(EnviroNews DC News Bureau) — Washington D.C. — The Endangered Species Act (ESA/the Act), in its original form, required listing decisions to be made based on science and trade data without any other considerations given for any reason. But a Trump Administration rollback in 2017 and finalized on Aug. 12, 2019 allows for economic considerations to be factored into the process — something expressly forbidden by Congress in 1982 in an effort to protect the Act from political and special interest meddling.
But now, the Administration wants to take its policy even further with a new rollback. Proposed on Sept. 4, 2020, the change would require the U.S. Fish and Wildlife Service (USFWS) to “assign weight” to industry claims about economic impacts that conservationists say are often “highly speculative.” A simple request by a special interest group would be enough to trigger the agency’s review process to exclude lands or open federal lands for exclusion from ESA protection, according to the Center for Biological Diversity (the Center).
“Developers and polluters could basically veto any critical habitat protections for endangered species by claiming economic impacts, even without proof,” Noah Greenwald, Endangered Species Program Director at the Center, said in a statement. “Wildlife simply can’t survive or recover if they have no place to live, but that’s exactly what will happen if the Trump Administration succeeds in turning over the critical habitat designation process to industry.”
Conservation groups aren’t the only ones unhappy with Trump’s move. The bipartisan Western Governors’ Association (WGA) isn’t happy that it has been shut out of the process of defining habitat and protecting the endangered animals in its purview. State governors have been relegated to using “public comments” like everyday U.S. citizens. They view the process as an “insufficient” form of communication for cooperation between state and federal governments.
“States are co-sovereigns with the federal government pursuant to the Tenth Amendment of the U.S. Constitution and other federal law,” stated the WGA letter signed by Gov. Kate Brown (D-OR) and Gov. Brad Little (R-ID). “Establishing a definition for habitat could have implications for state management of fish and wildlife,” the letter continues. “It is important for federal agencies and state wildlife managers to maintain a close working relationship to ensure that any new interpretation or application of the term does not result in unintended consequences for state management of species.”
The change continues the Trump Administration’s efforts to weaken the ESA and is directly related to the July 31, 2020 announcement of the USFWS’ and the National Marine Fisheries Service’s (NMFS) proposal to define “habitat” for the first time. That new definition excludes lands that could be viable for wildlife populations if they are degraded and can’t presently harbor wildlife. These areas, which could be reclaimed and restored, were often included in endangered wildlife management plans in the past, but that will end if the rule is finalized.
The change of definition came under heavy fire from environmental groups and several state attorney generals, according to The Washington Post. On Aug. 21, 2019, Earthjustice filed a lawsuit, on behalf of several NGOs, accusing the Trump Administration of violating the National Environmental Policy Act (NEPA) and the ESA. The lawsuit also asserts the government “inserted new changes into the final rules that were never made public and not subject to public comment, cutting the American people out of the decision-making process.” On May 18, 2020, the United States District Court of the Northern District of California dismissed the case. However, Earthjustice was able to refile the complaint and have a hearing, which is still ongoing.
“Nothing in these new rules helps wildlife, period. Instead, these regulatory changes seek to make protection and recovery of threatened and endangered species harder and less predictable,” said Kristen Boyles, an attorney with Earthjustice. “We’re going to court to set things right.”
While the original ruling dismissing the conservation organizations’ case stated they had no standing to challenge the rule changes, the outcome for the state attorney generals was a little different. With 19 plaintiffs, including the states of Pennsylvania, California, and Illinois, the court ruled they had legal standing to challenge the rules. However, 13 other states, including Alaska, Arizona, and Alabama filed to become “intervenor defendants” in December of 2019. That case is also still ongoing.
The Center counts this as the third rule since July 2019 the Trump Administration has used to decrease the effectiveness of the ESA, which many see as the best tool people have to save American wildlife and flora. As an example, the 2019 rule change has already allowed the government to deny protection of would-be critical habitat to the endangered rusty patched bumblebee (Bombus affinis) under the notion that habitat destruction was not the primary reason for the bumblebees’ decline.
“Trump’s rules are a dream-come-true for polluting industries and a nightmare for endangered species,” asserted Greenwald. “Scientists around the world are sounding the alarm about extinction, but the Trump Administration is removing safeguards for the Nation’s endangered species.”
The current proposal is already posted at the Federal Register with an official publication date of Sep. 8, 2020. Comments are open to the public until Oct. 8, 2020.
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