The Trump administration, on August 12, 2019, announced changes to the Endangered Species Act (ESA). These changes affect what species receive ESA protections, the designation of critical habitats, and the amount of protection afforded to threatened species.
Designation of Species as Endangered
Historically, section 4 the ESA required that the decisions as to which species were to be listed as endangered were based solely on the best available science “without reference to possible economic or other impacts of such determination.” The new changes remove this language and allow for economic impacts to be considered. In a press release from the Department of Interior, the Fish and Wildlife Service maintains that economic impacts will not play any role in determining whether to list a species and only be used to provide the public with more information during the listing process.
Designation of Critical Habitats
Previously, the ESA provided that occupied and unoccupied habitat be considered for designation as critical habitat at the same time. Under the new rules, critical habitat will only be designated if the species is currently occupying the area. This is in line with the decision of the Supreme Court in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service which held that an area was only eligible for critical habitat designation if it is habitat for a listed species. The new rules better coincide with the plaintiff’s argument that an area should not be designated critical habitat unless a listed species is currently occupying it. While the new rules still allow for an area not currently occupied by a listed species to be designated critical habitat, such a designation can only occur if the area occupied by the species is inadequate to ensure the species’ survival.
Amount of Protection Afforded to Threatened Species
One of the biggest changes will impact whether a species may be considered “threatened” under the ESA. Prior to the recent changes, a species was considered threatened if it was at risk of becoming endangered in the “foreseeable future.” The changes would only allow for consideration of future factors that are “likely” to occur as opposed to just foreseeable. Critics fear that this will make it harder for climate change to be considered as a factor when listing species.
Additionally, the new changes repeal the “blanket 4(d)” rule, which automatically provided the same protections to threatened species as endangered ones. In ending that blanket protection, FWS will have to create individual regulations for threatened species.
Challenges to the New ESA Rules
Earthjustice, on behalf of the Center for Biological Diversity and six other environmental groups, filed a lawsuit on August 21, 2019 in the U.S. District Court of Northern California challenging the Trump administration’s new ESA rules. The complaint alleges that the administration violated the National Environmental Policy Act by failing to consider the environmental impacts of the new regulations.
To see the FWS Final ESA Rule: Endangered and Threatened Wildlife and Plants; Revision of the Regulations for Listing Species and Designating Critical Habitat, 83 Fed. Reg. 35,193 (Aug. 12, 2019) (to be codified at 50 C.F.R. pt. 424).
To see the Department of Interior press release on the new ESA rules: Trump Administration Improves the Implementing Regulations of the Endangered Species Act, (Aug. 12, 2019) (on file with the Department of Interior).
To see the opinion for Weyerhaeuser Co. v. U.S. Fish & Wildlife: Weyerhaeuser Co. v. U.S. Fish & Wildlife, 586 U.S. __ (2018).
To see the Complaint for Declaratory and Injunctive Relief from the California lawsuit: Complaint for Declaratory and Injunctive Relief, Center for Biological Diversity et al. v. Berndhardt, No. 3:19-cv-05206 (N.D. Cal. Aug. 21, 2019).