Proposed Rule to Strengthen Endangered Species Act - But is it Enough?

THINK

Jul 10

The measures have stopped short of fully revoking all of the policies implemented by the previous administration, drawing criticism from leading environmental groups.

The Biden administration has moved to restore protections to the Endangered Species Act that were previously removed by former President Donald Trump. The revisions intend to better support the nation’s most imperiled animals and plants.

The United States Fish and Wildlife Service and the National Oceanic and Atmospheric Administration's fisheries service have proposed three different regulations.

They would restore automatic protections for threatened species on land and in freshwater, treating them similarly to endangered species unless stated otherwise. This aims to prevent the decline of threatened species towards extinction, supporting their recovery until they can be delisted. This regulation, known as the “blanket 4(d) rule” was dropped in 2019.

It also removes barriers to designate critical habitat outside a species’ current range, an increasingly necessary measure as habitat loss continues to push species to the brink of extinction.

Additionally, the proposal would revoke a policy that allows economic factors, such as oil, gas, and coal revenue, to be taken into account when determining whether a species should be protected.

Listing species as threatened or endangered must be done, the proposed rule reads, “without reference to possible economic or other impacts of such determination” and requires such listing decisions be made only using the best available science.

“While areas of concern exist within these new regulations, restoring automatic protections for our nation’s threatened species is a huge step in the right direction for the Endangered Species Act and biodiversity,” said Jamie Rappaport Clark, president and CEO of Defenders of Wildlife. “As humans, we are inextricably linked with the ecosystems around us. Saving nature and establishing scientifically-sound ways to coexist with wildlife must be a national priority. Our future depends on it.”

However, the measures have stopped short of fully revoking all of the policies implemented by the Trump administration, drawing criticism from leading environmental groups who argue that the changes fail to adequately protect the nation's endangered plants and animals.

The Center for Biological Diversity (CBD), Earthjustice, and Defenders of Wildlife, along with other organizations, say that the proposed updates to the Endangered Species Act should go further.

“This disappointing proposal fails to protect our nation’s endangered plants and animals. It restores pieces of the Endangered Species Act but keeps many of the disastrous Trump-era provisions in place,” said Stephanie Kurose, senior endangered species policy specialist at the Center for Biological Diversity.

“If federal officials truly wanted to stem the extinction crisis, they’d restore the full power of the Act and overhaul the US Fish and Wildlife Service,” she added. “As we celebrate the 50th anniversary of the Endangered Species Act, we need bold, transformative action, not more policy half measures.”

For example, the Biden administration’s decision to keep a definition of "adverse modification." This means that the government will only take action to protect the habitat of a species if it is affected as a whole, rather than when specific parts of the habitat are harmed.

Activists warn that this opens up a loophole for projects that slowly destroy habitat over time and poses a significant threat to species like the northern spotted owl, polar bear, and gulf sturgeon, which possess extensive critical habitat designations but remain at risk of extinction.

“The administration’s proposal does nothing to address the fact that endangered species are dying a death by a thousand cuts,” said Kurose. “This is a major omission that shortchanges not only species like the spotted owl, but also the ecosystems they and all of us depend on for our survival. There’s just no way to ensure the survival and recovery of plants and animals without protecting the places they live.”

The proposal also lets federal agencies off the hook for past harms to endangered species from things like dam or highway construction by deeming these projects part of the “environmental baseline,” according to CBD. “It also absolves the agencies for much of the damage caused by interrelated actions they facilitate, such as urban growth from highway expansion or increased global warming from emissions related to federal oil and gas leasing.

What Can You Do?

The Biden administration's new rules are open for public comment for 60 days before finalization. Will you submit a comment on the proposals before August 21st calling for all of the Trump-era ESA policies to be revoked? The survival of endangered plants and animals depend on it.

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