After two years of review and revision, the US Fish and Wildlife Service announced a set of changes to the regulations that spell out how the it will implement parts of the Endangered Species Act. The changes focus on how officials should decide whether to list a species as endangered or threatened, what kind of protections threatened species should receive, and how officials will decide which areas of habitat to protect.
In practice, the changes may weaken the Endangered Species Act’s protections. Depending on how this and future administrations interpret the wording of the regulation, these changes could make it easier to remove species from the endangered and threatened species lists. The wording may also give officials tacit permission to dismiss climate change as an irrelevant threat to species’ survival and to consider economic factors when they’re deciding whether to protect a species.
There were many signs this was coming. The Trump administration proposed some of the revisions, including removing the phrase “without reference to economic impact,” last July. And overall, this batch of regulatory changes fits into the administration’s broader theme of eliminating regulation and rolling back environmental protections.
A culmination of many battles
The ESA was signed into law during the Nixon administration in 1973. It requires the Fish and Wildlife Service, along with the National Marine Fisheries Service, to identify and protect species facing the risk of extinction. Under the law, if a species is listed as endangered or threatened, FWS and NMFS can prohibit people from hunting or harvesting that species or damaging certain areas of its habitat. Species added to the lists also get recovery plans, usually implemented largely at the state level, to help the species’ numbers rebound.
Since 1973, 1,650 animal and plant species have been listed, and 85 species have later been removed from the list, either because they recovered or (in the case of 11 species so far) went extinct.
The newly announced changes in how the Endangered Species Act is implemented come on the heels of two years of vigorous but ineffective efforts by Congressional Republicans to overhaul the ESA itself. Since 2016, about two dozen bills seeking to weaken the ESA have either been introduced in Congress or proposed by the Trump administration. These have included several bills targeting protections for individual species, which conflict with various industries’ interest in development.
Despite decades of opposition to the Endangered Species Act, especially among ranchers and the oil and logging industries, none of the recent string of bills made it to the Senate. Even in a then-Republican-controlled Congress, attempts to seriously overhaul the ESA and its enforcement haven’t gotten much traction.
What deserves protection?
Most of Monday’s changes hinge on subtle differences in wording (you can read these documents for a deeper dive than you ever wanted to take into the meaning of words like probable, likely, reasonable, and reliable). But the fate of at-risk species may now depend on those subtleties—and on interpretations of 46 years’ worth of court rulings.
FWS released 359 pages of documents on Monday, outlining the revisions, the reasoning behind them, and the back-and-forth with “a wide range of stakeholders” who FWS had asked for their comments during the two-year process. Ars delved deep into these documents to break down what the changes could mean for the future of endangered and threatened species.
The revision with the least semantic hair-splitting simply reduces protections for any species that get added to the threatened species’ list in the future. Until now, FWS has automatically given threatened species the same set of protections as endangered species. But NMFS (which enforces the Endangered Species Act for all marine species; FWS is responsible for land and freshwater species) has always decided on a case-by-case basis how to protect threatened species. According to the FWS, the change is supposed to get the two services on the same page.
Species already listed as threatened or endangered won’t have their protections changed, but for newcomers to the threatened species list, FWS will make species-specific rules, purportedly based on the case. And endangered species that have recovered enough to be downgraded to threatened status will lose those protections in the process. Some observers, including many of the stakeholders FWS asked to comment on the proposed revisions, worry that the removal of automatic protections will leave threatened species more vulnerable.
Profits vs. protection
Another change appears to allow regulators to consider lost revenues from companies unable to develop on protected land, along with other economic impacts, when they’re deciding whether to protect a species. The revisions remove a key phrase from the original regulation, which says that decisions about listing species should be based on the best available data “without reference to possible economic or other impacts of such determination.”
With that phrase eliminated, it could be possible to interpret the regulation as allowing room to protect industry profits instead of at-risk species. That could have spelled doom for especially contentious species, like the northern spotted owl.
But FWS and NMFS claim that the change in wording doesn’t mean they’re going to start doing cost-benefit analyses—in fact, they claim that the original wording of the Endangered Species Act requires them to base the decision solely on scientific data, regardless of how the regulations (which only tell the services how to their parts of the Act) are worded.
“Removing the phrase does not signal any difference in the basis upon which listing determinations will be made,” they wrote. “We remain committed to basing species’ classification decisions on the best available scientific and commercial data and will not consider economic or other impacts when making these decisions.” FWS says the revision is about transparency, and that the service only wants to compile information about the economic impact of a decision and then present that information to the public. It’s not clear whether that stated intent will be binding, however.
