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from the desk of dan ashe

Reflections on the Endangered Species Act

By Dan Ashe
min read

Last week, on August 12, 2019, the Trump administration finalized regulations that will alter the implementation of the Endangered Species Act (ESA) – not for the better. The two implementing agencies – U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) – adopted these rules despite receiving more than 871,000 public comments in opposition, including those from the Association of Zoos and Aquariums.

At the core of these changes are foundational shifts in policy that will hinder the already challenging prospects of species conservation.

No blanket protection of threatened species.  Precaution is the ESA’s guiding principle.  The law requires protections for endangered species but leaves to the agencies’ discretion on how to craft regulations necessary to protect individual threatened species.  But, for nearly 40 years, the FWS has followed a precautionary policy to automatically extend the law’s full protection to all threatened species.  On a case-by-case basis, the agency can, and often has, adopted a species-specific regulation to sculpt protections needed for that species while preventing unintended or unnecessary regulatory burdens.

The Trump Administration has now flipped this from precaution to presumption.  Rather than automatically provide protections to threatened species, they presume that threatened species need no protections – zip, zilch, zero. If FWS deems protections are necessary, they would now write a species-specific rule to add protections. The keyword being “add.”

Species conservation is predominately dependent on modifying human behavior. The ESA, as originally written, protected species as comprehensively as possible, while allowing agencies to relieve restrictions for threatened species when appropriate. A case-in-point, when I was FWS Director, involved the northern long-eared bat. This species ranges widely throughout North American forests, and it is being devastated by the deadly white-nose syndrome.  In this case, as in many others, FWS wrote a species-specific rule relaxing the automatic ESA protections, focusing protections on the bat’s critical and vulnerable life stages – hibernation and breeding –  , and relieving general restrictions on industries like timber harvest, energy development, and road construction that were not threats to this species outside of known hibernation and breeding sites.

So, put yourself in the FWS Director’s seat.  Do you think it is easier to write a rule that relaxes or adds protections? This new Trump Administration regulation will make endangered species conservation harder. And it’s intentional. They know it will make it harder. We and many others told them in our comments.

Nix to science-driven decisions. A bedrock of ESA implementation, since the law’s passage in 1973, has been listing decisions are driven by science, and science only. The agencies look at a species’ status and the threats facing it, and “solely on the basis of the best scientific and commercial data available,” determine if it is endangered or threatened or not. This has been a clear line. These new regulations blur that line, opening up the potential to consider possible economic impacts when listing a species. This is a radical departure, at odds with the spirit and the letter of the law. Whether a species is threatened with extinction is a biological question. The economic or social or national security implications of a listing are irrelevant to that initial determination, and their consideration will complicate, delay, and undermine ESA listing decisions. Species that need protections will now get them later rather than sooner, or not at all.  And you all understand the crucial role of time in efforts to save species. It is, too often, a race against the clock.

Again, this regulatory change makes the job of species conservation harder.

Future shock.  Listing and conserving species requires making predictions, which Mark Twain reminded us is difficult, “particularly about the future.” But in listing a species as threatened, the law requires the agencies to determine that it is “likely to become endangered within the foreseeable future,” a term that the law left undefined.  Now, the administration has defined it, requiring that both the threats to the species and the species’ responses to those threats are “likely.” This will make it more difficult to list species as threatened due to “speculative” causes like climate change. So, as our climate is changing ever rapidly, our efforts to protect the species affected will be increasingly unforeseeable.

The “far-far-away” exclusion. If a federal “action agency,” like the Federal Energy Regulatory Commission (FERC), is taking actions that may affect a listed species, the ESA says that they must consult with the FWS or NMFS to hopefully avoid unnecessary effects. In that consultation process, the Administration has decided that federal agencies cannot be burdened to consider the effects of their actions on listed species if they will take place far, far away in space and time.  Federal agencies may disregard consequences of a proposed action because they are remote in time or distant from the location of the proposed action, or are reached through a lengthy causal chain.  For instance, say a coal-fired power plant needs a FERC permit: the power plant will emit carbon dioxide; which will contribute to warming the atmosphere and ocean; which will cause sea ice to melt; which means polar bears will catch fewer seals; which means their body condition will decline; which means their survival and reproductive rates will decline; which means that the population will decline. That would be a lengthy causal chain, and we know federal agency scientists cannot possibly be expected to figure out lengthy causal chains; let alone those in coal, oil or gas industries.

So, here we are.  As over 180 nations are gathered, in Geneva, for world’s most important meeting to consider trade in endangered and threatened species – the CITES Conference of Parties; in the wake of pronouncements that July 2019 was the hottest month in the recorded human history; in the shadow of the recent U.N. report finding that up to 1 million species are at risk of extinction, many within just a few decades; and at a moment when our planet is facing an extinction crisis, our government has published regulations making species conservation harder, take longer, more costly in time and budgets, and less likely to address threats until they reach irreversible crisis levels.

These new regulations are disturbing because of what they do to make species conservation harder and less likely to succeed. They are disappointing because they convey neither sense of urgency nor responsibility. The Administration’s press release uses sterile, dispassionate terms like efficiency, effectiveness, clarity, consistency, and transparency as if species conservation was an audit exercise. And that is truly tragic; these terms attempt to hide the damage these new regulations do to species conservation. At a time when the world needs U.S. leadership and action, more than ever, these new regulations have our nation in full retreat.

Let’s hope and work for better.


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