The incoming Trump administration and its emboldened congressional allies could soon reshape the Endangered Species Act without really touching the 1973 law.
The GOP-controlled Congress could rescind last-minute ESA-related actions. Appropriations bill riders and targeted legislation could block Biden-era moves.
Office budgets could be cut, if Congress goes along. By themselves, the Interior Department’s new political appointees could rewrite Biden administration regulations.
“I expect they will just have a knee-jerk reaction and pull back regs, shooting themselves in the foot on a policy that could be incredibly useful for infrastructure and agriculture,” said Timothy Male, executive director of the Environmental Policy Innovation Center.
Male cited as an example a Biden-era rule change that gives the Fish and Wildlife Service the power to require compensatory mitigation, also known as offsets, as part of the ESA consultations conducted with other federal agencies.
If history is any guide, a congressional rewrite of the law will remain a bridge too far.
The ESA regulations, by contrast, are a ripe target for every new administration.
The first Trump administration, starting in 2017, rewrote crucial ESA regulations that covered issues from how critical habitat is designated to how costs are taken into account when a species is proposed for listing as threatened or endangered.
This package of ESA revisions drew hundreds of thousands of mostly critical comments. Once implemented, they were entangled in litigation. Some, though not all, were subsequently withdrawn and rewritten in the Biden administration.
“Every administration this century has done significant ESA regulatory reform, and that is almost certain to continue,” said Jonathan Wood, vice president of law and policy with the Property and Environment Research Center, a Montana-based nonprofit that advocates for market-based conservation policies.
An Interior appointee in the first Trump administration, William Perry Pendley, recommended as part of the Heritage Foundation’s sprawling “Project 2025” package that the second Trump administration “rescind the Biden rules and reinstate the Trump rules” regarding critical habitat.
Under the ESA, critical habitat is considered “essential for the conservation of the species.” Any federal agency seeking to authorize, fund or carry out an action on designated land or water must first consult with FWS or NOAA Fisheries. The first Trump administration added new reasons for excluding land from critical habitat designation.
The Biden administration removed this Trump-era ESA change, among a host of others. The Biden team, for instance, also reinstated pre-Trump regulatory language affirming that listing determinations are made without reference to possible economic impacts.
“It’s unclear whether Interior will be interested in rewriting major aspects of the law via regulations,” said Stephanie Kurose, deputy director of government affairs at the Center for Biological Diversity, “but they can still do immense harm through policies and/or guidance, which we also saw under Trump.”
Kurose added that she is “sure Trump’s appointed officials will be looking for every possible way to weaken the law.”
Congress, too, could act
The Congressional Review Act allows Congress to rescind rules issued within the previous 60 legislative days, and Kurose predicted that “Congress will almost certainly introduce a number of CRA resolutions” aimed at ESA actions.
The Fish and Wildlife Service and NOAA Fisheries could make decisions by the end of the Biden administration affecting a number of species, including a potential delisting of the Yellowstone-area grizzly bear and designation of critical habitat for the Rice’s whale. The CRA covers only final regulations, not proposals.
“Depending on the outcome of those decisions, any one of them could draw a CRA resolution,” Wood said, adding that “the bigger ESA rules are presumably outside the CRA window.”
Kurose noted that congressional Republicans in 2023 used the CRA to attack FWS decisions, but President Joe Biden vetoed those moves.
The House passed by a 220-209 margin vote a CRA resolution to block FWS’ moving the northern long-eared bat from threatened to endangered status. The Senate passed the resolution by a 51-49 vote, insufficient to overcome Biden’s veto.
A similar death-by-veto fate befell the CRA resolution that would have erased a FWS rule that extended threatened status to the lesser prairie chicken’s northern distinct population segment and endangered status to the bird’s southern distinct population segment.
Big rewrite?
With the power of the purse, Congress could steer money in certain policy directions, such as putting a priority on delisting species. It could also eliminate altogether some offices; or, in the alternative, restore cuts sought by a returning President Trump.
While the first Trump administration never tried to zero out ESA funding, it did try without success to cut in half the amount for listing species. In a non-ESA area, Trump and his then-Interior Secretary Ryan Zinke also sought in 2017 to zero out the $30 million previously provided to FWS’ “science support” and “landscape conservation cooperatives” programs.
Both programs survived intact for the entirety of Trump’s first term.
Most significantly, though perhaps least likely, a Republican-run Congress could attempt a thorough rewrite of the law.
“Meaningful reform of the Endangered Species Act requires that Congress take action,” Pendley wrote in the Project 2025 wish list, and every new Congress typically brings similar Republican-led talk of updating the landmark law.
Myriad legislative rewrites have flamed out despite much fanfare since Congress approved a package of ESA revisions in 1988, but the must-pass appropriations bills have been deployed against narrow targets. Some of these might have even greater success with Trump in the White House and Republicans ruling both House and Senate.
House Republicans, for instance, tried earlier this year to add an appropriations rider that would have blocked FWS from implementing the rule that moved the northern long-eared bat to endangered status.
With a Democrat in the White House and Democrats controlling the Senate, the final package opted instead for language acknowledging the “on-the-ground impacts” of ESA listings and urging the agency to “continue to collaborate” with states, local communities and others on “improving voluntary solutions to conserve species.”
