Interior Department Proposes a Vast Reworking of the Endangered Species Act
Posted July 19, 2018 6:52 p.m. EDT
The Interior Department on Thursday proposed the most sweeping set of changes in decades to the Endangered Species Act, the law that brought the bald eagle and the Yellowstone grizzly bear back from the edge of extinction but which Republicans say is cumbersome and restricts economic development.
Many of the proposed revisions have wide-reaching implications, including for how the federal government will protect species from climate change. For example, the agency has proposed a new definition of how it decides whether a plant or animal is in danger of extinction. Environmental activists quickly criticized the new definition as too narrow.
The agency also intends to make it more difficult to protect species like the Atlantic sturgeon that are considered “threatened,” which is the category one level beneath the most serious one, “endangered.” And it will eliminate long-standing language that bars considering economic factors when deciding whether to list a species.
David L. Bernhardt, the deputy secretary of the Interior Department, said that the 1973 law had not seen major updates in 30 years and described the proposed changes as streamlining and improving the regulatory process. He rejected a suggestion that the moves would help the oil and gas industries, though business leaders have long sought similar changes to the ones outlined Thursday.
“Together these rules will be very protective and enhance the conservation of the species,” Bernhardt said. “At the same time we hope that they ameliorate some of the unnecessary burden, conflict and uncertainty that is within our current regulatory structure.”
The changes are in keeping with a broader pattern of regulatory moves in the Trump administration aimed at reducing cost and other burdens for businesses, particularly the energy business. Last month the Trump administration also started the process of rolling back the National Environmental Policy Act, an obscure law that is considered the cornerstone of environmental policy, laying out the process federal agencies must follow when considering major infrastructure projects.
Western Republicans and business groups, particularly the oil and gas industry, have long sought changes to both laws. The Endangered Species Act, many have argued, is outdated, costly and allows for too many lawsuits from environmental organizations.
Kathleen Sgamma, president of the Western Energy Alliance, praised the Trump administration proposal, saying that “for too long the ESA has been used as a means of controlling lands in the West rather than actually focusing on species recovery.” She said she hoped the changes, which she described as a “tightening” of procedures, will help lift restrictions on “responsible economic activities on private and public lands.”
Environmentalists expressed concern the changes will gut protections for the country’s most threatened species and cripple the agency’s ability to address climate change.
Currently, for example, the law defines a threatened species as one “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” But for years the definition of “foreseeable future” has been vague.
Under the proposed changes, the federal government will for the first time create a definition. According to the Interior Department, it will “make it clear that it extends only as far as they can reasonably determine that both the future threats and the species’ response to those threats are probable.”
Bob Dreher, senior vice president for conservation programs at Defenders of Wildlife, an environmental group, said that move puts climate change in the cross hairs. “If they define it narrowly, then they’ll close their eyes to the fact that 30 years down the road polar bears will be endangered due to sea-level rise,” he said.
Another significant change, which has been rumored since April when a proposal was posted to the White House’s Office of Management and Budget, affects what is known as the “Removal of Blanket Section 4(d) Rule.”
The proposal would alter how the Endangered Species Act deals with animals that are categorized as “threatened,” or one level below “endangered.” Endangered species are at risk of extinction throughout much of their range, whereas threatened species are likely to become endangered in the near future.
The Section 4(d) rule requires agencies to automatically extend protections to threatened species that mirror those of endangered species. Changing that rule, which is what the title of the proposal suggests is being considered, could roll back some of those protections.
Richard B. Stewart, a professor of environmental law at New York University, said the logic for the Section 4(d) rule was that “if you wait until the species’ numbers are actually small enough that it’s going to become extinct, it may be difficult or too late” to save it. The threatened list, he said, is designed “to anticipate a species is sort of going downhill sufficiently in advance, and protect it.”
Bernhardt also said Wednesday that a section of the law that provides for consultations among federal agencies when considering permit applications would be streamlined. He described it as “where the rubber meets the road of the Endangered Species Act,” and said he expected the process to be improved.
“Our general intention is to maintain the scope of consultation, but that’s always in the eye of the beholder,” he said.
The Endangered Species Act passed Congress in 1973 with bipartisan support and was signed into law by President Richard M. Nixon. Specifically, Section 4(d) directs the agencies that implement the act — the Fish and Wildlife Service and the National Oceanic and Atmospheric Administration — to issue regulations to protect threatened species from actions that injure or kill them. NOAA, which deals with marine species, issues rules on a species-by-species basis. The Fish and Wildlife Service, which is responsible for freshwater fish and all other species, has taken a different approach.
In 1978 it expanded the strict protections that apply to endangered species so that they also apply to all threatened species, although exceptions can be granted. This expanded protection is known as the “blanket” Section 4(d) rule.
There are hundreds of animal species listed as threatened under the Endangered Species Act, including the Yosemite toad, the piping plover and the northern spotted owl. The protection of the owl is the source of a long-running conflict between loggers and environmentalists.
The public will have 60 days to offer comments to the proposed changes before a final plan is issued.