With less than a year remaining in office, the Obama administration is moving aggressively ahead to ensure that its “environmental legacy” will endure well beyond Jan. 20, 2017.
Blocked by a reluctant Congress from pursuing its agenda through legislation, the White House is using executive power to re-interpret, and effectively re-write, existing environmental statutes to conform to its broader green vision. While much attention has been focused on the Environmental Protection Agency’s (EPA) efforts to limit the use of fossil fuels, and to expand its jurisdiction over private land through its “waters of the United States” (WOTUS) rule, the Interior Department has been quietly writing new rules and regulations under the Endangered Species Act (ESA) that will hand broad new powers to federal bureaucrats charged with enforcing the ESA.
More Land and Water Being Included in Critical Habitat Designations
The Interior Department’s Fish & Wildlife Service (FWS) has released four final rules and two policies that the agency readily admits will result in the listing of more species and the expansion of critical habitat under the ESA. As noted by Cheyenne, Wyoming-based attorney Karen Budd-Fallen, prior to the Obama changes, a species was listed as threatened or endangered based on the “best scientific and commercial data available.” Now, under the Obama changes to the ESA, “the principles of conservation biology” are to be included in the data. Conservation biology is a school of thought within the environmental movement that took flight in the 1980s and that “puts emphasis on biodiversity and sustainability over time,” according to Richard Everett, a scientist formerly with the U.S. Forest Service and now at Washington State University, Pullman. “It is concerned only with plant and animal habitat and does not consider human use of the land.”
Having tilted the playing field against the role of humans in nature, the Obama administration has also rewritten the ESA’s policies on the relationship between an endangered or threatened species and its habitat. Now, instead of listing species within the range where the problem lies, “all species within the entire range will be listed as threatened or endangered,” Budd-Fallen points out.
Third, integrating the principles of conservation biology into the ESA process, FWS will expand the definition of critical habitat by initially considering the designation of both occupied and unoccupied habitat, including habitat with potential “primary constituent elements” (PCEs). PCEs are elements the species needs for feeding, breeding, and sheltering. “In other words, not only is the FWS considering habitat that is or may be used by the species, the FWS will consider habitat that may develop PCEs sometime in the future,” she adds. “There is no time limit on when such development of PECs will occur, or what kind of events have to occur so that the habitat will develop PCEs. The FWS will then look outside occupied and unoccupied habitat to decide if the habitat will develop PCEs in the future and should be designated as critical habitat now.” Budd-Fallen further points out that FWS “has determined that critical habitat can include temporary or periodic habitat, ephemeral habitat, potential habitat, and migratory habitat, even if that habitat is currently unusable by the species.”
Inadequate Notification of Landowners
In a further effort to confuse the public on the extent of its ESA-related activities, FWS has announced that it will no longer publish the text, legal descriptions or GIS coordinates for critical habitat, and instead it will only publish maps of the critical habitat designations. “Given the small size of the Federal Register, I do not think this will adequately notify landowners whether their private property is included or excluded from a critical habitat designation,” Budd-Fallen writes.
Fifth, FWS has also significantly limited what economic impacts are considered as part of critical habitat designation. FWS has issued a final rule saying that ONLY economic costs attributable SOLELY to critical habitat designation will be analyzed. “This rule substantially reduces the determination of the cost of critical habitat designation because the FWS can claim that almost all costs are based on listing of the species because if not for the listing, there would be no critical habitat.” Budd-Fallen notes.
Finally, FWS has determined that while completing the economic analysis is mandatory under the ESA, the consideration of whether habitat should be excluded based on economic considerations is discretionary. “In other words, under the new policy, the FWS is no longer required to consider whether areas should be excluded from critical habitat designation based upon economic costs and burdens,” Budd-Fallen adds.
Unchecked Expansion of Federal Power
FWS’s unilateral rewriting of the regulations and policies of the ESA means the agency has effectively amended the law to suit its purposes, without congressional approval. Indeed, the cumulative effect of these changes will have far-reaching consequences in areas where FWS decides there are species to save. The new rules put landowners in or near areas designated by FWS as critical habitat for threatened or endangered species at an even greater disadvantage than has been the case since the ESA’s enactment in 1973. Under the guise of protecting whatever species is deemed at risk, the feds have given themselves more power to exclude human activity over more land, with nary a thought given to the interests and concerns of local residents.