As the public comment period closed for the Trump administration’s plan to overhaul the 1973 Endangered Species Act, the dangerous ramifications of the proposals had become clear. And unfortunately, instead of reducing conflicts in conservation, they will invite more.
Here are four takeaways from Trump’s ESA changes you should be aware of, and why they matter.
1) Illegally takes economic considerations into account
The administration wants to remove regulatory language that prohibits the U.S. Fish and Wildlife Service and National Marine Fisheries Service from considering costs or other economic impacts when deciding whether a species should be listed as “threatened” or “endangered.”
Such a change would be akin to considering the cost of treatment when making a medical diagnosis – when treatment should never determine how a doctor diagnoses a patient. Under the ESA, listing decisions must be made “solely on the basis of the best scientific and commercial data available.”
If the U.S. Department of Interior continues in this direction it’s sure to be challenged in court.
2) Sidesteps climate change risks
This rule change would let the Fish and Wildlife and the National Marine Fisheries services avoid designating critical habitat when federal consultation can’t directly resolve the problem at hand – for example, when “melting glaciers” and “loss of sea ice” contribute to population declines.
It means that critical habitat designation for species affected by climate change, such as the polar bear and wolverine, would cease. Never mind that scientists predict climate change could lead to the extinction of 40 percent of North American species by 2050.
This rule change patently disregards settled science. Given the ever-increasing impacts of climate change on ecosystems, it would allow the agencies to ignore critical habitat designations for most listed species. It’s contrary to their mandate from Congress and could be disastrous for wildlife in America.
3) Removes blanket 4(d) rule
This bureaucratic-sounding rule is critically important: For the first time since 1978, it would remove default protections for threatened species and require the Fish and Wildlife Service to make recovery plans on a case-by-case basis. The agency is neither staffed nor funded to do that, which means vulnerable wildlife will fall through the cracks.
Under the blanket rule, species automatically earn protection from habitat changes that kill, injure or harm them – an essential and practical provision with built-in flexibility that provides certainty for landowners, saves agency resources and keeps species off the endangered species list.
If special rules must be devised for each threatened species, listing protections will lack national consistency and landowners will have little clarity on how they affect private property. Vulnerable species, meanwhile, would be risking extinction.
4) Changes critical habitat designations
These designations are the key mechanism through which Congress set out to protect endangered species 45 years ago. Importantly, it provides a toolbox for implementing the law that has also helped the Fish and Wildlife and the National Marine Fisheries services identify and protect historic ranges for restoration or rehabilitation, among other things.
Critical habitat designations have at times clashed with the interests of landowners. The law is flexible, however, and policymakers have numerous ways to address such conflicts under the ESA. But the administration’s current plan does little to address the underlying problem.
Instead, it would use convoluted definitions to limit habitat designation, making recovery harder and more expensive in the long run. In reality, critical habitat designations rarely, if ever, prevent development on private land, a 2015 study found.
So what’s next?
The Trump administration will try to move this forward as quickly as possible, but it will likely be months before the tens of thousands of public comments submitted by the September 24 deadline are reviewed and a final rule is published. Assuming the administration continues to push for its ESA overhaul, the battle over wildlife protections will continue.
By Mark Rupp
September 25, 2018