Last week’s endangered species regulations: what really happened?

You've probably read all about it by now. Last week, the Trump administration released the most comprehensive reform in decades to the regulations for the Endangered Species Act. The changes prompted the New York Times, Washington Post, and many other papers to write editorial opinions lambasting the move. At least 10 state attorney generals plan to challenge the regulations in court. On the other hand, free market groups and senior administration leaders extolled the changes as promoting wildlife and private landowner goals.

Endangered species protection is as partisan an issue as any, so the news tends to cover the two extremes—which means that the truth is somewhere in between.

At the Innovation Center, we strive to offer accurate perspectives on the ESA. Doing so is critical to finding real solutions to save more wildlife, faster. Today, we released our detailed analysis on the Trump administration’s changes and what they could mean for wildlife. Visit our new webpage for a quick overview and a detailed breakdown of the regulations. Our takeaway is that among the 33 changes we found, some would harm conservation, some would improve conservation, some depend entirely on how the government will interpret the new regulations, and over half will have only negligible effects on conservation (although they might improve government efficient and other objectives). Almost all the media coverage has focused on only a handful of the most problematic changes. Even among those changes, a careful look reveals that very few are likely to lead to the apocalyptic scenarios described in headlines everywhere.

One example is the coverage of the new interpretation of how far into the future is "foreseeable" when the government decides whether to list a species as "threatened." Most coverage on this issue has claimed that the new interpretation will severely limit the government's ability to make predictions about the future, allowing wildlife agencies to ignore protections for species threatened by climate change. For example, Nature--a widely respected information source--reports that the wildlife agencies now "have leeway to determine the time period meant by the foreseeable future, and can only consider threats that are 'likely' to occur in that time frame." Statements like these, which are rampant in the news, imply that the agencies didn't previously have leeway and that the new "likely" standard limits how far into the future is "foreseeable."

These statements are plain wrong. First, the government has always had considerable leeway to decide how far into the future is foreseeable. In fact, this was a central issue in the 2014 decision not to list the North American wolverine, the 2008 decision to list the polar bear, and many other decisions. There was even a study on this very topic. Second, the Nature story omits the fact that under prior practice, the foreseeable future was already limited to time periods for which scientists could make "reliable" predictions. For example, in the 2016 proposal to list the western glacier snowfly, the Obama administration limited the foreseeable future to 35 years, explaining that it couldn't reliably predict how climate change would affect the insect's alpine environment beyond 2050. So the real question is not whether the new definition of foreseeable future will limit how far into the future is foreseeable--that limit has always existed--but whether the new "likely" standard is more restrictive than the prior "reliable" standard. The new standard means "more likely than not," suggesting the odds need to be at least 51% to 49%, which seems more protective than what I've seen in several listing decisions from the Obama administration but less protective than some other decisions. How our wildlife agencies interpret the likely standard remains to be seen, but I doubt we'll see the drastic changes that many people are predicting.

As you can see from the foreseeable future discussion, context matters. For many of the other changes announced last week--including when "critical habitat" would be designated and how best to protect threatened species--there are two very legitimate sides to the story, but you're unlikely to hear them both in the news. At the Innovation Center, we've tried to summarize both sides of the most controversial issues in our analysis of all 33 regulatory changes, which you can find here.

Ultimately, the key question is how the regulatory changes will affect conservation. We're using data to answer that question for two of the most important changes: the foreseeable future and the use of special 4(d) rules to tailor protections for threatened species. Along with our Summer Fellow Angus McLean, we’ve read all 447 decisions since 2010 that interpret the foreseeable future and recorded key information such as the time period for the foreseeable future and the type of threat for which the prediction was made. A summary of this project is online. We've also done the same with every 4(d) rule every written. We'll periodically update these analyses so that you can see whether the new regulations actually change ESA practice and, if so, how much. We're doing this crucial work because there's no other way to truly understand the effect of the changes.

So are there any changes that really bother us? Of course. One of the most troubling hasn’t received much coverage because it involves the inner workings of section 7 consultations, in which federal agencies carrying out activities that affect listed species must consult with our federal wildlife agencies to ensure that those activities aren’t likely to “jeopardize” species or harm their critical habitat. The change at issue involves how wildlife agencies make the jeopardy finding. It eliminates the idea that there can be a “tipping point” beyond which a species can longer recover from the harmful effects of habitat loss and other impacts. This change will make it even harder for the agencies to track the cumulative amount of harm a species has experienced, especially because the agencies don’t systematically track this information in the first place.

And of course, what really bothers us is that there is little within this package of changes—or in anything being proposed by members of Congress or governors—that would dramatically improve the number of species recovered and the amount of biodiversity saved. There are dozens of ideas that would do so—and many of them won’t even have a significant cost. It’s the lack of attention to those ideas that really makes this moment a shame.

If you want to learn more about the regulatory changes, tune into the Environmental Law Institute's ESA panel discussion this Friday, which I'll be moderating. And check out NPR's great story on the foreseeable future and climate change, in which legendary Berkeley Law professor Holly Doremus and I explain why we think much of the coverage on the regulations is overblown.

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