Many environmental statutes have narrowed as streamlined permitting and efficient project development are prioritized. Rather than shrinking alongside the other major environmental statutes, the jurisdictional reach of the Endangered Species Act (ESA) has continued to expand as more species are listed and more critical habitats are designated each year.
This expansion poses complications for project developers, and is particularly important as demand for energy reaches unprecedented levels, outpacing infrastructure. Project developers should understand the complexity of ESA jurisdiction and identify opportunities to build regulatory efficiency.
COMMENTARY
Environmental laws and regulations have undergone a transformative narrowing. The National Environmental Policy Act (NEPA) is a prime example. Historically, NEPA’s sparse statutory language provided little guidance on implementation, and the regulatory framework was based on implementing regulations promulgated by the White House Council on Environmental Quality (CEQ) and judicial precedent.
These regulations have since been rescinded, and agencies are now responsible for complying with NEPA under their individual regulations. Consistent with executive, judicial, and legislative directives, agencies are amending their NEPA regulations to incorporate limiting standards, such as hard page and time limits for environmental reviews. Application of NEPA is now subject to the Supreme Court’s decision in Seven County Infrastructure Coalition v. Eagle County, Colorado, which reinforced NEPA as a procedural statute and clarified that NEPA reviews are based on agencies’ own actions and effects caused by those actions.
Similarly, the reach of the Clean Water Act (CWA)—once expansively viewed—has been restrained by the Supreme Court’s decision in Sackett v. Environmental Protection Agency to include only those waters “described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ ” and wetlands adjacent thereto. Regulatory frameworks also have narrowed under other environmental statutes including the Clean Air Act and the Safe Drinking Water Standards Act.
Energy demand is exponentially increasing; one study projects that U.S. energy demand will rise 25% by 2030, and 78% by 2050. There are many contributing factors to this increase, including the artificial intelligence (AI) boom and corresponding build-out of data centers. AI and data centers are uniquely positioned to impact energy demand because AI requires several times more energy than traditional technologies, and data centers often run continuously and require large amounts of energy to cool their systems.
The power grid is further strained for several reasons. For example, large amounts of coal- and gas-fired power stations are retiring or slated for retirement, there is insufficient transmission to support energy needs, projects are delayed or blocked from connecting to the grid due to the interconnection queue backlog, and renewable energy projects face opposition within the administration. And, of course, there are permitting delays.
The current administration has decelerated the trend toward new species listings and critical habitat designations, and on July 14, 2026, the U.S. Fish and Wildlife Service and National Marine Fisheries Service published a final rule in the Federal Register officially rescinding the long-standing regulatory definition of “harm” under the ESA (which included significant habitat modification or degradation that actually kills or injures wildlife as a form of take). Yet, ESA jurisdiction remains 2,000% greater than when the ESA was first enacted, and actions that actually kill or injure wildlife remain prohibited. The upshot is that the ESA has been steadily gaining in relative importance, especially in the context of unprecedented energy demand.
When the ESA was first enacted in 1973, it included 78 species that were listed under the Act’s 1967 statutory predecessors. This list has grown to 1,680 listed U.S. species today. Any given project site may be within the range of multiple listed species or areas of designated critical habitat (or both), each potentially requiring unique measures to avoid take or receive take authorization and to successfully complete consultation.
Energy project development requires a series of environmental approvals pursuant to NEPA, CWA, and ESA, among others. While permitting processes under NEPA and CWA may be easier than before, the same cannot be said for the ESA. Project opponents often see the ESA as a vehicle for challenging major projects that is more likely to be successful than challenges under NEPA or the CWA.
As an example, suppose a company is developing a data center facility in Florida. It is likely that less project land will be subject to federal CWA jurisdiction under Sackett, simplifying the permitting process. The NEPA review may be more focused and efficient under Seven County and its progeny, which will further accelerate the project.
However, in contrast, it is likely that more species at or near the project site are protected under the ESA than 30 years ago, triggering ESA consultation or the need for incidental take coverage. Not adequately planning for ESA compliance can result in lengthy project delay or severe civil and criminal penalties in federal court brought directly against private projects.
Among the various environmental compliance requirements that govern projects, a strong and proactive ESA compliance strategy has greater relative importance than ever. Faced with rapidly growing energy and data center demands, project developers should address ESA compliance early, often, and thoroughly in their project planning.
—Andrew Turner (aturner@hunton.com) is a partner, and Sadie Mapstone (smapstone@hunton.com) is an associate, with Hunton (hunton.com).
