President-elect Donald Trump has promised to overhaul key aspects of the Biden administration's environmental policy, which could significantly affect the way public and private lands are managed.
Trump pledged to “slash regulations that stifle American agriculture” in responding to an American Farm Bureau Federation questionnaire earlier this year. Rules dictating how the Endangered Species Act, Clean Water Act and a slate of other environmental and public lands policies are implemented are likely to be reworked in his administration.
Still, undoing old rules and crafting new ones will require officials to follow the Administrative Procedure Act and the National Environmental Policy Act, which may slow their implementation. These rules require agencies to follow a notice and comment period when proposing regulations, including the repeal of final rules, and evaluating the impacts of these potential rules on the environment.
It’s quite possible the policies of a second Trump administration could resemble those of his first, including an overhaul of the way the Endangered Species Act is implemented.
Fish and Wildlife Service rules rolled out in 2019, during Trump's first term, required occupied habitat to be considered in critical habitat designations before unoccupied areas, while also setting a higher bar for determining whether unoccupied areas can be designated as critical habitat. They also removed regulations that gave threatened species the same protections as endangered species “unless otherwise specified” by FWS.
Many of the Trump-era changes to ESA implementation were scrapped by the Biden administration, drawing criticism from ranchin
Ethan Laneg groups. But Trump’s return could bring them back. “Certainly, we’re hopeful that we’ll see a continuity in a second Trump administration that matches what they did in the first administration on critical habitat under ESA,” said Ethan Lane, the vice president of government affairs for the National Cattlemen’s Beef Association, which backed the 2019 revisions.
Wyoming lawyer Karen Budd-Falen, who served as deputy solicitor for wildlife and parks at the Department of the Interior during Trump’s first administration, similarly expects those rules — or versions resembling them — to return.
“I think that’s all coming back under a Trump administration,” Budd-Falen said of the 2019 rules. “I mean, there may be changes in wording because I don’t know who’s going to be the secretary [of Interior] or the head of Fish and Wildlife or anything like that. But I think that the premise will absolutely come back in a second Trump administration.”
It’s also likely the Trump administration will undo a Bureau of Land Management rule that allows conservation leases on its land and gives land protection and restoration equal footing with grazing, energy development and other types of uses.
The rule allows the agency to issue conservation leases to individuals, businesses, nongovernmental organizations or tribal governments for up to 10 years to protect or restore habitats and ecosystems. Businesses, for example, can lease BLM land to offset their environmental impact on the private land they are developing.
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BLM manages 245 million acres of land across the U.S., with most of it located in the West. Existing law requires it to ensure lands are being utilized in a combination of ways that “will best meet the president and future needs of the American people,” a concept known as “multiple use.”
The conservation leasing rule has been lauded by environmental advocates for its potential conservation benefits, while simultaneously garnering criticism from livestock groups like NCBA, the American Farm Bureau Federation and the American Sheep Industry Association that rely on access to federal lands for livestock grazing. NCBA, AFBF and ASIA were among the groups that filed a lawsuit against BLM earlier this summer.
“My sense is the public lands rule, particularly the idea of conservation easements, was a very vulnerable concept to begin with,” said Tim Whitehouse, the executive director of Public Employees for Environmental Responsibility (PEER). “I don’t suspect that will survive a Trump administration. If it does, it’ll be very different.”
When it comes to the Environmental Protection Agency and Army Corps of Engineers regulations defining “waters of the U.S.” under the Clean Water Act, the Trump administration could take another stab at a definition.
It took the previous Trump administration until near the end of its tenure to publish its Navigable Waters Protection Rule in April 2020. It was struck down in the courts.
The Biden administration issued its own rule in 2023, but following legal challenges by states and industry groups, including the American Farm Bureau Federation, that rule is in effect in 24 states, the District of Columbia and U.S. territories.
The Trump administration could decide to stop defending the Biden rule in court, allowing EPA and the Corps to take another crack at a definition to confirm to the Supreme Court’s 2023 Sackett decision, which said Clean Water Act protection extends to wetlands only if they have a continuous surface connection with “waters” of the United States — that is, a relatively permanent body of water connected to traditional interstate navigable waters.
Mark Ryan, a former EPA attorney who worked closely on the Obama administration's 2005 WOTUS rule, said part of what complicated the previous Trump administration’s attempts to rewrite WOTUS was its exclusion of career staff from discussions.
“They didn’t have good legal advice when they started because they were cutting out a lot of career staff people because they didn’t trust them, which I think was a mistake,” Ryan said. “So it'll be interesting to see if they learn from that lesson.”
Ryan also said it's likely the Fish and Wildlife Service will back away from the idea of reintroducing grizzly bears in Washington's North Cascades, which the Biden administration is currently considering.
Tim Whitehouse“I think we can expect to see a large natural exodus of people at or near retirement age that don’t want to go through a Trump administration at this point in their lives," he said.
It’s also possible federal employees who work on policy matters may be assigned a new civil service classification, which would make it easier for them to be hired and fired, Whitehouse said.
“The concern is, obviously, that this will allow the Trump administration and subsequent administrations to have a loyalty test for scientists and other people whose work may affect policy outcomes,” he said.
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