The Departments of the Interior and Commerce have unveiled significant changes to the regulations that implement the Endangered Species Act (ESA), altering how the law will be enforced in the future. The revisions will make it easier for regulators to delist species from the endangered species list and remove automatic protections for threatened species.
“The revisions finalized with this rulemaking fit squarely within the President’s mandate of easing the regulatory burden on the American public, without sacrificing our species’ protection and recovery goals,” said Secretary of Commerce Wilbur Ross. “These changes were subject to a robust, transparent public process, during which we received significant public input that helped us finalize these rules.”
ESA was enacted in 1973 with the goal of preventing plants and animals from becoming extinct. The law is credited with successfully saving the gray whale, the grizzly bear, and the bald eagle. The Trump Administration first proposed in July 2018 changes to the enforcement of the ESA that would make it harder to provide protections for certain species.
The rule changes were finalized by the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) on August 12, 2019. The new regulations apply to sections of the ESA that deal with adding or removing species from the protected list and designating critical habitats. The new rules tighten the definition of “foreseeable future” for making crucial ESA decisions. This refers to the policy that requires regulators to consider whether a species is in danger of extinction or is at risk of becoming endangered within the “foreseeable future” when making a listing decision. Under the new policy, foreseeable future “extends only so far into the future as the [USFWS and NMFS] can reasonably determine that both the future threats and the species’ responses to those threats are likely.” Regulators will now have significant discretion in determining what foreseeable future means on a case-by-case basis. “We'll look out in the future only so far as we can reliably predict and not speculate,” said Gary Frazer, Assistant Director for ecological services at USFWS.
The new regulations will for the first time allow regulators to estimate financial costs of providing protections to species when making listing decisions. Under current rules, listing decisions are only be based on science, “without reference to possible economic or other impacts of determination.” Frazer said that results of the economic analyses will be disclosed to the public, and will not violate the provision that economic costs not be weighed. “Nothing in here in my view is a radical change for how we have been consulting and listing species for the last decade or so,” he said.
The revisions also change how regulators can designate “critical habitats”, which are areas crucial for species recovery. Until now, these areas were sometimes still considered “critical” when not occupied by the species in question. The new rules allow officials to designate unoccupied areas “critical habitat” only when the occupied areas are inadequate for the conservation of the species or if inclusion of unoccupied areas would improve conservation efficiency.
Additionally, the new policy limits the ability of regulators to take climate change into consideration when making listing decisions. It also rescinds the “blanket rule” under section 4(d) of the ESA, which had automatically given threatened species the same protections as endangered species.
These revisions apply to future listing decisions and go into effect 30 days after being published in the Federal Register. The new rules do not apply to species currently protected under the ESA.
Criticism of the new rules from environmental groups was swift, with many pointing to a recent UN report that warned that more than one million species of plants and animals worldwide face global extinction due to human development and climate change. Critics contend that the new policy could accelerate the extinction of many species and allow industries to develop on critical ecological habitats. “These changes tip the scales way in favor of industry,” said Brett Hartl, Government Affairs Director for the Center for Biological Diversity, according to Nature. “They threaten to undermine the last 40 years of progress.”
The attorneys general of California and Massachusetts, along with the conservation group, Defenders of Wildlife, have announced plans to challenge the regulation in courts. Last year, attorneys general from 10 states endorsed comments criticizing the proposed revisions to ESA regulations. Democratic lawmakers have said that they will block the revisions. “We need to consider stopping these regulations by any means, including the Congressional Review Act,” said Senator Tom Udall (D-NM), Ranking Member of the Senate Appropriations Subcommittee on Interior and Environment. The Congressional Review Act allows lawmakers 60 legislative days to review rules issued by federal agencies and vote on whether to overturn the regulation.