This post was originally published on Legal Planet. Reprinted with permission.
The world’s ecosystems have been subject to an increasingly dangerous cocktail of stressors from land and ocean over-development, invasive species, and pollution. But rather than stem the tide of these harms, the Trump administration has resurrected several regulatory changes to the Endangered Species Act designed to stifle species’ protections and provide land developers even more power to destroy invaluable ecosystems.
Unlawful Changes to the Endangered Species Act
These proposed amendments are as irresponsible as they are illegal. To start, they allow the U.S. Fish and Wildlife Service to consider economic impacts in decisions about whether a species should be listed as endangered. That may sound reasonable at first, but the law is clear — it is inappropriate to consider economic factors in a scientific determination. Agency regulations have long underscored that listing decisions must be made “without reference to possible economic or other impacts” since Congress passed the Endangered Species Act in 1973.
The proposed changes also authorize the Fish and Wildlife Service to consider national security and economic factors when it determines if a territory is critical for the survival of a listed species — the first time it would be allowed to do so. This is illegal: the Endangered Species Act plainly directs the Fish and Wildlife Service to decide what species are in danger of extinction and to designate habitats critical to their survival. Congress understood even 52 years ago that those are biological questions, for which economic costs are irrelevant.
The proposed changes also eliminate default protections for species newly listed as threatened (current examples are the grizzly bear or monarch butterfly). That would mean that such species get zero protection under federal legislation unless the Fish and Wildlife Service decides to adopt protections applicable only to that species. And even then, the protections would usually be weaker than those for endangered species.
These proposed changes exacerbate other recent proposals that will further imperil our nation’s fragile ecosystems. Under the Endangered Species Act, it is illegal to “harm” a protected species. Until now, the definition of such harm, which the U.S. Supreme Court has upheld, includes any significant habitat modification that kills or injures wildlife.
A pending regulatory proposal would upend that definition and hold that many habitat modifications that kill or injure a listed species aren’t harmful. Needless to say, this change threatens to cause widespread, long-lasting, detrimental impacts to imperiled species across the country.
Proposals Harm Biodiversity, the Government, and the Economy
Collectively, these actions lay bare that the Trump administration doesn’t care about species conservation. In fact, the most recent proposals are largely the same narrow-minded ones offered the last time Trump was in the White House.
At the very least, the proposals are a waste of public money. The changes at a minimum will be tangled up in litigation for years. Courts will also likely overturn them, as they did the last time they were proposed.
But more alarmingly, the proposals show that the Trump administration is gambling with future generations of countless plants, animals and, yes, humanity, for the short-term gain of a few real estate developers.
Nor do these changes reflect what the American public wants. Since its enactment in 1973, surveys have shown consistent, unyielding public support for the Endangered Species Act. Such approval is not surprising. Every year the legislation supports over $1 trillion in ecological, economic, and other benefits that dwarf its costs.
And while the legislation is far from perfect, it has saved 99 percent of species protected by the law from extinction — some 227 species that include gray whales and peregrine falcons. Nearly half of at-risk species have stabilized or improved under the law’s protection. Another 60 have recovered enough to be de-listed. In short, even though the law is shamefully underfunded, it has been an enormous success.
Undoubtedly, the ESA could be more effective at promoting conservation. What is needed to improve it is largely common sense. Protect sensitive habitat. Help vulnerable species and ecosystems contend with conservation threats and adapt to changing conditions. Adequately fund starved agencies to ensure the law and other conservation laws are implemented, enforced, and updated to deal with new harms like global climate change.
But the Trump administration is not interested in safeguarding virtually anything of collective importance — our dwindling natural resources, our immediate economic prosperity, or the ecological heritage that the overwhelming majority of Americans believe we owe future generations.
