Judge overturns Trump administration’s ESA rule changes
California U.S District Court Judge Jon S. Tigar disposed of the Trump administration’s changes to the Endangered Species Act (ESA) on July 5. The ESA was originally passed in 1973 by President Richard Nixon and was designed to protect critically endangered species.
The court’s recent decision will make removal of a species from the endangered species list more difficult. In addition, the government will no longer be required to consider economic impact statements when it comes to listing a species and threatened species will now have the same protections as endangered species.
ESA changes in 2019
In 2019, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) finalized changes to ESA Section Four and Seven. Section four deals with adding or removing a species from the endangered species list and Section Seven covers consultations with other federal agencies.
Trump’s modifications changed the criteria and procedures for establishing protections for threatened species; the listing and delisting of species and the designation of critical habitat; and the interagency consultation process, which is used to determine whether a federal action would jeopardize a listed species.
Trump’s ESA modifications were published in the Federal Register on Aug. 27, 2019 and took effect Sept. 26, 2019.
Overturned rule changes
One of the Trump administration’s rules covered how the FWS and NMFS designate critical habitat for newly listed species. Trump’s rule only applied to future decisions to list species as threatened or to reclassify a listed species from endangered to threatened. The rule did not apply to a species listed.
Trump’s regulations for interagency cooperation changed how the agencies work with federal agencies to prevent proposed agency actions which could harm listed species or their critical habitat.
Another Trump rule eliminated FWS’s former policy of automatically extending to threatened species the protections against “take,” which the law automatically provides for endangered species.
A third rule change dealt with how FWS and NMFS work with federal agencies to prevent proposed agency actions potentially harming listed species or their critical habitat. Trump’s modifications changed how the agencies add, remove and reclassify endangered or threatened species and the criteria for designating species’ critical habitat.
The ESA had originally required listing decisions to be made “solely on the basis of the best scientific and commercial data available” and “without reference to possible economic or other impacts of such determination.”
Trump’s modifications eliminated the latter phrase – allowing economic impacts to be considered when listing a species as endangered.
Section four (d) of the law allows the agency to establish special regulations for threatened species. In 1978, FWS used this authority to extend the prohibition of take to all threatened species. This was known as the blanket four (d) rule, and it essentially means threatened and endangered species enjoy the same protection.
Trump had modified this rule to pertain only to endangered species, with threatened species having separate rules and regulations.
Given the recent court decision to retract Trump’s modifications to ESA, the agriculture community is concerned and disappointed.
Wyoming organization perspectives
“ESA rule changes were something the ag industry wanted for years. One particular change allowed for economic statements to be considered when enlisting a species or designating a critical habitat,” shares Wyoming Stock Growers Association (WSGA) Executive Vice President Jim Magagna. “WSGA was thrilled when president Trump made this change. They still had to stay focused on the species, but economic impacts were allowed to be considered.”
“The loss of these changes are certainly a loss for producers and the agriculture industry,” he added.
The changes could be appealed in the U.S. Ninth Circuit Court in California but given resources and outcomes in California courts, many agriculture organizations are weighing their next move.
“One thing making this so complex is deciding what to do, because prior to the court’s decision, the Biden administration was undergoing a process to make ESA changes,” mentions Magagna. “The most significant impact with the court’s decision is now these ESA rule changes are reinstated immediately.”
“It’s fine to have the law to save a species from extinction, it’s another thing when the law becomes a tool to keep the species protected forever – that’s what is happening,” says Magagna.
“All of us in agriculture are pretty disappointed by the recent federal court decision,” shares Wyoming Farm Bureau Federation Executive Vice President Ken Hamilton.
With these recent changes, the American Farm Bureau Federation will be working on providing comments, Hamilton notes.
“Currently, roughly 1,300 species are listed as threatened or endangered, and only a small percentage has been recovered,” mentions Hamilton. “For me, this would indicate something is broken in the act and I think the biggest part of it is, the ESA wasn’t set up to work with landowners or to recognize a landowner’s role in protecting those species and in fact it penalizes them.”
Brittany Gunn is the editor of the Wyoming Livestock Roundup. Send comments on this article to roundup@wylr.net.
