Trump Administration ESA Reforms Emphasize Species at Most Risk

Published September 30, 2019

The U.S. Department of the Interior (DOI) unveiled new regulations guiding how the 46-year-old Endangered Species Act (ESA) will be carried out nationwide.

DOI says the reforms are aimed at reducing costs and focusing scarce agency resources on recovering species most at risk of disappearing in the near future.

Enacted in 1973, ESA is jointly administered by DOI’s Fish and Wildlife Service (FWS) and the Commerce Department’s National Marine Fisheries Service (NMFS), with occasional input from other agencies.

Differentiating Between Species

The Trump administration is implementing the changes to improve species protection while respecting private property and promoting economic growth.

One change stipulates 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 for adding a species to the list. The goal is to prevent officials at FWS and NMFS from arbitrarily adding criteria to keep species on the ESA list after they have recovered.

FWS has also reversed a longstanding policy known as the “blanket rule,” under which the service treated threatened and endangered species identically.

Under the law as written, less stringent rules are supposed to apply to threatened species than to endangered ones. The NMFS never adopted the FWS’s blanket rule, noting it was contrary to the original intent of the ESA, which clearly differentiated between threatened and endangered species. The Trump administration has now aligned the two agencies’ policies by establishing threatened and endangered species are different and that conservation efforts should treat them as such.

Improving Transparency, Effectiveness

The Trump administration’s regulatory reforms also improve transparency regarding the costs of species’ protection efforts.

ESA specifies FWS and NMFS must use only science to determine whether to list a species as endangered or threatened, without considering the estimated costs of protecting a species. However, nothing in the law prevents the agencies from estimating the costs of species’ protection efforts. Other environmental laws require agencies to enact environmental and public health protections based solely on scientific analysis of risk, but they also mandate responsible agencies calculate the benefits and costs of proposed regulations. The Trump administration is now applying the same standard to ESA protections.

Listing decisions must still be made without considering costs, but the government is now required to identify and communicate the effects of these decisions.

Critical Habitat, Foreseeable Risks

Another reform revises how critical habitat for species recovery is designated, reinstating a requirement that officials review currently occupied areas before considering uninhabited ones. The Barack Obama administration had changed the critical habitat rule to impose equally stringent restrictions on privately owned potential habitats lacking any endangered species as those on occupied habitats.

“The Secretary will designate as critical habitat, at a scale determined by the Secretary to be appropriate, specific areas outside the geographical area occupied by the species only upon a determination that such areas are essential for the conservation of the species … [and] there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species,” the rule states.

The second provision clarifies, in accordance with a Supreme Court ruling, any area declared critical habitat be a truly viable location for the species.

As to potential risks to endangered species from climate change, the administration is limiting consideration to situations that could result in a decline in species’ numbers or health in what the new rules refer to as “the foreseeable future.” This reform was implemented in response to complaints it is impossible to project realistically what environmental changes might occur 100 or even 50 years in the future, or how such changes might affect currently endangered species.

‘On-the-Ground Conservation’

Under the previous rules, the federal government squandered scarce resources that could have been better allocated elsewhere, said DOI Secretary David Bernhardt in a press release describing the reasons for the regulatory changes.

“The best way to uphold the Endangered Species Act is to do everything we can to ensure it remains effective in achieving its ultimate goal—recovery of our rarest species,” Bernhardt said. “An effectively administered Act ensures more resources will go where they will do the most good: on-the-ground conservation.”

FWS’s rule changes should improve species recovery efforts, says Becky Humphries, CEO of the National Wild Turkey Federation.

“We applaud the Department of Interior for clarifying the rules and streamlining the consultation process, paving the way for important forest restoration work that benefits and protects threatened and endangered species before disaster strikes and the habitat is destroyed,” Humphries said in a statement.

Incentives to Cooperate

To improve protection of endangered species, the federal government must change the incentives ESA creates for landowners to make their property unattractive to species at risk of extinction, says Daren Bakst, a senior analyst at The Heritage Foundation.

“If the federal government is to better conserve species, it needs to stop creating disincentives for private property owners to help in these efforts,” said Bakst. “When the same stringent restrictions on private property use are imposed on landowners regardless of whether a species is threatened or endangered, property owners don’t have much incentive to help out.

“If the stringent prohibitions didn’t apply to threatened species, landowners would have an incentive to protect these species from becoming endangered in order to avoid the added restriction on the use of their property,” Bakst said. “The new ESA rules, including the change to the ‘blanket rule,’ recognize the harm of diverting resources away from species needing the help.”

Bonner R. Cohen, Ph.D. ([email protected]) is a senior fellow at the National Center for Public Policy Research and a senior policy analyst with the Committee for a Constructive Tomorrow.