FWS acknowledges that removing the economic impact wording was likely to be an unpopular choice. “Most commenters disagreed with removing the phrase,” they wrote. On the other hand, “at least one commenter” suggested revising the regulations to explicitly make economic impacts a factor in decisions about species’ status. FWS said simply, “We decline to do so.”
Targeting climate change?
Another set of revisions could make it easier for the administration to ignore or downplay the effects of climate change when it’s making decisions about whether a species needs protection.
One of these changes alters how FWS will decide whether to protect an area of habitat. The revision makes it harder to designate an area as “critical habitat” when it has all the features a species needs, but the species doesn’t currently live there. The problem here is that, under a changing climate, some species may move into areas they’re not currently using as climate renders their old habitat less amenable.
FWS claims that its regulatory changes won’t prevent officials from designating unoccupied habitat for protection if the “best available data” says it’s necessary and will actually help. “For species threatened by climate change, we will designate unoccupied habitat if we determine that occupied areas are inadequate to ensure the conservation of the species and we identify unoccupied areas that are essential for the conservation of the species,” it wrote. But again, it whether that will play out in practice will probably depend on the people in charge of FWS at the time.
The other potential loophole for ignoring climate change comes in the form of some hair-splitting changes in wording. A threatened species is “any species which is likely to become an endangered species within the foreseeable future,” and the latest changes to the FWS’s regulations focus on what “foreseeable future” means. It really hinges on two seemingly minor but legally meaningful things.
Here’s the chunk of text in question: “The term foreseeable future extends only so far into the Future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.”
The first hair to split is “likely,” which FWS actually defines as “more likely than not,” so presumably there’s got to be at least a 51 percent chance of something happening for it to count. The reason for concern is obvious, given this administration’s track record of denying, dismissing, or downplaying the best available science on climate change and its impacts.
The second is the phrase “threats and the species’ response to those threats,” an unwieldy string of words that replaces the phrase “conditions potentially posing a danger of extinction in the near future” from the original regulation’s wording. FWS says that “conditions” could refer to potential conditions as well as “actual or operative threats.” That raises the concern that climate change effects, which aren’t expected to fully kick in for a few more decades, could be dismissed as not being immediate or “operative” enough. This could impede efforts to protect species like polar bears and whooping cranes from threats that are developing now.
“The best available science”
FWS tackled the issue head-on: “Multiple commenters expressed concern that under the proposed ‘foreseeable future’ framework, the Services would consider climate change as a hypothetical and not a ‘probable’ threat or would otherwise ignore the best available science on climate change,” they wrote.
“Consistent with our longstanding practice, in all classification decisions, we will consider the best available science and evaluate impacts to the species that may result from changing climate within the foreseeable future,” wrote the FWS in response. “We will consider what the particular climate-related predictions mean in terms of impacts on the species as well as impacts on the larger ecosystem. […] We will take all of the available climate change data into consideration when making a reasonable determination regarding the foreseeable future and the status of the species in the foreseeable future.”
Of course, it bears mentioning that it’s up to the federal regulators to decide what counts as the “best available data”; the current administration has a less-than-stellar track record on such decisions when it comes to climate change. According to the FWS, some commenters asked for language explicitly requiring the services to take into account projects of climate change, sea level rise, ocean acidification, and its impact on ecosystems, but that wording didn’t make it into the final version.
Shortening the list?
Another change could make removing species from the endangered or threatened lists easier. The current version of the regulation offers some examples of reasons to remove a species from the lists, including the recovery of its population. The new revision removed the example, and the word “recovery” doesn’t appear anywhere else in the section on de-listing species. That change has raised concerns that FWS might remove species from the lists before they’ve had a chance to recover.
FWS maintains that when officials are deciding whether a species is doing well enough to be removed, they’re supposed to look for the same five factors they used for making the listing decision in the first place. To qualify for a place on the threatened or endangered lists, a species has to meet one of five criteria, and the agency says the new regulations haven’t changed that.
The newly-announced changes are set to take effect in mid-September, 30 days after their publication, but that process may face delays. Several environmental advocacy groups have reportedly filed lawsuits related to the changes.
And although changes to the Code of Federal Regulations don’t have to be passed by Congress, they may still face Congressional opposition under the Congressional Review Act, which allows Congress to review and overturn federal agencies’ regulations. Senator Tom Udall (D-NM), the ranking member of the Senate subcommittee that oversees the Department of the Interior’s budget, said in a statement Monday that he and several colleagues were willing to pursue that option.