The war on endangered species has intensified since Republicans took over all branches of the federal government. It intensified further when the Trump administration proposed a large overhaul of the Endangered Species Act this week. Ironically, the biggest change could lead to more species being declared endangered.
The Fish and Wildlife Service (FWS) announced three proposed changes on Thursday to the landmark law that helped save the bald eagle. Of the three proposals, the most insidious is a change to the banal-sounding “4(d) rule.” Here’s the deal.
There are two protected classifications under the Endangered Species Act: “endangered” and “threatened.” Endangered means species are at risk of extinction, threaten means they’re likely to become endangered “within the foreseeable future.” Obviously having species go from threatened to endangered is not a good thing. The 4(d) rule is designed to keep that from happening by automatically extending certain protections afforded to endangered species to threatened species as well.
Specifically, it protects them from “take,” a broad term that covers hunting, collecting, trapping or otherwise removing species from their natural habitat or harming them. The Trump administration has proposed that it would replace that blanket rule and instead develop species-specific rules. To justify the change, FWS said the “proposed changes will align our practices” with the National Marine Fisheries Service, which also protects species under the act but doesn’t afford 4(d) rule protections to threatened species.
Dave Owens, an environmental law professor at the University of California, Hastings, told Earther that rings a bit hollow since there’s no reason to align the two approaches. They don’t regulate the same species. Moreover, FWS doesn’t really offer any justification as to why the 4(d) rule approach isn’t working.
It sure seems like the change isn’t designed to benefit species protected under the act and it creates a big burden by asking FWS to create species-specific plans to protect them from being taken. Which is perhaps the point.
“There is no reason to believe that this administration would opt to write hundreds of case by case 4(d) rules to protect each species separately (and even a more protective administration would be hard-pressed to find the resources to do so), so it is effectively a wipe-out of take protection for threatened species,” Kalyani Robbins, an environmental law professor at Florida International University, told Earther. “This means that developers can kill threatened species that get in their way.”
She also called the proposal around the 4(d) rule “the most shocking and disturbing change” and “catastrophic.” Owens concurred, calling it a “major change” that could effectively mean that more species end up being classified as endangered as their numbers dwindle. That would create further problems, because the Trump administration has been loathe to list species and placed a virulent Endangered Species Act hater in charge of its implementation.
“The oil and gas industry has asked for these changes for years; hindering listing decisions makes development in certain areas easier,” Charise Johnson, an analyst at the Union of Concerned Scientists’ Center for Science and Democracy, told Earther. “They’d be getting more lax regulations at the expense of endangered species.”
Beyond the 4(d) rule change, the proposal could also harm threatened (and endangered) species in other way by redefining what it views as the “foreseeable future,” which is used to help determine if species are threatened or endangered. The current iteration of the act leaves it pretty vague, whereas the new proposal would define it as a timeframe where FWS “can reasonably determine” the threats to species are probable, thus making them worthy of listing.
This definition is problematic when it comes to climate change, whose effects will manifest on timescales largely determined by how much more carbon pollution we put in the atmosphere. We know sea level rise will wipe out current piping plover habitat and that rising temperatures in the Rockies will eventually cause whitebark pine trees to march higher up slope. But the exact timeframe for when those things happen is not set in stone.
That leaves an opening for how the administration could interpret its proposed language. Interior Secretary Ryan Zinke, who questions basic ass science and wiped out departmental guidance on how to plan for climate change earlier this year, could effectively decide climate change projections are too uncertain to do anything with, leaving species to suffer the consequences.
“Climate change has created far less predictable future conditions, so we have no ‘reliable’ predictions for the 100 years out timeframe that courts have asked the agency to consider,” Robbins said. “That said, a wide range of future scenarios are foreseeable.”
Fewer endangered species would enable more development, particularly on public lands. A number of Republican members of Congress from western states with heavy fossil fuel industry ties are also pushing other ways to gut the act, which would put more species at risk of extinction.
“Attacks on the ESA are coming from all sides,” Johnson said. “Today, the ESA is 99 percent effective at protecting species from extinction because decisions are based on independent science.”
It may lose some of that effectiveness if the attacks continue.