Trump Administration Revises Endangered Species Protections (3)

The Trump administration adopted rules Aug. 12 to peel back automatic protections for threatened species, part of a suite of changes that are some of the most fundamental amendments to the Endangered Species Act since 1973.

The announced revisions nix the U.S. Fish and Wildlife Service‘s long-standing “blanket rule,” which automatically gives threatened species the same protections as higher-priority endangered species, such as a ban on killing or harming them. They also allow the the Fish and Wildlife Service and the National Marine Fisheries Service to include economic costs in their listing decisions.

“The best way to uphold the Endangered Species Act is to do everything we can to ensure it remains effective in achieving its ultimate goal—recovery of our rarest species,” Interior Secretary David Bernhardt said in a statement Aug. 12.

“The Act’s effectiveness rests on clear, consistent and efficient implementation,” he said. “An effectively administered Act ensures more resources can go where they will do the most good: on-the-ground conservation.”

The changes come through three separate final rulemakings sent to the Federal Register on Aug. 12, according to Gary Frazer, assistant director for endangered species at Fish and Wildlife Service. The agency must now adopt a separate rule for every threatened species on a case-by-case basis, Interior said. The changes don’t apply to species that are already on the threatened list.

Industry attorneys said the move will give businesses more certainty. But conservation groups slammed the changes as violating the whole purpose of protecting vulnerable species, and several states are likely to sue.

States Promise Lawsuit

The states of California and Massachusetts plan to file a lawsuit against the federal government, claiming the changes illegal, Calif. Attorney General Xavier Becerra and Massachusetts Attorney General Maura Healey said on a call with reporters Aug. 12.

“We’re going to do everything we can to oppose these actions,” Healey said.

The states plan to claim in court that the changes are arbitrary and capricious; the Interior Department failed to review the environmental impacts of the changes and ignored public comments on them; and that the changes violate the text and purposes of the Endangered Species Act.

“They essentially seek to gut this law,” Healey said. “The new rules are misguided, they are dangerous and they are illegal.”

Healey said other states are likely to join California and Massachusetts in litigation against the changes, but she declined to specify which states.

Becerra said the lawsuit would come “as quickly as appropriate.”

Climate Change Tweaks

Other changes affect how Interior considers the future when making listing decisions and carving out a species’ critical habitat. At the center of the debate is what to do about climate change.

The Endangered Species Act defines a “threatened species” as one that is likely to become endangered in the “foreseeable future.” Interior says that phrase should only apply to conditions that are “probable” extinction threats.

“We will look out in the future only so far as we can reliably predict, and not speculate,” Frazer told reporters Aug. 12. Those changes must be “likely” and can’t be based on speculation, he said.

To conservationists, that change is aimed at snipping out any possible impacts of climate change, allowing Interior to limit protections for species affected by a changing climate, such as polar bears and seals.

But Frazer said possible threats to species or habitat “might be climate-induced changes to the physical environment.”

Economic Factors

The revisions would allow the inclusion of economic costs in listing decisions. Interior officials have long promised to continue basing their decisions on biological science and have said they only want to receive information about the costs of their decisions.

But conservationists say the call for more information means officials are likely to include such economic factors in their decisions. They say the listing process already gives the government plenty of chances to tell the public about economic impacts, and that the Endangered Species Act specifically forbids listing decisions from being guided by anything other than science.

Angela Levin, a partner at Troutman Sanders LLP, said some of her clients worry the change could lead to more scrutiny of listing decisions because of skepticism from conservation groups that economic factors drove the government not to list a species.

“That could have the unintended consequence of increasing delay and litigation risk,” Levin said.

Species Recovery?

Republican lawmakers with endangered species issues in their states and districts were quick to applaud the changes.

“Today’s actions will help achieve actual species recovery while providing much-needed clarity and stability to those who are too often held hostage by the ESA,” Sen. Kevin Cramer (R-N.D.) said in a statement.

And Rep. Rob Bishop (R-Utah) ranking member on the House Natural Resources Committee, told Bloomberg Environment in May that including economic analyses in listing decisions is something Republicans “have been talking about for a long time.”

But litigation from a broad coalition of environmental groups is now virtually assured.

Rep. Jared Huffman (D-Calif.), who chairs the House Natural Resources Subcommittee on Water, Oceans, and Wildlife, said in May that he expects litigation could be successful, “given the ham-handed way in which this administration has tended to do its rulemaking.” At the very least, a lawsuit could put the rule on hold long enough for a new administration to erase it, if Democrats win the presidential election in 2020, according to Huffman.

He also called the rule “the worst possible action at the worst possible time,” in light of a recent United Nations’ report that found some 1 million species face extinction.

Kristen Boyles, a staff attorney at Earthjustice, said the change creates large loopholes that violate the purpose of the Endangered Species Act, and Drew Caputo, Earthjustice’s vice president of litigation for lands, wildlife, and oceans called the move “a gift to industry” and “illegal.”

“We’ll see the Trump administration in court about it,” he said.

—With assistance from Tiffany Stecker.