In 2019 the U.S. Fish and Wildlife Service promulgated significant rollbacks to its regulations implementing the Endangered Species Act, especially sections 4 and 7 of the Act. These address the endangered species listing and delisting process, designation of critical habitat, and consultation with other federal agencies. Interior Department Secretary Bernhardt has stated that these roll backs will make the ESA more efficient and “ensures more resources can go where they will do the most good: on-the-ground conservation.” While efficiency and being pro-industry are important issues for conservative administrators, I believe that these rollbacks significantly weaken the ESA’s ability to protect this nation’s important biodiversity and will increase the likelihood of species extinctions.
One the most detrimental changes was the removal of regulatory requirements that listing decisions be made “without reference to possible economic or other impacts of such determination.” Under the new amendment to the ESA regulations, wildlife listing decisions may now consider the economic impacts of such a determination. This rollback is obviously beneficial to private landowners who are subject to the ESA. However, commentators have argued that listing decisions should be made solely on the best scientific data available for species preservation rather than economic concerns.
Another important change related to the situations in which a critical habitat no longer needs to be designated at the time of listing. Agencies will now also have to satisfy a higher standard of scrutiny for unoccupied areas to be designated as a “critical habitat”. Agencies now must first evaluate occupied habitats before considering unoccupied habitat for designation as a critical habitat. In addition, unoccupied habitat must now contain one or more physical or biological features essential to the species survival to qualify for “critical habitat” designation.
Finally, the most significant change to the ESA is arguably the removal of the “blanket 4(d) rule”. Previously, Section 4(d) of the ESA automatically provided “threatened” species with the same “take” protections of “endangered” species. With the removal of this blanket rule, the U.S. Fish and Wildlife Service will now need to establish a specific take provision for each “threatened” species on a case-by-case basis. Even though this 4(d) rescission only applies to future “threatened” species listings or downgrading of species listed as endangered to threatened status, commentators have warned that rolling back Section 4(d) could prevent newly listed “threatened” species from receiving adequate protection. In particular, it has been estimated that the U.S. Fish and Wildlife Service will need to more than double its output of species-specific rules to maintain the same level of protection that was previously afforded under the ESA.
These pro-efficiency and pro-industry changes to the ESA have undermined the Act’s ability to protect our nations’ species. I believe these changes are a major step in the wrong direction. Our country’s wildlife already face the ever-increasing destructive dangers of climate change which are seen in yearly devastating wildfires and hurricanes. These issues coupled with the rollbacks of the ESA puts our wildlife at a great risk of extinction.