The Fish and Wildlife Service and NOAA Fisheries reimposed stricter Endangered Species Act rules Thursday that reverse some of the Trump administration’s most controversial environment-related initiatives.
Capping several years of study, the two federal agencies announced the final ESA rules that they say will better protect species and their habitats but that critics contend will overly burden industry and property owners.
“These revisions underscore our commitment to using all of the tools available to help halt declines and stabilize populations of the species most at-risk,” Fish and Wildlife Service Director Martha Williams said in a statement.
Taken together, the three final rules drew approximately 488,000 public comments during the review period. While many of the comments were duplicates, amounting to signatures on form letters, the sheer volume far surpassed that for most federal regulatory actions. It also underscored how the Endangered Species Act still looms large in Congress, courtrooms and beyond 51 years after President Richard Nixon signed it into law.
Gina Shultz, acting assistant director of ecological services with the Fish and Wildlife Service, said that “endangered species rules attract public interest” and that “people understand the ESA is more important than ever to conserve and recover imperiled species now and for generations to come.”
Put another way, the rules rolled out Thursday are not the end of the story.
“That’s sort of the reality of the Endangered Species Act,” said Jonathan Wood, vice president of law and policy at the Montana-based Property and Environment Research Center. “Every significant change, regardless of what the issue is or what the direction is, is going to be litigated. That’s unfortunate, but that’s sort of how it works.”
The flood of public comments carried some weight with the agencies as they fine-tuned their original proposals made last summer. Some of these revisions may sound like acute nitpicking but could have serious implications down the road.
The phrase “foreseeable future,” for instance, which is used in one of the rules, is important in guiding ESA decisions on whether a species should be considered threatened.
The agencies originally proposed that the term cover “as far into the future as the Services can reasonably rely on information about the threats to the species and the species’ responses to those threats.” The final rule tweaked this to say the phrase “extends as far into the future as the Services can make reasonably reliable predictions about the threats.”
House Republicans have frequently spoken of the need to update and revise the underlying law, and the chair of the House Natural Resources Committee, Rep. Bruce Westerman (R-Ark.), last year set up an ESA working group, but assorted legislative proposals have so far failed to gain bipartisan traction.
This deadlock on Capitol Hill, in turn, has enhanced the importance of executive agency rule-setting. Two of the new rules govern how both the Fish and Wildlife Service and NOAA Fisheries implement the landmark environmental law, and a third rule affects only the FWS.
“I think it is more evidence that the Biden administration wants to double down on regulatory constraints on private property rights,” Jim Burling, vice president of legal affairs with the Pacific Legal Foundation, told E&E News. “They seem to show no understanding or no willingness to have a middle ground, if you will.”
Environmentalists also didn’t entirely embrace the changes, as they wanted the agencies to take a more aggressive approach.
Ben Jealous, executive director of the Sierra Club, said that “the Biden administration has reversed some of the worst aspects of the Trump regulations,” while adding that “it missed an opportunity” to do more.
Jamie Rappaport Clark, president and CEO of Defenders of Wildlife, likewise said that while “we appreciate the administration’s work on this matter … at the end of the day much work remains to be done to ensure the Endangered Species Act can fulfill its critical lifesaving mission.”
Stephanie Kurose, a senior policy specialist at the Center for Biological Diversity, called the rules a ”massive missed opportunity to address the worsening extinction crisis” and calculated the changes “fully addressed” only seven of the “31 harmful” provisions set in the Trump administration.
Among the potentially most important changes, a regulation affecting only the Fish and Wildlife Service restores a “blanket rule” that automatically extends to threatened species the same ultra-strict protections granted species found to be endangered.
The ESA makes it illegal to “take” an endangered species. This broad term covers everything from outright killing or disturbing to, in the case of animals, harassing. For some 40 years prior to the Trump administration, the Fish and Wildlife Service had a “blanket rule” that automatically extended the strict level of protection to the threatened species while allowing special “4(d)” rules to be written allowing, for instance, the incidental destruction of habitat resulting from activities like forest thinning.
In February, for instance, the Fish and Wildlife Service listed the silverspot butterfly from Colorado, New Mexico and Utah as threatened. The listing came with a 4(d) rule that exempts, among other things, harm to any butterflies from maintenance and operation of existing utility infrastructure within existing rights of way.
The Trump administration ended the Fish and Wildlife Service’s “blanket rule” presumption that threatened and endangered species get the same level of protection. With the new rules, that presumption returns.
“We anticipate that for some species we will determine that a species-specific 4(d) rule would be appropriate while for other species we will determine that ‘blanket rule’ protections are appropriate,” the Fish and Wildlife Service noted.
For both of the agencies that share responsibility for administering the ESA, the rules reemphasize that science alone will drive the decisions to list a species and to designate critical habitat.
The ESA requires listing decisions to be made “solely on the basis of the best scientific and commercial data available.” The Trump administration had excised a phrase from the regulations that noted listing decisions would be made “without reference to possible economic or other impacts.” This, in turn, led critics to worry that a cost-benefit analysis might be published in the listing proposal process that would unduly influence decisionmakers and public opinion.
“For example, during the comment period for the California spotted owl proposed listing, we received a comment … stating ‘FWS must refrain from issuing a final decision on whether or not to approve the proposed listing for Spotted Owls until after a comprehensive economic analysis has been completed,'” the Fish and Wildlife Service recounted.
The rule adds back the previous “without reference to possible economic or other impacts” phrase.
“By leveraging the best available science, we ensure the law remains robust as we work to conserve and recover endangered and threatened species and their habitats,” said NOAA Fisheries Assistant Administrator Janet Coit.
