Deep Staffing Cuts Spark Concerns Over Endangered Species Delays

The Trump administration’s cuts to the US Fish and Wildlife Service threaten to increase delays and litigation costs for an agency that already was struggling to meet its deadlines under the Endangered Species Act.

Environmental groups estimate some 420 positions were slashed from the Interior Department subagency in March amid the Department of Government Efficiency staff reduction efforts.

Conservationists say dwindling the office to a skeleton crew is almost certain to increase the FWS’s backlog and hamstring the agency’s ability to issue any endangered species findings within the required time frame.

And those delays impact a host of species that could very well go extinct in the meantime.

The volume of staffing cuts is compounded by the types of jobs the administration chose to eliminate, a move conservationists say scales back agency expertise.

“The firings from what we understand were disproportionately biologist-type folks: they’re mammalogists, botanists, and they’re ornithologists,” said Brian Segee, a legal director for the Center for Biological Diversity. “It’s all going to exacerbate an already very bad situation in terms of the extinction crisis.”

But it’s not just conservationists feeling the effects—developers also need the agency’s go-ahead before they can build in areas that might cut through potential critical habitats, as well as consultations on the likelihood that projects will jeopardize the continued existence of a species as defined by the law.

Robert Fischman, an environmental law professor at Indiana University Bloomington’s Maurer School of Law, said the courts have little power to compel the FWS to meet deadlines or speed workflow without the funding to make that possible.

“The problem historically has been congressional appropriation, so the courts don’t have a lot of leverage,” he said.

Fischman said he has a “bleak view” on the state of the petition backlog, and many species won’t receive protections until after their population numbers decline significantly.

“The federal government is going to spend more time litigating and settling cases in court than it will making more determinations,” he said.

Compound Litigation

Lawsuits over the FWS missing ESA deadlines are far from new: Environmental groups have sued the agency for petition response delays since the act was signed into law in 1973.

The ESA requires the agency to respond to a petition within 90 days with a finding on whether that petition for an endangered species finding provides enough information to make a determination. If it does, the FWS must conduct a year-long review to decide if endangered-status protections are warranted.

But the roughly 16-month process rarely takes place within that time frame, and species can be stuck in administrative limbo for years, litigators say.

Though the FWS eliminated positions responsible for conducting scientific reviews of petitions to list species as endangered, the ESA’s deadlines for applications for permits allowing unintentional harm to protected species and requests for critical habitat designations that protect geographic zones from development remain unmovable.

The extent of the staffing cuts remains unclear, as the Center for Biological Diversity’s Freedom of Information Act suit seeking that information remains pending.

FWS “remains dedicated to conserving America’s wildlife and natural habitats while promoting access, use, and enjoyment of public lands by the American people, all while upholding federal responsibilities with efficiency and accountability,” an agency spokesperson said in a statement.

The mounting backlogs threaten to spur a host of new petition delay lawsuits at the same time that the FWS is bound to a set schedule to review 76 species under a settlement with the Center for Biological Diversity over prior allegations of systemic failures in the agency’s review process.

The settlement also bars the center from bringing more than two ESA petition delay suits per year over that six-year period, but Segee said the FWS already is significantly behind schedule and soon could be in violation of the court-approved timeline.

In the eight months since the Trump administration overhaul, no new animals or plants have been added to the endangered species list—the longest period without an update in nearly 20 years.

Developer Impacts

The ESA doesn’t give the FWS a defense for missing statutory deadlines based on workload.

That means conservation groups can sue to move a particular species up the review priority list in order to stop a specific development, said Sandi Snodgrass, a partner in Holland & Hart LLP’s environmental practice.

“It doesn’t seem like good policy to allow third-party interest groups to be driving listing priority decisions,” she said.

The ESA would benefit from an amendment that allows the FWS to prioritize species it deems necessary “and manage its workload accordingly, rather than having to constantly defend lawsuits,” Snodgrass said.

That’s not to say developers won’t also turn to the courts to challenge FWS delays.

Snodgrass says her clients, who work on large infrastructure projects like transmission lines, pipelines, and oil and gas facilities, aren’t likely to delay developments just because a conservation group files an ESA petition.

But they might file their own lawsuits over permit and consultation delays that prevent them from legally starting projects in certain areas, she said.

Environmentalists say the issue really lies with appropriations, not the law itself.

In a declaration submitted as part of the Center for Biological Diversity’s ESA delay settlement, former FWS Deputy Director Gary Frazer said Congress has kept funding for the agency’s findings, listing determinations, and critical habitat studies “essentially flat” for over a decade.

Segee estimated the latest appropriations bill, which would reduce the overall FWS budget by over $18.6 million, will result in an additional 20% of agency staff being cut.

“It is the administration of law that is the fundamental piece that has been undermined,” he said. “The ESA is essentially fine as it is; what needs to change is congressional funding and the agency’s expeditious implementation of its duties.”