Biden Administration Reverses Trump-Era Changes to the Endangered Species Act
The Endangered Species Act (ESA) is arguably the single most effective conservation law ever to be enacted in the United States. Passed in 1973 as many of America’s most iconic species approached the brink of extinction, the ESA has been successful in saving 99% of listed species and, as a secondary benefit, countless acres of natural habitats for others not on the official list.
The ESA requires the federal government to create official lists of endangered and threatened species and to implement guidelines to protect them. Specifically, the ESA imposes two main categories of protection: It makes it illegal to “harass, hunt…” or otherwise directly harm listed species except in narrow circumstances and protects habitat critical for listed species’ survival.
The Trump administration, however, made serious cutbacks on the ESA’s regulatory strength and effectiveness. The Trump administration repealed the “blanket rule,” retracting protections for threatened species and narrowed the definition of habitat to include only habitat that is currently suitable. While this redefinition of habitat appears relatively harmless, it allows the destruction of habitat that threatened species could potentially expand into. How can a severely endangered species recover without room to expand its range?
Perhaps most detrimentally, the Trump-era edits to the Endangered Species Act allowed agencies to consider economic impacts when making determinations about listing species and designating critical habitat. This, of course, is in complete contradiction to science and the purpose of the act: to protect species from extinction “at any cost.”
On March 28, the Biden administration reversed many of these Trump-era changes. The newly finalized regulations reinstated the “blanket rule” protections for threatened species and restored pre-2019 language that prohibited agencies from taking economic factors into account when making ESA-related determinations.
The new guidelines also include new language that allows agencies to consider the effects of climate change on endangered and threatened species. With climate change threatening the stability of many ecosystems, what constitutes “good habitat” for any given species may shift dramatically over the coming years.
To illustrate the practical uses of this language, Dr. Donald Hornstein, Thomas T. Taft Distinguished Professor at the UNC School of Law illustrated an example with the Key deer, a subspecies of whitetail deer present only on the Florida Keys.
“Think of the key deer, which… that's it for them. They are going to need to be migrated out into a different place with assisted migration, and you're going to have to have a place for them to go,” Dr. Hornstein said. “We are already doing this for people. And animals aren't that much further behind. So you know that considering climate change, in that sense, opens up a range of possibilities as far as the durability of this act in a world in which climate change changes everything.”
This new language, he says, could prove a point of conflict in the environmental movement. Many areas considered biodiversity hotspots are currently targeted for green energy development, bringing wildlife conservation in the short term into conflict with long-term climate goals.
But why so late? On his Inauguration Day, President Biden signed an executive order to require a review of Trump’s changes to the ESA. The review was completed in June 2021, but the rulemaking process is much longer, hence the late finalization.
According to Dr. Hornstein, the new guidelines were pushed out to meet an important deadline under the Congressional Review Act. Under this act, a newly elected Congress can reverse any rules made in the last 60 legislative days by a simple majority vote.
“Getting these rules in now gives them a far greater chance of withstanding politics that will take place in the later half of the year. And that's why you're getting all these rules and are going to continue to hear all these rules be[ing] rolled out from this administration just like every administration does, at this time of year in a presidential election year,” Dr. Hornstein said.
While the new guidelines are certainly an improvement from the Trump administration’s cuts, many activists still feel that they aren’t enough. By leaving some Trump-era rules in place, including one requiring agencies to prove “reasonable certainty” that a species would suffer unless listed, critics argue that today’s protections still fall short of what existed under the Obama administration.
The update to the ESA also retains language that requires agencies to avoid harming critical habitat “as a whole.” This means that a single project that would entirely destroy key habitat cannot move forward, but environmentalists have voiced concerns that it leaves habitat open to “piecemeal” destruction by smaller projects that ultimately build up to have the same detrimental impact.
President Biden’s record on climate is one of his campaign’s biggest pitfalls, especially among young voters. Despite his relatively enviable record on the passing of the Inflation Reduction Act, establishment of the American Climate Corps, and the establishment of a new Office for Environmental Justice, Biden’s controversial approval of the Willow Project and other fossil fuel expansions could prove to be a dealbreaker for many. As a candidate, Biden promised voters that he would end expansion of fossil fuel drilling on public lands, “period, period, period.”
In general, though, this is considered a step forward by environmental groups according to Dr. Hornstein.
“On balance, most environmental groups view this as positive and most anti-environmental groups view it as egregious,” Hornstein said.