The Trump administration announced on Monday sweeping changes to how the feds would enforce the Endangered Species Act (ESA), the landmark 1973 law credited with returning dozens of species from the brink of extinction. The law is a powerful tool for conservationists seeking to protect critical habitat threatened by mining, oil and gas drilling, development, and pollution, among other threats to species dwindling in number. That’s why it’s in the crosshairs.
The administration is not changing the law. It doesn’t have that authority, and repeated efforts in Congress to weaken or repeal the Endangered Species Act have faltered in the face of the law’s overwhelming popularity—84 percent of Americans overall support the ESA, and 74 percent among self-described conservatives, according to a recent Ohio State University study.
The Endangered Species Act is the conservation movement’s trump card, and it has thwarted and rankled industry and development interests for 46 years.
Instead, the White House is changing how it will interpret the law, in ways that will weaken protection of endangered species and especially critical habitat. The Trump administration wants to end automatic protections for species added to the threatened list, and bar regulators from considering effects on species beyond the “foreseeable future”—a term the administration refused to define, but that critics say is designed to block officials from considering the impact long term threats like climate change can have on endangered species.
The government, for the first time, will also account for and make public the economic cost of wildlife and habitat protection, despite explicit language in the Act that prohibits the government from considering the economic impact of listing decisions. The law is very clear on this point, and the U.S. Supreme Court held in 1978 that the plain intent of Congress in enacting the Endangered Species Act “was to halt and reverse the trend toward species extinction, whatever the cost.”
“This language admits of no exception,” Chief Justice Warren Burger wrote in the 6-3 decision.
Whatever the cost. No exception. The Endangered Species Act codifies in American law the notion that a species’ survival outweighs economic interests. It’s a powerful idea, especially when combined with the law’s clear assertion that preserving habitat is inseparable from that goal.
Take the lawsuit that led to that 1978 Supreme Court decision. It was brought by the Tennessee Valley Authority after environmentalists used the Endangered Species Act to halt construction of the Tellico Dam, citing habitat critical to a pinkie-sized fish called the Snail Darter. The court ruled in favor of the endangered fish, despite the TVA having sunk more than $100 million into the dam project.
A similar dynamic has played out dozens of times over the last four decades: Timber companies stopped from cutting old-growth forests where the northern spotted owl lives; developers prevented from building on dusky gopher frog habitat in Louisiana; farmers in California barred from pumping water from rivers crucial to the tiny delta smelt.
These actions have withstood repeated court challenges, thanks to the Act’s clear and unequivocal language. No exception. It’s the conservation movement’s trump card, and it has thwarted and rankled industry and development interests for 46 years.
Critics of the ESA complain that environmentalists use the law as a tool to control land use, rather than to save species. “This critique spotlights the core debate over the ESA’s implementation dating back to Day One: Is it about controlling lands or species?” Rochester Institute of Technology professor Kristoffer Whitney writes in a Washington Post editorial.
Whitney says the two goals are inseparable, and codifying that link is among the Act’s most important functions. “For decades, the ESA has been a critical signal—and legal recognition—of the many diverse values offered by nature, not merely its economic value as ‘natural resources.’ To roll back this landmark Act would be to surrender land and wildlife to relentless cost/benefit analysis and commodification.”
In the name of protecting endangered species, therefore, the Act also serves as a bulwark against the destruction of sensitive habitat that would otherwise have little in their corner to protect it. The endangered delta smelt in California, for example, is almost singlehandedly keeping protections in place for the entire Sacramento Delta ecosystem. Ag business wants to pump billions of gallons of water from the Sacramento River to irrigate more cropland in the arid San Joaquin Valley; diverting that water would mean destroying habitat downstream for wildlife including salmon, steelhead trout, and countless other species. The delta smelt is essentially a canary in the coal mine as well as that massive estuarine system’s last defense. And that’s merely one example in one part of the country.
The rule changes the Trump administration announced yesterday this week, without altering a word of the law itself, the New York Times says, will “mean opponents of the Endangered Species Act are still poised to claim their biggest victory in decades.”
Conservationists promise a fight.
“This effort to gut protections for endangered and threatened species has the same two features of most Trump administration actions: it’s a gift to industry, and it’s illegal,” said Drew Caputo, vice president of litigation for the conservation advocacy group Earthjustice. “We’ll see the Trump administration in court about it.”
The attorneys general of California and Massachusetts announced on Monday that they would challenge the administration’s new ESA regulations in court. At least eight other states are likely to join that suit.
“This is another attempt by the Trump administration to end-run existing law and find a way to eviscerate it through rulemaking,” Massachusetts attorney general Maura Healy said. “These new rules are misguided, they are dangerous, and they are illegal. We are going to do everything we can to oppose these actions, which put our local communities and our environment at risk.”
The principal agencies responsible for enforcing the ESA are the Commerce Department, under hedge-fund billionaire Wilbur Ross, and the Department of the Interior, headed by David Bernhardt, a former oil industry lobbyist who spent his first year at the department carrying an index card listing his many conflicts of interest and when they expire.
One of his first actions at the Interior Department was to weaken Endangered Species Act protections in a way that benefitted a former client. In 2014, Bernhardt billed $1.3 million in lobbying and legal fees to the Westlands Water District as part of an effort to lift habitat protections for the delta smelt in California. Soon after he became Trump’s Deputy Secretary of the Interior in 2017, he directed underlings to begin weakening those protections.
According to an exposé in the New York Times, “Bernhardt received verbal approval from an Interior Department ethics official before initiating the rollback of protections for the smelt, delivering on a campaign pledge by President Trump to release water for the farmers.” The Interior Department’s ethics official did not issue a written approval, and independent ethics experts called it a clear conflict of interest. Bernhardt forged ahead anyway.
Par for the course, says Caputo. “The Trump administration has taken illegal action after illegal action, and the courts have been swatting them down really regularly,” the Earthjustice lawyer told Adventure Journal. A federal judge in March blocked the administration’s effort to open parts of the Arctic Ocean to offshore oil drilling, and last year a federal judge in Wyoming overturned the Trump administration’s attempt to remove Yellowstone grizzlies from the endangered list. The ruling halted plans for the first licensed trophy hunts of the bears in the region in more than 40 years. “There are bears roaming wild today in Wyoming that would be dead without that lawsuit,” Caputo said.
Despite the headlines proclaiming the administration is “overhauling” wildlife protections and “rolling back” the Endangered Species Act, Caputo stressed that the administration is taking these administrative actions precisely because it can’t change the law. This administration will continue challenge the letter and spirit of the Act. Its allies in Congress will keep trying to change or repeal it. They will pack the courts with judges sympathetic to their views. This is a generational fight, but for now at least, the law is on the side of conservation.
“We are winning a lot of cases, and the fact that we are winning despite all the advantages in court that the federal government has is an indication that the law and the legal system still work,” Caputo said.
“I would very much not want to send the message that all is lost, because I don’t think that’s true at all. I think we can make a positive difference for the things we cherish for ourselves and for our children. My message is just to keep fighting in every way you can—whether it’s in the courts or the media or by organizing people who feel the same way you do.”