On August 17, 2023, JUUstice Washington Board member approved signing a letter generated by Earth Justice concerning the draft rule changes regarding the Endangered Species Act. During his tenure, former President Trump rolled back a number of regulations that put the Endangered Species Act in jeopardy. President Biden has proposed to put several of those rolled-back regulations back in place; however, has left several of them in place yet. The letter calls on President Biden to restore more of the regulations and strengthen the ESA once again.
We are writing to provide comments on three proposed regulations under the Endangered Species Act (“ESA”) by the Fish and Wildlife Service and the National Marine Fisheries Service (“The Services”). Proposed rules to address harmful regulatory changes made in 2019 that undermined ESA implementation are long overdue, and we welcome this process to finally make needed revisions. The proposed rules would reverse some of the damage done to ESA implementation by the 2019 rules, and we urge you to quickly finalize those important changes. Disappointingly, the proposed rules fail to fully restore the ESA, and we urge the Services to make additional needed changes that have been detailed in public comments dating back to the original 2019 regulatory process, including those detailed below.
Over the past five decades, the ESA has been remarkably successful: 99% of species protected under the Act have not gone extinct. The ESA has also protected millions of acres of habitat: forests, beaches, rivers, and wetlands that species rely on to survive and recover. At the same time, we are facing a growing biodiversity crisis. Human activity has put over a third of the plants and animals in the U.S. at risk of extinction and biodiversity loss is occurring at an unprecedented pace, underscoring why restoration of the ESA’s full potential is more important than ever. The biodiversity crisis means fewer pollinators for agriculture, depleted fisheries, and disappearing places like old-growth forests and wetlands that provide a long-term, low-cost source of clean air, water and carbon storage.
The Endangered Species Act is the best tool we have to fight the global extinction crisis and the key to protecting at-risk species in the U.S.. With these proposed regulations, the Biden administration has taken a few steps toward restoring the purpose and power of the Endangered Species Act, including the return of default protections for threatened species within Fish and Wildlife Service jurisdiction under section 4(d) of the ESA. This is a common sense and efficient policy that has worked for decades and one that we urge the Fish and Wildlife Service to finalize quickly.
Disappointingly, the draft regulations fall short of restoring ESA implementation to its full strength. The Services must take this opportunity to ensure the final rules bring the ESA regulations back to where they were pre-2019, which means correcting a number of glaring failures in these proposed rules. Detailed comments submitted via the Federal Register notice will provide a full description of all needed changes to the draft regulations. Below are several key examples.
The Services must go back to the drawing board and fully restore section 7 of the ESA, which governs interagency consultation — how federal government agencies ensure that federal actions do not cause imperiled species to go extinct or destroy protected habitat. For 50 years it has been established that the federal government should not engage in activities that could jeopardize species’ survival or destroy habitat they need to survive and recover.
Specifically, we ask that you rescind the addition of “as a whole” to section 402.02. This language created an enormous loophole, inconsistent with the intent of the ESA itself. The nefarious “as a whole” language is a free pass to destroy critical habitat as long as the total destruction of a species’ entire critical habitat is avoided. This is especially damaging for wide-ranging and migratory species, from piping plover to marbled murrelet, from salmon to lynx. This language also ignores the cumulative impact of various causes of habitat destruction over time. And it goes against the science-based establishment of critical habitat to ensure both the species survival and recovery, instead treating some areas of critical habitat as expendable.
Additional section 7 definition changes from the 2019 rules that need to be reversed include one that creates unnecessary confusion when examining an agency action that is ongoing, or a continuation of past activities (“environmental baseline” section 402.02).
Regarding the proposed regulations for Section 4 of the ESA, the Services are weighing whether to keep a slightly modified regulatory definition of “foreseeable future,” in section 424.11(d) or to rescind the definition in its entirety. The current proposed definition could make it harder to protect species threatened by climate change by potentially allowing an administration to claim alleged scientific uncertainty to deny protections for climate-impacted species. We urge the Services to include language that would require projecting effects over the longest possible period for which credible projections are available. Barring that result, the Services should simply rescind the definition.
The Services must also rescind a Trump-era provision in section 424.12 making it easier to deny protecting a species’ habitat at the outset. Struggling plants and animals with designated critical habitat are more than twice as likely to recover than species without it. By retaining the expanded set of circumstances when designating critical habitat would automatically be “not prudent,” the Services will continue to significantly set back recovery efforts for animals like the northern long-eared bat–which is being decimated by white-nose syndrome, but also suffers from ongoing threat of habitat loss.
The Services also must reverse damaging changes made in section 424.11(e) that allow plants and animals to be prematurely delisted. It is essential that a species’ recovery meets all science-based standards before removing the backstop of ESA protections that have kept so many species alive.
Many of the changes to ESA regulations made in 2019 weakened protections for threatened and endangered species at a time when we must be doing everything in our power to fight the biodiversity crisis and recover species from the brink of extinction. Despite the broad support for restoring and strengthening the rules that implement the Act, the Services failed to do everything within their authority to restore the ESA rules and protect imperiled species.These three examples demonstrate just some of the additional changes that are needed before these proposed rules are finalized. Now is the time to get this right; we have no more time to waste.