The Endangered Species Act is the cornerstone of the country’s regulatory approach to conservation and arguably one of the most famous pieces of legislation in recent American history. Since 1973 it has protected some of the country’s most iconic animals, including the bald eagle. 99 percent of species placed on the endangered species list have been saved from extinction.
Now, however, the Interior Department and the Commerce Department are proposing regulatory changes that critics say pose a threat to the effectivenes of the Endangered Species Act (ESA) and compromise its most cherished principles.
The ESA has not been meaningfully changed since its passage in 1973, a fact the government cited in justifying its proposed changes.
The ESA has long been a source of tension, espcially in the western parts of the country. Critics have said that the ESA, as written, gives the government too much power to broadly regulate the use of valuable land in the name of protecting animal species.
While the intent of the administration’s proposed changes remain up for debate, there’s agreement among both ESA critics and conservationists that the changes are profoundly meaningful.
Changing How Determinations Are Made
One of the most foundational changes proposed by the government is to how endangered and threatened species determinations will be made.
The ESA defines a species as endangered if it is in “danger of extinction throughout all or a significant portion of its range.” Currently, the secretaries of the Interior and Commerce (who share responsibility for implementing the ESA) are instructed to make endangered species determinations “without reference to possible economic or other impacts of such determinations.” Essentially, endangered species determinations should be made based on biological data, not concern about the economic impact of the determination.
The government is proposing to remove that “without reference” clause, claiming that it will bring that part of the ESA into better compliance with the rest of the law. According to the government’s proposed changes, decisions will continue to be made based entirely on biological data, but there may be situations in which disclosing the economic impact of these determinations to the public may be appropriate.
In addition, Commerce and Interior are proposing a change to how threatened species determinations are made. A “threatened species” is essentially one step down from an endangered species – under the ESA, a species is threatened if it is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”
The proposed changes would define “foreseeable future” in a way that will, in the words of the government’s summary of the proposal, “make it clear that it extends only as far as they can reasonably determine that both the future threats and the species’ response to those threats are probable.”
This seemingly semantic clarification could have huge impacts on how determinations are made, especially for those species potentially threatened by a climate change.
Those aren’t the only proposed changes to the threatened species program. The government is also looking to change how the departments of Commerce and Interior protect threatened species.
Currently, when the government determines that a species is threatened, it will adopt protections that are essentially identical to those of endangered species. Under the proposed changes, the government would instead tailor protections specifically for each species instead of mirroring those of endangered species.
The Bigger Picture
Because these are proposed regulatory rule changes, the proposal does not need approval by Congress. Under federal law, new rules must go through a 60-day public comment period, but there’s no expectation that public comment will meaningfully change any of the proposals. As a result, the new rules are likely to go into effect in late September.
These proposed changes are consistent with administration efforts to alter countless environmental regulations to make them friendlier to industry and other business interests.
In a broader sense, the future of the Endangered Species Act is murky. The government’s proposed changes reflect many of the priorities of both industry groups and conservative Republican critics who question the effectiveness and the legitimacy of the ESA. Republicans on the House Natural Resources Committee have already approved legislation that would force the government to consider the economic impact of an endangered species determination and to defer to data collected by the states, instead of by federal scientists.
Those bills have not yet come before the full House of Representative, and they’re unlikely to pass both houses of Congress this late in an election year. But this doesn’t mean the bills are meaningless – Rep. Bob Bishop (R-Utah), chairman of the House Natural Resources Committee, has said he “would love to invalidate” the ESA, and that’s far from a fringe position in the Republican Party.
For the foreseeable future, battles over the ESA will likely be waged most prominently in a court system that the President has been steadily populating with conservative judges hostile to environmental regulation. So while the Endangered Species Act might survive, its impact could be blunted.