The Biden administration satisfied neither livestock producer groups nor environmental advocates with final rules modifying how the 51-year-old Endangered Species Act is enforced.
Three rules by two federal agencies undo changes made during the Trump administration in 2019. Their update responds to an executive order from President Biden on Jan. 21, 2021, directing agencies to review rules that conflict with what he called important national objectives such as environmental protection and combatting climate change, the Interior Department's Fish and Wildlife Service said in a fact sheet on the rules.
The Trump-era rules were hailed by industry but environmentalists said they opened the door to considering potential economic impacts of species listings – something that had never been done before and considered by supporters to be contrary to the language of the law itself.
Trump's regulations also imposed a different standard for protection of endangered species (those in danger of extinction throughout all or a significant portion of their range) and threatened species (those considered likely to become endangered in the “foreseeable future”).
One of the three new rules restores protection for threatened species so that the same prohibition against “take” of the species applies. “Take” refers to a broad range of activities, including harming, harassing, pursuing or shooting a species.
The National Cattlemen’s Beef Association, which supported the 2019 revisions, expressed dismay at the changes. It particularly dislikes to revisions to critical habitat rules. Under the ESA, agencies must designate critical habitat within a year of listing a species.
Federal agencies must consult with the services if their actions may “destroy or adversely modify” critical habitat for listed species. But just the act of designating critical habitat has been controversial, especially when habitat now unoccupied by the species would be designated.
Sigrid Johannes, Public Lands Council and NCBA“The one that's going to have the largest impact on folks is the unoccupied critical habitat designations,” said Sigrid Johannes, director of the Public Lands Council and NCBA government affairs. “How do we see this impacting ranchers? I think unfortunately, it’s kind of the sky's the limit at this point on how Fish and Wildlife wants to designate unoccupied critical habitat." She said there is no longer a requirement that “to ensure that the area that you're designating actually has the biological features that can support the species.”
Instead of showing habitat “can actually support a specific species,” she said, “it just has to be deemed essential. And that leaves an enormous amount of discretion up to Fish and Wildlife.”
In the regulations, FWS and the National Marine and Fisheries Service said the revisions remove a requirement that the unoccupied areas have a "reasonable certainty" of contributing to the species’ conservation and having features essential to the its conservation.
The new rule also removes a requirement to designate all possible occupied areas as critical habitat before considering an ESA designation, the agencies said. They assert that the "reasonable certainty" standard is unnecessary because the language of the law prohibits the agencies from making their decisions on speculation. The ESA requires that the services use “the best scientific and commercial data” in listing and designating critical habitat.
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Johannes expressed concern about a Sept. 30 deadline for the agency to determine whether to propose listing the Monarch butterfly as either endangered or threatened.
“I don't see a scenario where a critical habitat designation for a pollinator species that can fly anywhere it pleases is any smaller than the lower 48 states,” Johannes said. “If they do choose to designate habitat to go along with that in the fall, I think it'll probably encompass most, if not all, the country, and that will obviously have a lot of impact on farmers and ranchers.”
Johannes also said NCBA and PLC are “not thrilled” with removal of language that appeared to allow the services to consider the economic impact of at-risk species listings.
In the final regulations that became effective late last month, however, the agencies said the 2019 version “created the impression, and possibly even expectation, that the services would compile information regarding the economic impacts of classification determinations, and it created concerns that the services would inappropriately consider such information when making classification determinations.”
The agencies said in one of the three rules that it was never their intention to take into account the economic impact when making classification decisions because "doing so would clearly run afoul of the act." The new language "should help dispel these misperceptions and concerns.”
Defenders of Wildlife and other groups focused on endangered species said the rules did not go far enough. Defenders Senior Staff Attorney Ellen Richmond told Agri-Pulse that by defining “adverse modification” as harm to critical habitat as a whole, the approach would “sanction piecemeal destruction of critical habitat without full consultation.”
Earthjustice said the amended rules would allow “near-total destruction of protected habitat" before finding a problem. “While the revised rules make the ESA a stronger tool for defending biodiversity in the wake of damaging changes in the regulations made in 2019, the Biden Administration fell short of fully restoring the bedrock environmental law protections imperiled species need to survive and thrive,” Earthjustice said.
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