The Endangered Species Act and Wildlife Under Assault

An influential faction of the 115th Congress is expressing a clear animosity toward animal protection measures. Emboldened, perhaps, by an administration that appears sympathetic to their aims, this faction is waging an escalating assault on animal welfare, and seems especially intent on undermining the Endangered Species Act (ESA).

The ESA, by far our nation’s strongest conservation law, saves species from extinction and preserves the ecosystems on which they depend. It provides that decisions on whether to list species as endangered or threatened must be based solely on the best scientific and commercial data available.

Current Legislative Attacks on the ESA
By the end of April, more than two dozen bills had been introduced in the 115th Congress aimed at weakening the ESA. The latest, and most sweeping, is the Endangered Species Management Self-Determination Act (S 935/HR 2134). This bill would, among other things, amend the ESA to require congressional approval before species can be listed as endangered or threatened and automatically remove plants or animals from the endangered/threatened lists after five years unless Congress passed a joint resolution to retain them. It would also require the US Fish and Wildlife Service (USFWS) to obtain the consent of governors before making management decisions that would affect species solely within their states.

Other efforts to undermine the ESA include the following:

  • The Endangered Species Act Settlement Reform Act (S 375) would make it easier for local governments and affected industries to intervene in ESA citizen lawsuits and block court-mandated settlement agreements to benefit species.
  • The Listing Reform Act (HR 717) would require that the economic cost of adding species be taken into account before any species is listed under the ESA (the ESA currently mandates that only science be used to inform the listing process) and removes mandatory deadlines for all listing decisions.
  • The Regulations from the Executive in Need of Scrutiny Act (HR 26) would require the executive branch to get approval from Congress for significant new environmental, food safety, and other rules.
  • The Federal Land Freedom Act (S 335) would waive compliance with the ESA for all oil and gas and other energy development activities.
  • The State, Tribal, and Local Species Transparency and Recovery Act (S 735/HR 1274) would elevate data submitted by tribal, state, and county authorities to “best available science” status (even if it is not) and require all data used to support species’ listings to be run by the states first—so as to create further obstacles to an already long and difficult process.
  • The Litigation Relief for Forest Management Projects Act (S 605) would exempt already-approved land management plans from ESA Section 7 consultations (by which federal agencies ensure that the actions they take, fund, or authorize do not jeopardize listed species) when new species are listed or critical habitat is designated.
  • The Stop Taxpayer Funded Settlements Act (HR 1525) would block attorneys’ fees settlements for environmental law (including ESA) cases.
  • The Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act (HR 200) would override the ESA whenever the ESA triggers fishing restrictions and transfer implementation of such restrictions to the mechanisms set forth in HR 200.
  • The African Elephant Conservation and Legal Ivory Possession Act (HR 226) would weaken some of the restrictions on ivory import/export currently in place under the African Elephant Conservation Act and the ESA.
  • The Mexican Gray Wolf Recovery Plan Act (S 368) would allow states hostile to Mexican wolves to participate in forming the species’ recovery plan, regardless of what best available science indicates.
  • The Gray Wolf State Management Act (S 164/HR 424) would reissue the 2011 and 2012 USFWS rules to delist wolves in the Great Lakes and Wyoming without judicial review.
  • The Greater Sage-Grouse Protection and Recovery Act (S 273/HR 527) would allow state governors to block provisions within federal sage-grouse conservation plans that do not align with state-approved conservation strategies.
  • Rider to the concurrent resolution setting forth the congressional budget for the United States Government for fiscal year 2017 and setting forth the appropriate budgetary levels for fiscal years 2018 through 2026 (S Amdt. 151 to S Con. Res. 3) would prevent the USFWS from listing the sage-grouse under the ESA for at least 10 years and transfer oversight of federal lands where sage-grouse is found to Western states.
  • The Gaining Responsibility on Water Act (HR 23) would exempt water diversion projects in the Sacramento and San Joaquin Rivers from compliance with the ESA.
  • The Sacramento Valley Water Storage and Restoration Act (HR 1269) would replace the USFWS with the Bureau of Reclamation as the lead federal agency for purpose of reviews, approvals, or decisions for water infrastructure improvements in the Sacramento Valley.

The ESA in Court
Fortunately, there have been two recent (and very important) victories for threatened and endangered species in the courts. On March 29, the 10th Circuit Court of Appeals overturned a decision by the district court and ruled that the federal government has the authority to protect threatened and endangered species that inhabit a single state. The ruling was in response to a 2015 challenge arguing that because the Utah prairie dog exists solely in Utah, the USFWS cannot regulate the ability of landowners to eliminate the prairie dogs from their land. Had the appellate court agreed with this argument, the result could have been disastrous, given that close to 70 percent of species protected under the ESA inhabit a single state. AWI and allies had filed an amicus brief supporting protections for the prairie dog. (Of course, this ruling only means that the USFWS can move to protect such species. Under the current administration, it is doubtful that the USFWS actually will take appropriate action.)

That same day, the United States District Court for the District of Arizona set aside the dangerous “significant portion of the range” policy finalized by the USFWS in 2014 that made it very difficult for species at risk to gain federal protection. The ESA defines an endangered species as one that is “in danger of extinction throughout all or a significant portion of its range.” The draft policy, however, effectively declared that a species endangered in a portion of its range would only gain recognition as endangered under the ESA if the loss of that population threatened the survival of the species as a whole.

Congress, Administration Act Quickly to Remove Wildlife Wins
Wild animals have already taken several hits under the current administration and Congress. The Congressional Review Act, enacted in 1996, allows Congress to use an expedited legislative process to review and overturn new federal regulations. In March, Congress used this power to pass H Joint Res. 69, striking a rule enacted during the waning days of the Obama administration that prohibited particularly brutal hunting practices targeting predators within national wildlife refuges in Alaska—practices that include the killing of black and brown bears cubs and mothers with cubs, killing of bears with traps or snares, killing wolves and coyotes with pups during their denning season, and same-day shooting of bears observed from aircraft. H Joint Res. 69 was signed by President Trump on April 3.

In addition, the West Indian manatee has been downlisted from endangered to threatened under the ESA, and the scarlet-chested and turquoise parrots have been delisted (actions proposed by the USFWS during the Obama administration). There are indications that grizzly bears in the Northern Rockies could be the next to lose ESA protections.

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