This week, the Trump administration announced new changes to the implementation of the Endangered Species Act, kneecapping its ability to protect threatened and endangered species and the land, air, and water access they rely on. The rules, first announced in draft form last summer, make it easier for regulators to cut species from the endangered list, limit protections for threatened species, and allow for economic factors to be considered when listing species and shrinking the boundaries of “critical habitat” necessary for a species’ survival.
In total, the changes appear to prioritize new development and economic growth over the well-being of critical flora and fauna, just as the United Nations released two reports in the last three months declaring that
1 million species are at risk of extinction and that humans must overhaul our land use to maintain biodiversity.
To help understand the new restrictions on the pivotal law passed by President Nixon, Intelligencer spoke to David J. Hayes — the director of the State Energy & Environmental Impact Center at NYU School of Law, and the deputy secretary of the Department of the Interior during President Obama’s first term — who discussed how the new ESA statutes are consistent with the Trump administration’s disdain for environmental regulation and the terrible example that the United States is setting on conservation abroad.
Could you explain the historical importance and successes of the Endangered Species Act?
The Endangered Species Act is one of our bedrock environmental laws, and it’s been very successful: Ninety-nine percent of the listed species have not gone extinct over the last 50 or so years it’s been in place. A large number of species that were very close to the edge of blinking out are recovering — species like the California condor, whooping cranes, black-footed ferrets, and wolves. Others, like the bald eagle, have been taken off the endangered list entirely.
The law is a favorite whipping boy of folks on the right, blaming it for impeding economic development. The reality is that the ESA has enabled our nation to continue to maintain biodiversity, protect important species, and do so in a sensible way despite constant barrages from the right over the last several decades.
Proponents of the changes have said they will help clarify standards and provide transparency. Is there some merit to those claims, or are they more of a pretext to allow for a pathway to development?
In my view, it’s a pretext. The ESA’s regulations have been in place for decades and have been operating well. When you look at the significant changes that the Trump administration is now making, it’s a one-way ratchet. It’s all about removing protections, rather than focusing on how to improve how the law can better protect species.
Perhaps the prime example is the new requirement that when [endangered and threatened species] listing decisions are made, the decision-maker is going to be required to have an economic analysis prepared. The statute is very clear that listing decisions — deciding whether a species is threatened or endangered — is a science-based decision and science alone. Economics are not to be taken into account. But regulatory language that reemphasized that point was stricken, and there’s now a requirement that economics be included in the decision-making package with the science. That is unlawful. It’s obviously an attempt to come up with nonscientific arguments to keep species off the list.
It seems like regulations designed to limit scientific input — like the “foreseeable future” clause — are a big theme in the ESA changes.
When you move a species from a threatened level to an endangered level, you need to look at the foreseeability of that species going extinct, based on habitat loss, the number of remaining animals, and other factors. The language in the new regs now adds the word “likely” to the equation, so you have to show that a species is “likely” to go extinct in the foreseeable future. That’s an ambiguous term, which puts your hand on the scale in terms of proving what foreseeability means. Also, new language calls on scientists to focus on “threat-projection timeframes” in the apparent hope that longer-range, negative climate impacts on species will be discounted.
There are also a lot of new terms in the changes like “environmental variability” which serve as code language for avoiding reliance on climate change models. But if the administrating were actually interested in adding clarifications into key issues that scientists should look at when making endangered-species listings — which is what this exercise is purporting to do — how can you not even reference the words “climate change?” We’re already seeing how climate change is affecting species big time in the U.S.
How does the new statute affect threatened species one step shy of being endangered?
So a threatened species is a species expected to go extinct in the foreseeable future but isn’t completely on the brink. They are in serious, serious trouble. But the statute puts all the penalties on endangered species and not on threatened species. So recognizing in many cases that it’s a very thin distinction, the U.S. Fish and Wildlife Service’s regulations have long said, essentially, “Look, if we’re putting a species on the list as threatened, we’re going to treat it as endangered, meaning that the enforcement provisions apply if folks go out there and kill these animals, they’re subject to criminal and civil penalties.” The new regulations have changed that presumption and lifted those protections.
How has critical habitat — defined as the “areas essential to the conservation of endangered and threatened species” — been affected by the changes?
A very important aspect of the Endangered Species Act is to identify critical habitat for a species after they’ve been listed. This is an arena where you can look at other factors, including economics. Critical habitat determinations have particularly important implications in connection with federal projects, like oil and gas drilling on public lands. Now there’s a new exemption that says if there’s a threat to critical habitat the permitting agency can’t address — like climate change — it doesn’t have to identify that land as critical habitat.
So if an area is affected by sea rise caused by climate change, well, the agency can’t do anything about that, so you don’t have to identify it as critical habitat. So you’re taking off the table habitat that’s critical to the species, but because it’s being hurt by climate change, you’re assuming that nothing can be done about it and you’re pretending it’s not critical habitat anymore.
These new regulations follow a pattern in this administration of favoring the interests of extractive industries over wildlife and biodiversity, rather than looking to accommodate both.
The Endangered Species Act has served as a template for many other countries’ conservation efforts. How might these rollbacks reverberate on an international level? Aside from the fact that animals — birds and aquatic life, in particular — aren’t concerned about international borders, that is.
Not only is this administration downplaying the importance of endangered species here at home, it is doing so abroad. I’m thinking of trophy-hunting, where the administration has now eased limits on bringing back animal parts from trophy hunting from Africa. Former Interior secretary Ryan Zinke got rid of an advisory council he had on international wildlife trafficking and replaced it with an advisory council on international hunting. These signals provide room and essential license for countries to take these issues off the table.
When John Podesta and President Obama were negotiating with China on key trade issues, they raised issues around endangered species and helped push the Chinese to limit the ivory trade because it is decimating elephants. Do you think that these issues have had any air time and any discussions with China since then?
Obviously this rollback has been in the works for a while, but what do you think of the timing of this law, coming three months after a May report from the U.N. that estimated 1 million plant and animal species are now at risk of extinction?
Well, it’s coming after that U.N. report and the IPCC report on land use — either one of those, and certainly both in combination within weeks of each other, would give pause to an administration about coming out with rules that go in the opposite direction of protecting species in this incredibly challenging time. But the fact that this administration didn’t blink an eye and continued to go forward with virtually no change to the proposals shows they are oblivious or perhaps spiteful about these international scientific processes that demonstrate the historic seriousness of the problem.
This post has been updated.