Protecting Threatened and Endangered Species Could Get a Lot Harder

The Endangered Species Act is one of the most impactful and successful environmental laws in American history. For over half a century, the federal government has used the law to prevent wildlife from barreling toward extinction. 

Key to its success is that it allows leaders to explicitly put the survival of listed species above economic and industrial growth. Since becoming law, the ESA has survived attacks from conservatives and polluting industries and succeeded in bringing iconic species like the bald eagle and American alligator back from the brink.

Last month, the Trump administration announced a suite of changes that attempt to gut the act’s regulatory power. Most of these changes would return the ESA to policies created under President Trump’s first term, many of which were reversed by the Biden administration.

The conservation community was quick to condemn the proposed rules, warning that the set of changes would put not only species but whole ecosystems at risk.

“The Trump administration is stopping at nothing in its quest to put corporate polluters over people, wildlife and the environment,” said Sierra Club executive director Loren Blackford. “After failing in their latest attempt to sell off our public lands, they now want to enable the wholesale destruction of wildlife habitat for a short-term boost in polluters’ bottom lines.”  

One of the most important parts of the ESA lays out how and when federal officials should add plants and animals to the list of threatened and endangered species. Among the proposed changes are a suite of revisions to this subsection that would make it harder to list species and narrow the definition of “foreseeable future,” a defined phase that currently gives the federal government leeway in how it assesses long-term threats, such as climate change, in decisions about listing species. But perhaps one of the most significant changes to the regulations is in what has been omitted. 

The authors of the statute were clear in their introduction that unchecked growth had been the cause of the extinction crisis, writing, “Various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation.”

To this day, the law continues to uphold this concept with regard to listings: Conservation should take precedence above all else. The ESA states that listing decisions should be made based “solely on the basis of the best scientific and commercial data available,” considering the biological status of the species and threats to it. For decades, the regulations reflected Congress’s clear intent by stating that listings should be made “without reference to possible economic or other impacts of such determination.” 

The Trump administration wants to strike this. In doing so, conservationists fear that omitting this language will result in economic costs being considered during the listing process, putting improper pressure on agency decision-makers and unlawfully influencing their decisions. 

“The ESA has been extraordinarily successful in preventing extinctions, but if economic impacts become a major consideration, that success could come to an end,” said Michael J. Parr, president of the American Bird Conservancy.

Another important part of the Endangered Species Act deals with “critical habitat.” This is the designation used to protect not only species but also the land and water they need to survive and recover. The new proposal makes two big changes to critical habitat. First, the revision would make it harder to designate critical habitat areas that are not occupied by a species at the time of listing. And second, while the ESA has required officials to consider economic impact when designating critical habitat, the revision, if enacted, would compel them to favor economic concerns over the recovery of species. It would do this by directing decision-makers to exclude areas from critical habitat designations if an administration deems that the economic costs of protecting the habitat outweigh the benefits to the species, and will not cause extinction, even if recovery is undermined.

One of the other major changes is the end of the US Fish and Wildlife Service’s so-called blanket rule, which automatically grants newly listed threatened species the same protections afforded to endangered species. This is typically the case unless and until USFWS makes a species-specific rule for the threatened species. It is important because it helps prevent species listed as threatened from going without necessary protections due to administrative delays, which would push them toward the more severe endangered category. It provides immediate and broad protection until USFWS can make determinations to tailor the protections.

When it was drafted and signed into law, the ESA was a thoroughly bipartisan bill. Lawmakers in the Senate passed the measure 92-0, with eight abstaining. And in the House, with the support of 170 Republicans, the law sailed through 390-12. President Richard Nixon, a Republican, signed it into law on December 28, 1973. His administration had pushed for the law, calling existing species-protection laws inadequate.

By the 1960s, the American extinction crisis had reached epic proportions, a symptom of uncontrolled economic growth combined with few environmental regulations. There had once been up to 100,000 nesting bald eagles in the continental United States. By 1963, fewer than 500 breeding pairs were left. American alligators, hunted for leather and meat and rapidly losing their wetland homes to development, had disappeared from most of their native range. Wolves had been wiped out from the lower 48 states, except for a tiny corner of Minnesota. By the 1970s, only about 1,000 grizzly bears lived in the contiguous US. And across the country, hundreds of less visible, less charismatic species were also disappearing. 

Today, even as climate change, pollution, and habitat loss continue to threaten animal and plant populations, the act has a long list of successes. Bald eagles and alligators have rebounded and returned to much of their former range. A 2019 study estimated that 99 percent of all ESA-listed species had been preserved, and that its passage had prevented the extinction of almost 300 species.

Another study, published in June in the journal Conservation Letters, showed just how popular the ESA has remained, even after decades of conservative attacks. Over the last 30 years, public support for the act has remained about the same, a whopping 84 percent. Opposition has stayed about the same too, averaging 12 percent, mostly from lawmakers funded by lobbyists. Still, these efforts have mostly failed at weakening the act and have yet to put a dent in its popularity.

“Trump’s attacks on the Endangered Species Act seriously misread the room,” said Kristen Boyles, an attorney for Earthjustice, in a statement. “Most people are not going to allow the sacrifice of our natural world to a bunch of billionaires and corporate interests.”

The public comment period for the proposed changes is open until December 22. Just like the first time the Trump administration threatened the ESA, there are sure to be several lawsuits challenging these sweeping and dangerous changes. An overwhelming public outcry has worked to slow or stop destructive ideas before, such as the recent proposals to sell off public lands. Advocates say that the popularity of the ESA shows that environmental protection can sometimes cross even the starkest partisan lines.

“Trump’s proposals are a death sentence for wolverines, monarch butterflies, Florida manatees, and so many other animals and plants that desperately need our help,” Stephanie Kurose, the deputy director of government affairs at the Center for Biological Diversity, said in a press statement. “We assumed Trump would attack wildlife again, but this dumpster fire of a plan is beyond cruel. Americans overwhelmingly support the Endangered Species Act and want it strengthened, not sledgehammered. We’ve fought this before and we’ll fight it again.”