, construction and operational plans and schedules. Companies planning operations in or near rusty patched bumble bee habitat will need to develop appropriate strategies to ensure compliance with the ESA. Locke Lord’s energy and environmental attorneys have the relevant expertise to provide strategic advice and insight on these issues. For more information on the matters discussed in this Locke Lord QuickStudy please contact the authors.