Dangerous Amendments to The Endangered Species Act

By: Meghan Meyers

The Endangered Species Act was enacted on December 28, 1973, and its main purpose was “To provide for the conservation of endangered and threatened species of fish, wildlife, and plants.”[1] This Act recognized the danger faced by both animals and plants and sought to protect them from becoming extinct.[2]On August 12, 2019, the Trump Administration announced crucial rollbacks on the Endangered Species Act of 1973.[3] The Trump Administration focused its rollbacks on Section 4, Section 4(d), and Section 7 of the Act.[4]

Section 4

Section 4 of the Endangered Species Act sets forth the standards for determination of whether a species shall be listed as endangered or threatened.[5] The evaluation is based on biology, and the different threats a species faces.[6] In 1982, Section 4 of the Act was amended to ensure this determination was “without consideration of possible economic or other effects.”[7] The new provision set forth by the Trump Administrations takes out this key phrase, which now allows for economic considerations to be weighed before a determination of endangered or threatened can be made.

Section 4(d)

In the original 1973 act, Section 4(d) provides that “Whenever any species is listed as a threatened species…the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species.” The rollbacks that have been promulgated strip away protections for future threatened species, meaning what was once coined as “blanket rules” that give threatened species the same protection of endangered, are now diminished.[8] The purpose of the original rule was to lessen the amount of endangered species there are by protecting threatened species, so the possibility of them becoming endangered is much lower. This new rollback completely destroys that prerogative.

Section 7

Section 7 of the Endangered Species Act of 1973 prohibits the actions of Federal agencies that would risk a named species or negatively interfere with its critical habitat.[9] In 1978, this provision was amended to allow for exemptions by a “Cabinet-level committee.”[10] The new rule restricts when a habitat can be deemed critical if it is not inhabited.[11] Under this new rule, Section 7 has been expanded to allow for a greater amount of critical habitats to be determined not “prudent.”[12] The amended rule has changed from two distinctions, to five circumstances in which a designated critical habitat would not be prudent.[13] The new rule requires that “areas where threatened or endangered species are present at the time of listing be evaluated first before unoccupied areas are considered.”[14] The United States Department of the Interior said that this new rule “reduces the potential for additional regulatory burden that results from a designation when species are not present in an area.”[15] This rule will likely have less harm than the other changes, since approximately 97% of critical habitats are occupied, leaving only 3% unoccupied.[16]

Although the Trump Administration believes these changes will help the economy, these rollbacks will only negatively impact both endangered and threatened species.

[1] Endangered Species Act (PL 93-205 (1973))

[2] Id.

[3] Juan Carlos Rodriguez, Trump Admin. Weakens Endangered Species Protections, Law360 (Aug. 12, 2019).

[4] Id.

[5] 16 U.S. Code §1533(B)(2)

[6] Id.

[7] A History of the Endangered Species Act of 1973, U.S. Fish and Wildlife Service (last visited Nov. 7, 2019), https://www.fws.gov/endangered/esa-library/pdf/history_ESA.pdf.

[8] 50 C.F.R. § 17 (2019).

[9] A History of the Endangered Species Act of 1973, supra note 7.

[10] Id.

[11] 50 C.F.R. § 17 (2019).

[12] Trump Administration Finalizes New Endangered Species Act Regulation, JDSupra (Oct. 11, 2019), https://www.jdsupra.com/legalnews/trump-administration-finalizes-new-78324/.

[13] 50 CFR § 424.12.

[14] Press Release, U.S. Department of the Interior, Trump Administration Improves the Implementing Regulations of the Endangered Species Act (Aug. 12, 2019) (on file with author).

[15] Id.

[16] Jonathan Wood, The New Endangered Species Act Rules, Explained, PERC, (Aug. 14, 2019) https://www.perc.org/2019/08/14/the-new-endangered-species-act-rules-explained/.

 

Image from NRDC


3 comments

  1. Great article! Interesting insight on how economic considerations can now come into play when listing endangered species, as well as the rollbacks regarding the distinction between threatened and endangered species.

  2. Interesting post, Meghan! I was aware that the Trump administration had announced rollbacks to the Endangered Species Act, but I did not grasp the true extent of harm it has the possibility of causing. I thought your analysis of the rule regarding Section 7 expansion was particularly illuminating, especially the explanation of the new rule’s application of “prudent” critical habitats. Thank you for the information!

  3. Economic considerations should not be a factor in deciding whether a species should be listed as endangered or threatened. It is a shame that this language was removed. The other rollbacks mentioned are equally as upsetting. Meghan, thank you for presenting this information in a way that highlights the changes in a simple, yet informative way!

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