Reactions to the Aug. 12 rollout of revisions to the Endangered Species Act ranged predictably from an oil and gas industry chorus of attaboys to “We’ll see the Trump administration in court.”
For the most part, though, the likely impact of the changes introduced by the U.S. Department of the Interior will be muted.
“Although the new regulations will certainly be litigated, many of the changes are unlikely to have much effect on the day-to-day application of the Endangered Species Act (ESA) on most projects and proposals,” said Michael Drysdale, Minneapolis-based attorney with Dorsey & Whitney LLP, in an email.
The most significant practical revision, he said, are changes to the protections given to threatened species in future listings. Threatened species have, by default, received the same protections as endangered species. Under the proposed revision to section 4, the department will attempt to develop “species-specific” rules of the time a species becomes listed as threatened.
“This will give regulators more flexibility, and may introduce considerably more variation into the regulation of threatened species,” Drysdale said.
More variation into regulation. That’s exactly what angers opponents.
“I can promise you that there is nothing in these new regulations that helps protect threatened and endangered species,” said Kristen Boyles, an attorney for the environmental organization Earthjustice, on the organization’s website.
In announcing the changes, Commerce Secretary Wilbur Ross cited President Donald Trump’s mandate to streamline the regulatory process. Along those lines, the U.S. Fish and Wildlife Service finalized a separate revision rescinding its “blanket rule” under section 4(d) of the ESA. The rule had automatically given threatened species the same protections as endangered species unless otherwise specified. The National Marine Fisheries Service has never employed such a blanket rule, so the new regulations align the two agencies.
“The best way to uphold the Endangered Species Act is to do everything we can to ensure it remains effective in achieving its ultimate goal—recovery of our rarest species,” said Interior Secretary David Bernhardt in his announcement. “The act’s effectiveness rests on clear, consistent and efficient implementation.”
The American Petroleum Institute (API) welcomed the action, stressing that simplifying the regulatory scheme will help to protect habitats and endangered species. It also took a somewhat defensive stance against critics’ accusations that the fossil fuel industry has no regard for environmental protection.
“Effective species and habitat conservation practices are front and center for the oil and natural gas industry and its employees,” said Erik Milito, API vice president of upstream and industry operations, in a statement. “Like many Americans, we love our country’s open spaces too, and understand that protecting species and their habitats are a necessary aspect of safe and responsible operations to develop the nation’s oil and natural gas resources.”
Kathleen Sgamma, president of the Western Energy Alliance, was more blunt.
“For far too long, the act has been weaponized to stop the production of food, fuel, and fiber that Americans need every day while turning a blind eye to how red tape actually inhibits the recovery of species,” she said in a statement. “This administration has the fortitude to move forward with commonsense rules that follow the law while improving species protection, despite the hyperbolic rhetoric.”
In addition to species designation, Drysdale noted an important change to the process for designation of critical habitat, especially those that are not presently occupied by the species.
“Under the revisions, presently unoccupied habitat will be less likely to be designated as critical habitat for species, reducing the impact on proposed projects,” he said.
Pushback can be expected to be vigorous. In a statement, Sen. Tom Udall (D-N.M.) warned of resorting to the Congressional Review Act, which allows Congress to invalidate rules made by federal agencies.
“Allowing cost calculations of big polluters to determine whether a species deserves protection—while denying climate science and rolling back protections for habitat—is the absolute wrong approach at a time when we are in the middle of a human-caused sixth mass extinction,” he said.
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