White House weak­ens En­dan­gered Species Act

Reg­u­la­tors can now con­sider eco­nomic im­pact of list­ing

Santa Fe New Mexican - - FRONT PAGE - By Lisa Fried­man

WASH­ING­TON — The Trump ad­min­is­tra­tion on Mon­day an­nounced it would change the way the En­dan­gered Species Act is ap­plied, sig­nif­i­cantly weak­en­ing the na­tion’s be­drock con­ser­va­tion law and mak­ing it harder to pro­tect wildlife from the mul­ti­ple threats posed by cli­mate change.

The new rules would make it eas­ier to re­move a species from the en­dan­gered list and weaken pro­tec­tions for threat­ened species, the clas­si­fi­ca­tion one step be­low en­dan­gered. And, for the first time, reg­u­la­tors would be al­lowed to con­duct eco­nomic as­sess­ments — for in­stance, es­ti­mat­ing lost rev­enue from a pro­hi­bi­tion on log­ging in a crit­i­cal habi­tat — when de­cid­ing whether a species warrants pro­tec­tion.

Crit­i­cally, the changes also would make it more dif­fi­cult for reg­u­la­tors to fac­tor in the ef­fects of cli­mate change on wildlife when mak­ing those de­ci­sions be­cause

those threats tend to be decades away, not im­me­di­ate.

Over­all, the re­vised rules ap­pear very likely to clear the way for new min­ing, oil and gas drilling, and de­vel­op­ment in areas where pro­tected species live.

In­te­rior Sec­re­tary David Bern­hardt said the changes would mod­ern­ize the En­dan­gered Species Act — which is cred­ited with res­cu­ing the bald ea­gle, the griz­zly bear and the Amer­i­can al­li­ga­tor from the brink of ex­tinc­tion — and in­crease trans­parency in its ap­pli­ca­tion. “The act’s ef­fec­tive­ness rests on clear, con­sis­tent and ef­fi­cient im­ple­men­ta­tion,” he said in a state­ment Mon­day.

The new rules are ex­pected to go into ef­fect next month.

En­vi­ron­men­tal groups, Demo­cratic state at­tor­neys gen­eral and Democrats in Con­gress de­nounced the changes and vowed to chal­lenge them in Con­gress and the courts.

Maura Healey, the at­tor­ney gen­eral of Mas­sachusetts, called the changes “reck­less” and said states would “do ev­ery­thing we can to op­pose th­ese ac­tions.”

Sen. Tom Udall of New Mex­ico, the top Demo­crat on the Se­nate com­mit­tee that over­sees the In­te­rior De­part­ment’s bud­get, said Democrats were con­sid­er­ing in­vok­ing the Con­gres­sional Re­view Act, a 1996 law that gives Con­gress broad author­ity to in­val­i­date rules es­tab­lished by fed­eral agen­cies, to block the changes.

The En­dan­gered Species Act has been reg­u­la­tors’ most powerful tool for pro­tect­ing fish, plants and wildlife ever since it was signed into law by Pres­i­dent Richard Nixon in 1973. The pere­grine fal­con, the hump­back whale, the Ten­nessee pur­ple cone­flower and the Florida man­a­tee all very likely would have dis­ap­peared with­out it, sci­en­tists say.

Repub­li­cans have long sought to nar­row the scope of the law, say­ing that it bur­dens landown­ers, ham­pers in­dus­try and hin­ders eco­nomic growth. Bern­hardt, a for­mer oil and gas lob­by­ist, wrote in an op-ed last sum­mer that the act places an “un­nec­es­sary reg­u­la­tory bur­den” on com­pa­nies.

They also make the case that the law is not rea­son­able be­cause species are rarely re­moved from the list. Since the law was passed, more than 1,650 have been listed as threat­ened or en­dan­gered, while just 47 have been delisted be­cause their pop­u­la­tions re­bounded. Dur­ing the past two years Repub­li­cans made a ma­jor leg­isla­tive push to over­haul the law. De­spite hold­ing a ma­jor­ity in both houses of Con­gress, though, the pro­pos­als were never taken up in the Se­nate. With Democrats now in con­trol of the House, there is lit­tle chance of those bills pass­ing.

The Trump ad­min­is­tra­tion’s re­vi­sions to the reg­u­la­tions that guide the im­ple­men­ta­tion of the law, how­ever, mean op­po­nents of the En­dan­gered Species Act are still poised to claim their big­gest vic­tory in decades.

Among the most con­tro­ver­sial changes are the lim­i­ta­tions on the abil­ity of reg­u­la­tors to take cli­mate change into con­sid­er­a­tion when mak­ing list­ing as­sess­ments.

