The Biden administration rolled out a package Wednesday to fortify protections for plants and animals at risk of going extinct, restoring Endangered Species Act provisions that were curtailed during the Trump administration.
The long-awaited proposals from the Fish and Wildlife Service and NOAA Fisheries would prohibit the killing or injuring of threatened species, providing them the same level of protection as for species listed as endangered. They also would guide critical habitat designations, shape how federal agencies conduct ESA consultations and rebuild a firewall separating ESA listings from economic considerations.
They also open up a can of worms, sure to draw fire from a diverse set of critics.
“The Endangered Species Act is the nation’s foremost conservation law that prevents the extinction of species and supports their recovery,” Fish and Wildlife Service Director Martha Williams said in a statement. “These proposed revisions reaffirm our commitment to conserving America’s wildlife and ensuring the Endangered Species Act works for both species and people.”
NOAA Fisheries Assistant Administrator Janet Coit added that “these proposed regulatory updates will help ensure the Act continues to serve as an effective conservation tool in the face of continued challenges, including biodiversity loss and climate change.”
The two agencies administer the landmark 1973 environmental law as it applies to different species. Almost exactly two years ago, the Biden administration announced in June 2021 that they would redo ESA regulations imposed in 2019 during the Trump administration.
It’s a move, put in the starkest possible terms, that’s hailed by many environmentalists, assailed by industry, and all but assured of ending up in court.
“These are promising steps toward restoring the purpose and power of the Endangered Species Act, and getting these protections back is why we challenged the harmful Trump rules for the past four years,” said Earthjustice attorney Kristen Boyles.
Jonathan Wood, vice president of law and policy at the Property and Environment Research Center, a free-market-oriented policy think tank, said in an email that “with two-thirds of endangered species located on private lands, the most effective way to increase the recovery rate for listed species is to improve the incentives for private landowners to restore habitat and perform proactive recovery efforts” but that the proposal “does the opposite.”
Some environmentalists also weren’t pleased with the revisions, saying they don’t go far enough in reversing the Trump administration changes. Stephanie Kurose, senior endangered species policy specialist with the Center for Biological Diversity, lamented that “this proposal fails to protect our nation’s endangered plants and animals … [and] keeps many of the disastrous Trump-era provisions in place.”
The proposals will be open for a 60-day public comment period following their publication in the Federal Register tomorrow. In some cases, they would essentially erase Trump-era regulatory language that shaped how the ESA was implemented.
“I don’t know that we’ll ever end ESA controversy,” Gary Frazer, a 39-year veteran of the Fish and Wildlife Service and current assistant director for ecological services, said in an interview. “It’s a powerful law that deals with issues that affect many parts of our society. It’s inherently challenging, but it’s also something that the public, I think, really supports, the conservation of species.”
And though some of the proposals are big and obvious in their meaning, the package also includes acutely technical tinkering, some enduring questions such as the meaning of “forseeable future,” and some chunks of Trump-era language that is left untouched.
“Most of the 2019 regs are not proposed for revision,” Frazer said. “Although they’re open for public comment, we focus in these revisions on those elements that were particularly challenging, they were controversial or difficult to interpret and apply.”
The law, for instance, requires that listing decisions be made “solely on the basis of the best scientific and commercial data available,” and the Fish and Wildlife Service had subsequently added the explanation that this meant “without reference to possible economic or other impacts of such determination.” The Trump rule abandoned the latter phrase.
This could have meant that cost-benefit analyses would end up presented to the public at the time an ESA listing was proposed. Although technically not part of the listing criteria, these dollars-and-cents calculations could potentially have provided ammunition for one side or another — most likely for those fearful of a listing’s economic and red-tape consequences.
“We find that this change was not the most reasonable interpretation and created the problematic impression that the Services would begin to compile information regarding the economic impacts of classification determinations and that the Services might actually take such information into account directly or indirectly when making classification determinations,” the agencies explained.
The proposed rule adds back the “without reference to possible economic or other impacts of such determination” phrase.
A second proposal, affecting only the Fish and Wildlife Service, concerns the protections given to species listed as threatened, rather than endangered, under the ESA.
The ESA prohibits the “take” of species designated as endangered. This covers myriad actions including those that “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect” an animal or plant. The ban is effectively absolute for endangered species, while Section 4(d) of the law allows the agency to establish special regulations for threatened species.
In 1978, FWS used this authority to extend the prohibition of take to all threatened species. This is known as the “blanket 4(d) rule,” and it essentially meant threatened and endangered species presumptively enjoyed the same protection. Instead of this all-encompassing approach, the Trump administration shifted to a case-by-case consideration of protection levels for threatened species.
“While areas of concern exist within these new regulations, restoring automatic protections for our nation’s threatened species is a huge step in the right direction for the Endangered Species Act and biodiversity,” said Jamie Rappaport Clark, president and CEO of Defenders of Wildlife.
For example, private property owners worried that they might be blocked from forest thinning if all taking of the threatened Louisiana pine snake were absolutely prohibited, so FWS wrote a rule that allows for some potential short-term take of snakes or habitat.
The proposal made public restores the blanket 4(d) rule, while still allowing the Fish and Wildlife Service to craft individual rules for species.
Frazer said that he expects that for many animal species, FWS will could continue doing species 4(d) rules “so we can tailor that protections to those things that really make a difference and provide some incentives for good conservation practices.”
Under the ESA, critical habitat is considered habitat “essential for the conservation of the species.” The proposal includes new wording that FWS says demonstrates a “clear and logical approach for identifying unoccupied critical habitat,” which has been a source of persistent debate.
In response to a challenge by environmental groups, a federal judge ruled that the 2019 Trump-era ESA rules should be taken off the books while the Biden administration worked to replace them. Prompted by industry groups and GOP-led states, the 9th U.S. Circuit Court of Appeals later ruled that the 2019 Trump administration rules would remain in place during the new rulemaking process.
A separate set of Trump-era ESA rules imposed in 2020 have already been erased.