Government Finalizes Wide-Ranging Tweaks to ESA Rules

States and interest groups are already announcing legal challenges as attorneys predict implications on species, habitats and industry

Last week, the Trump administration finalized its rule changes for the Endangered Species Act, and to no shortage of opposition from environmental groups and certain states.

As environmental and natural resource attorneys continue to speculate what effects the changes might have on species, habitats and industries, the new ESA rules are certain to face legal challenges.

The U.S. Fish and Wildlife Service, joined by the Department of Commerce’s National Marine Fisheries Service, announced Aug. 12 they are moving forward with a series of updates to how the ESA is applied. The new rules, proposed back in July 2018, will change how the federal government determines new protections for species and habitats.

The Department of the Interior hailed its new rules, which are slated to go into effect in September, as improvements to modernize the government’s ESA-related decision-making and make it more transparent.

“The best way to uphold the Endangered Species Act is to do everything we can to ensure it remains effective in achieving its ultimate goal — recovery of our rarest species,” said Interior Secretary David Bernhardt, who is a former shareholder with Brownstein Hyatt Farber Schreck in Denver. “The Act’s effectiveness rests on clear, consistent and efficient implementation. An effectively administered Act ensures more resources can go where they will do the most good: on-the-ground conservation.”

Environmental groups have decried the new rules as sweeping rollbacks to what they saw as a successful statute whose regulations remained largely undisturbed since its enactment in 1973. The attorneys general for California and Massachusetts have already said they intend to sue the Trump administration over the rules. More states are expected to join calls for a legal challenge, and, at press time, the Colorado Attorney General’s Office hadn’t yet announced its intentions either way.

The ESA itself remains unchanged, but last week’s regulatory tweaks relate to Section 4 of the act, which directs how the government may add species to, or remove them from, the endangered or threatened lists, and also how it governs critical habitats. They also relate to Section 7, which directs how federal agencies coordinate to avoid funding or authorizing activity that would threaten protected species or habitats.

Kristen Boyles, Seattle-based staff attorney for EarthJustice, said the spirit of the ESA when Congress enacted it was that it was in “the nation’s best interest to protect and conserve threatened and endangered species and the habitats that they depend on in order to survive.”

“When you look at the changes that were finalized on Monday,” she continued, “it’s just getting further and further away from the idea … that species should get the benefit of the doubt” when the government is unsure about the impacts its decisions will have. 

Boyles said it was “a lot of little changes in the rules” that “all end up putting more burden on the species” to merit protections.

One of the most significant changes is that the rules now permit the government to weigh the economic costs associated with designating a species as threatened or endangered. The ESA requires agencies to make those decisions based on the best available commercial or scientific information, and the regulations contained a longstanding prohibition on using data referencing “possible economic or other impacts of such determination.” The Trump administration removed that language.

The changes remove Section 4(d)’s “blanket rule” that assumes threatened species get all the same protections as endangered species by default. When new species are added to the federal threatened list, the government can decide to withhold different protections on a case-by-case basis.

Boyles said another concern is how the government changed the way it will treat critical habitats under Section 4. “Destruction or adverse modification” of a critical habitat is redefined as activity that diminishes the habitat’s value “as a whole” — and no longer just part of the habitat — for a listed species’ conservation. Boyles said this redefinition is “really problematic” because some wide-ranging species like grizzly bears need large swaths of territory; for them, showing a destructive or adverse action on their habitat as a whole would be a much higher bar to reach.

Another change involves how the government, under Section 7, will define the “environmental baseline” when evaluating the harm an activity might pose to a habitat. The rules will now allow effects from existing manmade actions, like a dam on a river, to be included in the baseline. So when a new action is proposed — like an additional dam or structure — the agencies will only consider the number of fish that the new structure might kill, and no longer the fish killed by the existing dam in addition. “Which is … sort of like saying that dam is part of the natural background,” Boyles said.

“They’re putting an already harmful activity in the baseline” which will allow agencies to “willfully undercount the harm,” Boyles said. 

While the rule change relaxes ESA protections in favor of industry, it’s unlikely to “clear the way” for projects the government might otherwise forbid due to the harm they might pose to protected species or habitats.

“At a general level, I think that’s an overstatement,” said Murray Feldman, a partner in Holland & Hart’s office in Boise, Idaho, who represents developers and government agencies in ESA matters. Where industry might notice the benefits of the rule change, he added, is that they will streamline project approval processes, especially regarding Section 7 consultation requirements.

“Will it expedite the permitting? Probably,” Feldman said. “Will it really be the one thing that tilts the balance over whether that project goes forward or not? That’s a lot harder to say.”

While the changes are substantial, Feldman said, a lot of tweaks “are things people have been kicking around for years if not decades” in different Western states and policy groups. “Some are codifications of what the services have already been doing,” he added.

As for the all-but inevitable legal challenges to the rule, Feldman expects they’re going to have to target granular aspects of the rule change, rather than attacking a general deficiency that sinks the whole rule. “It may have to be more specific rifle-shot approaches.”

For example, to say that the rescinding the 4(d) blanket protections for threatened species is inconsistent with the statute “could be a reach,” Feldman said. A more nuanced argument, like saying the agency didn’t adequately explain why it should depart from prior practice of the blanket rule, might have a better chance, he added. 

“There really seemed like a lot of hand-wringing” over the rule change since it was proposed last year, Feldman said, adding, “I don’t see anybody yet who’s made the case that there’s a specific species that’s going to be further imperiled by these regulatory changes.”

Critics have said that the ESA has helped few species recover to leave the threatened or endangered species list. But that’s “the wrong lens” for evaluating the ESA, Boyles said. “The question has to be whether species have gone extinct or not.” Ninety-nine percent have survived once they have been listed, she added.

“Through that lens I find it a phenomenally successful act.”

— Doug Chartier

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