For decades, the 1973 Endangered Species Act (ESA) has hovered like a giant Sword of Damocles over broad swaths of rural America. If some unfortunate farmer, rancher, fruit grower, or any other landowner was found to be harboring a threatened or endangered species on his or her property, all bureaucratic and litigation hell could break loose – and usually did.
Once bureaucrats at the Interior Department’s National Fish and Wildlife Service (FWS) or the Commerce Department’s National Marine Fisheries Service (NMFS) determined that an endangered critter or plant was on farmer Brown’s land, that land was subject to strict regulation that frequently meant financial ruin for the property owner.
Over time, a statute originally intended to save bison, condors, bald eagles, and the like morphed into a powerful legal instrument that environmentalists adroitly used to shut down any activity – farming, ranching, logging, mining, energy extraction – they didn’t like. Rural communities in the West bore the brunt of the assault. Even worse, the ESA provided no incentives for landowners to cooperate with government officials in helping species to recover.
Now, the Trump administration has rolled out long-overdue reforms to both ease the burdens on landowners and actually aid in the recovery of species. The new regulations will affect future listings and will have no effect on species already listed.
The administration’s actions target two sections of the ESA, 4 and 7, that have been at the center of the abuse. In section 4, the administration now stipulates that the criteria used in determining whether a species should be removed (delisted) from the endangered species list or reclassified from endangered to threatened or vice versa are the same as those used in adding a species to the list. This will keep officials at FWS and NMFS from arbitrarily adding criteria that keep species on the ESA list long after they have recovered.
Another crucial area of ESA section 4 undergoing much-needed clarification concerns critical habitat. The Trump regulations reinstate the requirement that areas where threatened or endangered species are present at the time of listing be evaluated first before unoccupied areas are considered. This reduces the potential regulatory burdens that results from designations where species are not present in an area.
In addition, the regulations impose a heightened standard for unoccupied areas to be designated as critical habitat. On top of the existing standard that the unoccupied habitat is essential to the conservation of the species, it must also, at the time of designation, contain one or more of the physical or biological features essential to the species’ conservation.
Climate change would still be considered in future listing decisions. But the role of notoriously unreliable climate models that forecast temperatures far into the future will be reduced. From now on, officials must make such determinations only into what is vaguely referred to as “the foreseeable future.”
The major regulatory change to section 7 of the ESA does away with a unilateral decision made by FWS several years ago that essentially treated threatened and endangered species the same way. The FWS policy, known as the “blanket rule,” was contrary to the original intent of the ESA, which clearly differentiated between threatened and endangered species. The NMFS never adopted the FWS policy. Now the Trump administration has put the two agencies’ policies in alignment by reinstating the different regulatory treatment of threatened and endangered species.
By any reasonable measure, the ESA has been an abject failure. Of the 1,661 species listed as threatened or endangered since 1973, only 3% have been recovered. Endless litigation has tied up resources that could have gone toward species recovery.
And speaking of litigation, more is on the way. The attorneys general of California and Massachusetts, along with a host of environmental groups, have already announced they will take the administration to court over its revisions to the ESA.