Undermining the Endangered Species Act
We have just been treated to another example of what happens when conservation voters fail to go to the polls or, worse, when they vote for candidates who are antithetical to sound conservation values. On August 12, 2019, the Trump Administration announced its latest effort to modify the Endangered Species Act (ESA), not in the interest of the imperiled species the Act was designed to protect, but to satisfy the oil, cattle and mining industries who contribute so heavily to the Republican leviathan.
The ESA has been an enormously successful program to save endangered species and is the model for the rest of the world. Among its successes are the restoration of the California condor, the American alligator, the bald eagle and the gray wolf. Nevertheless, the Trump Administration is convinced the ESA is antiquated and needs to be brought “into the 21st Century.” Secretary of Commerce Wilbur Ross, that paragon of official candor whose reason for adding a citizenship question to the 2020 census was found to be a lie, said:
The revisions finalized with this rulemaking fit squarely with the president’s mandate of easing the regulatory burden on the American public, without sacrificing our species’ protection and recovery goals.
The announcement was accompanied by supportive statements from 15 Republican lawmakers, and officials from the National Association of Homebuilders, the National Cattlemen’s Beef Association, and the Western Energy Alliance. The strong opposition of environmental groups wasn’t mentioned.
The ESA itself has remained untouched. Several attempts to amend the statute have failed, even though Republicans have controlled both houses of Congress. The Trump Administration has simply modified the regulations that control how the Interior and Commerce Departments will interpret and apply the ESA. A regulatory change of this type is easier to achieve — but also easier for the next administration to reverse. And no regulatory interpretation can contradict the actual statutory language.
What exactly are these regulatory modifications and what will they mean? The answers depend on an understanding of the way the ESA works. It creates a two-tiered approach to protecting plants and animals at risk. Species may be listed as either endangered or threatened. “Endangered” means a species is in danger of extinction throughout all or a significant portion of its range. “Threatened” means a species is likely to become endangered “within the foreseeable future.”
Economic Data on Industry Impact
The first Trump modification is to what factors may be considered when listing and delisting a species. The ESA says that such determinations must be made “solely on the basis of the best scientific and commercial data available” on the question of whether the species is in danger of extinction. The current regulation mirrors this language but adds the phrase “without reference to possible economic or other impacts of such determination.” The Trump modification eliminates this additional phrase.
This is a clear invitation to industry to bombard the Interior Department with data on the possible harm to the affected industries, which will certainly be exaggerated, when a listing or delisting issue is considered. But recall the statute says that listing and delisting decisions must be made solely on the basis of the best scientific and commercial data available concerning the extinction question. It does not include the economic impact on industry. Yet what purpose could collecting information on industry impact serve but to influence the ultimate decision? One commentator has likened this to considering cost before treating a patient who is having a heart attack. An obvious legal challenge is set up here because the modified regulation seems to contradict the statute.
Shrinking Critical Habitat
When a species is listed as endangered or threatened, a critical habitat must also be specified. This is the geographical area occupied by the species at the time of listing plus any additional area essential for the conservation of the species. The designation of critical habitat only affects federal agency actions or federally funded or permitted activities. Federal agencies are required to avoid destruction or adverse modification of critical habitat areas. Since the federal government owns enormous swaths of land in the West, a critical habitat designation could restrict the extent of federal land open for oil and gas drilling and mining.
Unlike on the question of potential extinction, the Interior Department must take into consideration the economic impact of a critical habitat decision. But this is not enough for the Trump Administration. The major change to this portion of the regulation relates to areas not occupied by the species at the time of listing, but that are deemed essential for the preservation of the species. Now there will be a presumption that an unoccupied area is inessential unless there is a showing that without the unoccupied area the critical habitat would be inadequate. Moreover the Secretary will now be required to determine to a reasonable certainty that the area will contribute to the conservation of the species. The result of all this is that critical habitats will be smaller in the future.
Elimination of Climate Change When Determining Foreseeable Future
A species can be listed as threatened when it is likely to become an endangered species in the foreseeable future. Now the term “foreseeable future” will extend only so far into the future as the Secretary can reasonably determine that both the future threats and the species’ responses to those threats are likely. Under this new rule it would have been nearly impossible to designate the polar bear as threatened in 2010 because of the projected loss of sea ice. Officials then relied on climate models to predict the effect of warming on bear habitat 80 years into the future.
Writing in The New York Times, ecologist Carl Safina said
It used to be that animals did not need us. Now they do. Unless we value their existence, the modern tide will engulf and obliterate them. Their survival – like our great-grandchildren’s – is a moral matter. No religion has ever preached that our role on earth is to destroy, or leave less for those who’ll come after us. No wisdom teaches that it’s OK for a generation to drive the world to ruin. We are taught that we must safely pilot the ark.
This reference to the ark caught my attention. It is an apt metaphor, even if one is not inclined toward the scriptural view of the world. Noah carefully put all the animals on Earth into the ark, two by two, in order to preserve them from the deluge. We function as the modern day Noah. Except our current leadership in Washington is at the gangplank shouting “Hey! You two. Get out of line.”
