Too much of the Biden administration’s regulatory effort remains focused on reversing Trump administration environmental rulemakings. This defensive unwinding of rollbacks preoccupies progressive reformers at the expense of implementing a broader vision. A recent proposed Endangered Species Act (ESA) rule to restore a “blanket rule” for conserving newly listed threatened species illustrates how the Interior Department can get trapped the anti-regulatory framing of the prior administration.
The ESA provides parallel paths for conservation of species both endangered (on the brink of extinction) and threatened (likely to become endangered). Species may be listed for protection under the ESA only through notice-and-comment rulemaking. Threatened species typically are listed while their populations have greater resilience to disturbance than the more imperiled endangered species. Greater resilience permits trade-offs between economic activity and habitat conservation.
The ESA prohibits harm to endangered species, which the implementing agencies have long defined as including significant habitat degradation that actually injures individual animals. The ESA grants agency discretion in whether to apply habitat harms or other prohibitions to threatened species. But the ESA limits this discretion to what is “necessary and advisable to provide for the conservation of such species.” The ESA defines this “conservation criterion” as providing for species recovery.
Until 2019, the Interior Department, though the U.S. Fish & Wildlife Service (FWS), implemented this flexibility through a “blanket rule” that automatically applied the statutory prohibitions, especially the harm proscription, to threatened species upon listing. However, either at or after listing, the FWS could promulgate a species-specific, special rule tailoring ESA prohibitions to the distinct conservation needs of the threatened species.
Beginning with the 2008 polar bear listing, all animals listed because of climatic disruptions to habitat received threatened status. That raises the stakes for agency discretion to craft special rules because global warming accelerates habitat loss and exacerbates other stressors on species viability.
A 2019 rule reversed that longstanding policy. Under the Trump rule, threatened animals would not be protected from harm unless the listing included a special application of a prohibition. The 2019 approach created difficulties explained in the recent proposal to restore the “blanket rule.” Requiring the Service to develop species-specific, special rules at the time of listing risks encoding hastily considered exceptions before scientists have identified recovery tools. It might also reward delay tactics in negotiating habitat plans with landowners who benefit from a listing with no species-specific rule. In short, it violated the ESA’s precautionary principle.
Recent research reveals ample manifestations of collaborative conservation in threatened species special exceptions under the blanket rule. States and municipalities typically exercise land-use regulation, and private landowners control habitat-modifying activities. So, collaboration is necessary to conserve habitat.
The ESA’s flexibility for tailoring statutory prohibitions to the recovery needs of threatened species spurred innovative exceptions under the blanket rule — especially in substituting practice-based standards for the statutory, outcome- (i.e., harm-) based standards. Practice-based standards provide greater clarity for what activities are excluded from legal liability. Detecting and enforcing the harm prohibition is notoriously difficult. So collaborative conservation may prompt more recovery with less stringent (but more precisely targeted) prohibitions.
Discretion is necessary to tailor rules to the diverse recovery needs of threatened animals. But expansive discretion makes thwarts agency officials’ ability to say “no” to economic interests advocating exceptions that fail to advance recovery.
Negotiating and tailoring better threatened species rules will benefit from restoring the “blanket rule.” But there is so much more the Biden administration should do. Here are three ideas to strengthen conservation in the final rule, which I note in recent public comments I filed on the proposed rule.
- First, the Fish and Wildlife Service should establish a backstop by defining the “conservation criterion” as a “net conservation benefit.” This standard would continue to support flexible trade-offs. The collaborative special exceptions typically allow some otherwise prohibited take in exchange for assurances that important habitat will be maintained or restored. Activities that take individual organisms but benefit recovery, cause trivial population impacts, or are conservation neutral easily qualify for special exceptions. But recent research identifies potential conservation shortcomings in some rules that failed to demonstrate net conservation benefit.
- Second, the rule should incorporate sequential mitigation to ensure that special exceptions avoid harms, then minimize the harms that cannot be avoided, and finally mitigate whatever harms do occur from habitat-modifying activities. Sequential mitigation is currently practiced in both ESA and Clean Water Act permit programs.
- Third, the rule should structure future special exceptions for adaptive management. Adaptive management will assist recovery through iterative adjustments as the Services monitor and learn from experiments with special exceptions. It is especially important in the typical situation where great uncertainty surrounds both the conditions necessary for recovery and the efficacy of actions and programs to attain those conditions. Climate change multiplies those uncertainties.
Adaptive management requires clear objectives against which to assess the results of conservation actions. Then, the Services can respond to results through iterative monitoring and adjustment. The more effective adaptive approaches specify clear triggers to indicate when experiments need to be extended, modified, or terminated. But even where budget constraints preclude true experimentation and frequent fine-tuning, some adaptive planning is better than none.
ESA recovery plans already incorporate metrics to evaluate success. Therefore, the blanket rule should insist on triggers to reevaluate special exceptions when a recovery plan is developed.
A net conservation benefit criterion, sequential mitigation, and adaptive management are neither novel concepts nor new suggestions. The Center for Progressive Reform has long advocated for their incorporation into agency programs.
The proposed rule already includes one salutary new element that extends many state wildlife agency ESA exceptions to tribal authorities. But it fails to further imagine a better future for species recovery. Merely undoing the damage from the Trump administration is not enough.
There remains time for the Biden administration to turn away from its blinkered approach to regulatory reform. Programmatic rulemakings offer rare opportunities to improve conservation outcomes. The Biden administration needs to think more urgently about its own, affirmative legacy. The Interior Department can lead the way by revising the proposed rule to incorporate these innovations to advance biodiversity recovery.
