The Species Act, Endangered: ‘Like a Plan From a Cartoon Villain’
In early May, a United Nations panel on biodiversity released a deeply troubling 1,500-page report warning that as many as one million plant and animal species were at risk of extinction worldwide. It strongly urged nations everywhere to accelerate efforts to save the marine and terrestrial life that remain — the mammals, the birds, the fish, the plants, even the insects that pollinate the world’s food supply. The report also noted that global warming had become a major driver of this alarming decline, shrinking or shifting the ecosystems in which wildlife had evolved.
Now comes what amounts to a thumb in the eye from the Trump administration: The Interior Department announced a set of rules on Monday that, far from enlarging protections, will weaken how the nation’s most important conservation law, the Endangered Species Act, is applied. The proposed changes would make it harder to shield fragile species not only from commercial development like logging and oil and gas drilling, but also from the multiple threats posed by climate change. Specifically, the rules would complicate the task of getting species listed as threatened or endangered in the first place, and would reduce the habitat judged necessary for their survival.
These changes should come as no surprise to anyone who has paid the least bit of attention to this administration’s environmental and energy policies over the past two years. They are fully consistent with a broader pattern of regulatory moves aimed at reducing costs and burdens on business. They are in keeping as well with a host of other actions supporting President Trump’s policy of “energy dominance,” including but not limited to a pell-mell rush to open the Arctic National Wildlife Refuge to oil exploration, the evisceration of two national monuments in Utah to make way for drilling and mining, and clawing back nine million acres in several oil-rich Western states that the Obama administration had set aside to protect the imperiled sage grouse.
The announcement of the new rules was accompanied by predictably pious boilerplate from David Bernhardt, the interior secretary and a former oil lobbyist, to the effect that the changes were necessary to modernize and simplify the law and make it more transparent. Neither he nor the dozen or so Republicans from Western states recruited to sing his praises mentioned anywhere in their public statements the act’s popularity with the general public and its rich bipartisan pedigree. Strongly endorsed by President Richard Nixon, and approved by huge margins in both chambers of Congress (the House vote was an astounding 355 to 4), the act would stand zero chance of passage in today’s poisoned political climate. The moderate Republicans who thrived in Congress in Nixon’s day are themselves an endangered species, if not, for all practical purposes, extinct.
Nor was there any mention of the act’s striking successes, the species brought back from the edge, including, among other creatures small and great, the bald eagle, the peregrine falcon, the American alligator and the gray wolf. Instead, we heard the tired and irrelevant complaint that, of the more than 1,650 species listed as threatened or endangered, only 47 have been delisted because their populations have rebounded to fully sustainable levels. But that’s a nutty way of measuring success; species once hurtling toward extinction can hardly be expected to rebuild healthy populations overnight. And only a relative handful have actually gone to their doom, while many are deemed stable and on the road to recovery.
There are several shortcomings to the Trump administration’s new rules, but two stand out. The first would allow regulators for the first time to calculate economic costs when deciding whether a species warrants protection — for instance, estimating lost revenue from logging operations prohibited in habitat set aside for species. Under current law, listing decisions must be made solely on the basis of science “without reference to possible economic or other impacts.” An administration official insisted that future listings would still be based solely on science and that economic studies would be for informational purposes only.
But let’s not be naïve. First, there’s the mind-set of senior officials; from Day 1, this administration has shown disregard bordering on contempt for science when making important decisions about the environment. Economic information could covertly influence regulators who are already suspicious of science, from Mr. Bernhardt on down, and really didn’t much like the Endangered Species Act to begin with. It could also be used to tilt public opinion against a controversial listing.
The second major shortcoming in the new rules is their failure to squarely confront the problem of climate change. Indeed, the rule makers appear to have gone to some lengths to dodge the problem. The law defines two categories of at-risk species — threatened and endangered. Currently, a threatened species is one “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” “Foreseeable future” is not defined. The new rules do so, in some detail and in ways that critics believe will invite the government to discount the future effects of global warming.
Under the new rules, “foreseeable future” extends only as far as officials can “reasonably determine” that the future threats are “probable.” This leaves substantial room to dismiss the far-off threats of climate change as excessively speculative. It might have made it difficult, for instance, back in 2008, to designate the polar bear as a threatened species and, two years later, set aside more than 187,000 square miles of sea ice and barrier islands in Alaska as critical habit and thus off limits to development. At the time, officials relied on climate models that extended many decades into the future, which under the new rules might not have been acceptable.
The ability of species to adapt to global warming could be further undermined by new language addressing critical habitat, the land that can be kept off limits to development to help species recover. Current rules define critical habitat as not only the land where the threatened or endangered species live but also the land they once occupied and land they might need in the future. As the world warms, species will move, their ranges will shift and that unoccupied land could become important to their survival. But that land gets short shrift in the new rules, and it could now be opened for mining, timbering, oil drilling or other forms of exploitation.
For all of Mr. Bernhardt’s talk of transparency and efficiency, some of the new rules seemed deliberately designed to throw sand in the machinery (which may, of course, be the whole point). Under present practice, known as the “blanket section 4(d) rule,” the United States Fish and Wildlife Service, which administers the law, automatically extends many of the same protections to threatened species as it does to endangered ones. The point of the act is to keep species from becoming endangered or, even worse, blinking out.
This rule is now history, replaced by a system in which the agency will, case by case, develop species-specific protection plans. This could be a cumbersome and time-consuming task, of little benefit to the species awaiting help. Mr. Bernhardt’s team has already slowed the listing process. The Obama administration added an average of 49 species a year to the threatened and endangered lists. The Trump administration has added no more than 11 in one year. In 2019, it has added only the trispot darter, a type of fish from the Southeast listed as threatened in late January.
Like other Trump environmental rule changes and rollbacks, this one will undoubtedly face challenges. Environmentally inclined senators have been talking about invoking congressional oversight procedures to overturn the rules, which is possible if they move quickly enough, but unlikely. The best hope lies with the courts, which in several cases — notably Mr. Trump’s efforts to roll back Obama-era protections against drilling in Arctic waters — have not been at all reluctant to slam on the brakes, and in general have been a bulwark against Trumpian overreach. The California attorney general, Xavier Becerra, and his Massachusetts counterpart, Maura Healey, citing findings from the alarming United Nations extinctions study in May, have said they will take the administration to court for what they believe are multiple violations of the law’s basic purpose.
We hope they, and the environmental groups that join them, will persist. Ms. Healey likens the new rules to “a plan from a cartoon villain,” ignoring everything we know about biodiversity, its uses and its alarming decline in pursuit of Mr. Trump’s reckless energy agenda. At issue is the full expression of one of the country’s noblest and most ambitious environmental laws.