Endangered Species Act reforms will benefit wildlife and people

The sweeping revisions to the 46-year-old Endangered Species Act (ESA) announced Tuesday by the Trump administration provide much-needed fixes to a cumbersome, convoluted statute that has ill-served both the wildlife it is meant to protect and the rural communities caught up in its enforcement provisions.

Farmers, ranchers, loggers, miners and others unfortunate enough to harbor threatened or endangered species on their property find themselves in the ESA’s straightjacket of potentially ruinous land-use restrictions. It’s a Kafkaesque world in which landowners are tied up in endless litigation and threatened with steep fines and imprisonment for the very environmental stewardship that attracted species to their land in the first place.

Most of the lawmakers who voted for the ESA in 1973 no doubt thought they were doing something that would save the bald eagle, California condor, or some other national treasure from extinction. Little did they realize that, over the decades, the law would become a land-use tool adroitly applied by environmental groups to shut down any commercial activity they disliked.  

And for all the disruption the ESA has caused, most of it in the rural West, as a legal instrument to recover species, it has been a complete dud. Of the 1,661 species listed as threatened or endangered, only 3 percent have been recovered — paltry even for a government program.

Now, the Trump administration is taking some long overdue steps to drag the ESA, kicking and screaming, into the 21st century.

Specifically, the administration stipulates that the criteria used in determining whether a species should be removed from the endangered species list or reclassified from endangered to threatened, or vice versa, must be the same as those used in adding a species to the list. This should keep officials at the Interior Department’s Fish and Wildlife Service (FWS) and the Commerce Department’s National Marine Fisheries Service (NMFS) from arbitrarily adding criteria that keep species on the ESA list long after they have recovered.

Climate change will still be considered in future listing decisions. But the role of notoriously unreliable climate models that forecast temperatures far into the future will be reduced. From now on, officials must make such determinations only into what is vaguely referred to as “the foreseeable future.”

Critical habitat

Addressing one of the most crucial provisions of the ESA, the new regulations reinstate the requirement that the areas where threatened or endangered species are present at the time of listing be evaluated first before unoccupied areas are considered. The unoccupied habitat must also, at the time of designation, contain physical or biological features essential to the species’ conservation. These steps should reduce the potential regulatory burdens that result from designations of critical habitat where species are not present in an area.

A recent case in Louisiana shows how important this is. The FWS’s designation several years ago of 1,544 acres of forested land in St. Tammany Parish as critical habitat for the endangered dusky gopher frog shows how the ESA, and the people caught up in it, can be abused. The Louisiana land in question contains no dusky gopher frogs; in fact, the only such frogs known to exist are in neighboring Mississippi. But because the Louisiana land, after it had undergone substantial modification, could be a future home to the frog, FWS went ahead with the designation, with land-use restrictions that substantially devalued the rural property.

The Trump administration’s new regulations on critical habitat are buttressed by a November 2018 Supreme Court decision, Weyerhaeuser Co. v. United States Fish and Wildlife Service, that arose from the dispute over the dusky gopher frog. By an 8-0 margin, the justices ruled there are limits to the government’s authority to determine what can be designated as critical habitat.     

Incentives to cooperate

Even though the ESA clearly stipulated that threatened and endangered species are to be regulated differently, the FWS unilaterally scraped that provision and has been treating the two categories the same way for years. The NMFS never adopted this policy. Now, the Trump administration has put the two agencies’ practices in alignment by reinstating the different regulatory treatment of threatened and endangered species.  

“By creating a clear regulatory distinction between threatened and endangered species, we are also encouraging partners to invest in conservation that has the potential to improve a species’ status helping us toward our ultimate goal: recovery,” said then-FWS Deputy Director Greg Sheehan last summer when the regulations were first proposed.

And that’s the point. Create a framework within which rural communities have incentives to cooperate in the recovery of endangered plants and animals. The administration’s initiatives are an important step in that direction.

Bonner R. Cohen, Ph.D., is a senior fellow at the conservative National Center for Public Policy Research, where he writes on environmental and energy-related issues. He is the author of “The Green Wave: Environmentalism and its Consequences” (2006).