By Jonathan Hahn, Sierra Club
At a time when the world’s leading scientists warn that human-caused global warming is precipitating a wildlife extinction crisis, the Trump administration has announced the most sweeping rollback of protections for endangered species in a generation.
Trump’s newly finalized regulations will significantly weaken the process for listing and enforcing Endangered Species Act protections and inject economic and potentially political considerations into that process where none had existed before. They will bring to an end automatic protections for threatened species, make it easier to delist species (by raising the bar for what evidence is required to show that a species is threatened and endangered), and limit the ways in which climate change can be factored into listing decisions in “the foreseeable future”—essentially removing climate change as a consideration just as the global climate crisis is accelerating.
“This is probably the biggest attack on how the Endangered Species Act works since its implementation,” Brett Hartl, the government affairs director for the Center for Biological Diversity, told Sierra. “We’ve never seen any rollback attempt go so far. No past administration, Republican or Democrat, has tried to do anything as substantial as this. It will undermine the recovery of just about every endangered species on the list. It will make it much harder for future species to get any protection moving forward.”
The Endangered Species Act was signed into law by Richard Nixon in 1973. Since then, it has been credited for saving more than 99 percent of the animals, plants, and insects that have been listed as endangered. The law currently protects more than 1,600 species in the United States.
In May, the United Nations made clear that its wildlife protections are more important than ever. Its Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) released a sweeping 1500-page report about how human development of the planet’s natural resources has put one million plant and animal species at risk of extinction, with ecosystems all over the world—ecosystems on which human societies fundamentally depend—at dire risk. Last week, the Intergovernmental Panel on Climate Change (IPCC) also released a report making clear that anthropogenic climate change is threatening the world’s food supply as humans exploit the world’s land and water resources at “unprecedented rates.”
Ignoring the role of climate change in the survival of threatened wildlife has a set of clear winners—not the endangered species, but the extractive and polluting industries such as oil and natural gas drilling, mining, and logging that are responsible for catalyzing the climate crisis in the first place.
“Not a single endangered species benefits,” says Hartl. “Not a single species will improve as a result of these changes. Who benefits? Every benefactor of the Trump administration swamp. All of [Interior Secretary] David Bernhardt’s former clients will benefit. They all get something from this: the pesticide industry, oil and gas, coal, uranium, every single special interest benefits.”
The finalized rules follow through on the administration’s initial proposal, announced last year. One of the most significant changes eliminates automatic protections for threatened species. For years, the Fish and Wildlife and National Marine Fishery services have automatically applied the same protections to a newly-designated “threatened” species that are given to ones considered endangered. According to the new rules, for future listings the agencies will only have to provide protections for threatened species when they choose to do so through a species-specific rule. There is no provision for a timing requirement to do so. Threatened species will be left to slide toward extinction without protection until the service gets around to making a specific rule for them.
Just as significantly, according to the new rules, ESA-listing agencies can take into account the economic impacts of listing decisions. Currently, when a species is listed as endangered, agencies are not supposed to consider economic impacts, basing the listing decision solely on the best available science. While there are ESA processes that consider economics, it is prohibited under the current enforcement regime to consider economics at the listing stage. Whether a species is going extinct is a scientific question, not an economic one.
“The Trump administration knows that economic factors will undermine listings significantly because of the pressure that will be brought to bear if they admit how much a listing will purportedly cost,” Hartl says. “So they are looking to inject politics into the listing process.”
The new rules also change how listing agencies consult with each other. Section 7 of the ESA requires that federal agencies consider whether funding or other activities of certain projects might jeopardize the existence of endangered or threatened species. Agencies are required to consult to make sure that their activities don’t harm endangered species and that they fully mitigate the damage if they do.
The new regulations narrow the criteria by which an agency will be required to undergo those consultations. They will also make it more difficult to designate critical habitat, particularly unoccupied critical habitat, for endangered species, allowing agencies to forgo the designation under certain circumstances, such as disease.
In September 2018, a coalition of more than 30 groups, including Defenders of Wildlife, the Endangered Species Coalition, and the Sierra Club, formally submitted nearly 1 million public comments opposing the proposed changes. Ten states and the District of Columbia have all stated their opposition.
Legal challenges are all but certain. Immediately following the announcement, California and Massachusetts announced they will go to court to block the new changes from going into effect, and the nation’s largest environmental advocacy groups—including the Sierra Club—vowed to challenge the rules in court. “At a time when more and more species are being placed at risk of extinction due to climate change, these unlawful rule changes seek to block or gut ESA protections for such species,” Karimah Schoenhut, a staff attorney with the Sierra Club’s Environmental Law Program, told Sierra. “This is a shameful attempt to circumvent the ESA instead of implementing its requirements.”
But while the ESA rollback may not survive in court, the legal process could take years to adjudicate, during which time the Trump administration could greenlight polluting industries’ projects at the expense of endangered species.
“We’re losing species faster than ever before in human history,” Jamie Rappaport Clark, the president and CEO of Defenders of Wildlife, said at a press conference reacting to the announcement. “There’s no doubt about it: Humans are the cause. One could argue that a rational response to these kinds of warnings would be to find ways to strengthen our national programs for protecting endangered species, starting with the Endangered Species Act. But Secretary Bernhardt and the Trump administration are doing exactly the opposite.”