David Hayes, who served as a deputy in­te­rior sec­re­tary un­der Pres­i­dent Barack Obama and is now ex­ec­u­tive di­rec­tor of the State En­ergy and En­vi­ron­men­tal Im­pact Cen­ter at the New York Univer­sity School of Law, said the changes would “strait­jacket the sci­en­tists to take cli­mate change out of con­sid­er­a­tion” when de­ter­min­ing how to best pro­tect wildlife.

A re­cent United Na­tions as­sess­ment, some en­vi­ron­men­tal­ists noted, warned that hu­man pres­sures are poised to drive 1 mil­lion species into ex­tinc­tion and that pro­tect­ing land and bio­di­ver­sity is crit­i­cal to keep green­house gas emis­sions in check.

Cli­mate change, a lack of en­vi­ron­men­tal stew­ard­ship and mass in­dus­tri­al­iza­tion all have con­trib­uted to the enor­mous ex­pected global na­ture loss, the U.N. re­port said.

An­other con­tentious change re­moves long-stand­ing lan­guage that pro­hibits the con­sid­er­a­tion of eco­nomic fac­tors when de­cid­ing whether a species should be pro­tected.

Un­der the cur­rent law, such de­ter­mi­na­tions must be made solely based on sci­ence, “with­out ref­er­ence to pos­si­ble eco­nomic or other impacts of de­ter­mi­na­tion.”

Gary Frazer, as­sis­tant di­rec­tor for en­dan­gered species with the U.S. Fish and Wildlife Ser­vice, said that phrase had been re­moved for rea­sons of “trans­parency.” He said the change leaves open the pos­si­bil­ity of con­duct­ing eco­nomic analy­ses for in­for­ma­tional pur­poses but that de­ci­sions about list­ing species would still be based ex­clu­sively on sci­ence.

En­vi­ron­men­tal groups saw a dan­ger in that. “There can be eco­nomic costs to pro­tect­ing en­dan­gered species,” said Drew Ca­puto, vice pres­i­dent of lit­i­ga­tion for lands, wildlife and oceans at Earthjus­tice, an en­vi­ron­men­tal law or­ga­ni­za­tion. But, he said, “If we make de­ci­sions based on short-term eco­nomic costs, we’re go­ing to have a whole lot more ex­tinct species.”

The new rules also give the govern­ment sig­nif­i­cant dis­cre­tion in de­cid­ing what is meant by the term “fore­see­able fu­ture.” That is a se­man­tic change with far-reach­ing im­pli­ca­tions, be­cause it en­ables reg­u­la­tors to dis­re­gard the ef­fects of ex­treme heat, drought, ris­ing sea lev­els and other con­se­quences of cli­mate change that may oc­cur sev­eral decades from now.

When ques­tioned about that change and its im­pli­ca­tions in the era of cli­mate change, Frazer said the agency wanted to avoid mak­ing “spec­u­la­tive” de­ci­sions far into the fu­ture.

Among the an­i­mals at risk from this change, Ca­puto listed a few: Po­lar bears and seals that are los­ing cru­cial sea ice; whoop­ing cranes whose mi­gra­tion pat­terns are shift­ing be­cause of tem­per­a­ture changes; and bel­uga whales that will have to dive deeper and longer to find food in a warmer Arc­tic.

Rep. Rob Bishop of Utah, the top Repub­li­can on the House Nat­u­ral Re­sources Com­mit­tee, ap­plauded the changes, say­ing the En­dan­gered Species Act had be­come a “po­lit­i­cal weapon in­stead of a tool to pro­tect wildlife” un­der the Obama ad­min­is­tra­tion.

“Th­ese final re­vi­sions are aimed at en­hanc­ing in­ter­a­gency co­op­er­a­tion, clar­i­fy­ing stan­dards, and re­mov­ing in­ap­pro­pri­ate one-size-fits-all prac­tices,” he said.

Erik Mil­ito, a vice pres­i­dent at the Amer­i­can Petroleum In­sti­tute, a trade group rep­re­sent­ing the oil and gas in­dus­try, also praised the new rule and said the changes would re­duce “du­plica­tive and un­nec­es­sary reg­u­la­tions.”


A griz­zly bear in Yel­low­stone Na­tional Park in 2018. The Trump ad­min­is­tra­tion an­nounced Mon­day that it would change the way the En­dan­gered Species Act is ap­plied, sig­nif­i­cantly weak­en­ing the na­tion’s be­drock con­ser­va­tion law cred­ited with res­cu­ing the griz­zly, bald ea­gle and Amer­i­can al­li­ga­tor from ex­tinc­tion.


A bald ea­gle, one of the En­dan­gered Species Act’s suc­cess sto­ries, is seen in Fe­bru­ary perched atop a tree branch over­look­ing the coun­try­side near Cas­tle Dale, Utah.

David Bern­hardt

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