Trump Administration Announces New Rules That May Weaken Endangered Species Act

In efforts to conserve endangered and threatened species, Richard Nixon signed the Endangered Species Act of 1973 into law.  The Act establishes various programs to aid threatened species of fish, wildlife, and plants in the United States.  Subsequently, the Act has saved over two hundred species from extinction, including “the peregrine falcon, the humpback whale, the Tennessee purple coneflower and the Florida manatee.”  Under the Act, authority is given to the Secretary of Commerce to determine whether a species should be considered endangered or threatened.  The criteria examined while making this decision are as follows: “(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.”  Once added to the endangered species list, any changes would require further approval from the Secretary of the Inferior.

On August 12, 2019, the Trump administration announced new rules that would alter how the Endangered Species Act would be applied.  One major change is how easily an endangered species can be removed from the endangered species list.  Further, economic assessments may be considered as a factor when determining whether a certain species should be added to the list.  For example, regulators may estimate the amount of revenue lost “from a prohibition on logging in a critical habitat — when deciding whether a species warrants protection.”  These new rules will be implemented in September 2019.

Republicans suggest that the new rules will diminish unnecessary constraints and allow for economic growth.  To add, proponents of the rules see it as an opportunity for expansion; new mining, oil, and gas drilling may take place in areas where protected species are located. David Bernhardt, the Secretary of the Inferior, claims this motion will merely update the Act and allow for clarity in its purpose and standards.

On the other hand, environmental groups and Democrats in Congress have shown resistance towards the proposal.  While challenging the courts, the Democrats have considered “invoking Congressional Review Act, a 1996 law that gives Congress broad authority to invalidate rules established by federal agencies, to block the changes.”

There have also been concerns regarding the regulators’ ability to assess the effects of climate change because the aftermath is not instant.  Among these new rules, some terms have been refined.  In the current Act, it has been emphasized that “threatened designation requires the government to analyze whether a species is likely to become endangered within the foreseeable future.”  The new rules redefine “foreseeable” as “only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.”  As a result, some are concerned that factors, such as extreme heat, drought, or rising sea levels may be disregarded because they do not provide immediate threats. 

The California Environmental Attorneys at Bick Law LLP will continue to monitor changes made to the Endangered Species Act and the implementation of these new rules.

Our Areas of