Background:

On July 25th, USFWS and NOAA Fisheries published three separate proposed rules in the Federal Register.  These were:
1) Section 4–Listing criteria and critical habitat.
2) Section 4(d)–Protective regulations.
3) Section 7–Interagency cooperation/consultation.

Overall, the agencies’ proposed rules posit 36 rule modifications (many of which are for consistency and efficiency purposes) but listing, critical habitat and section 4(d) rules have garnered the most public and media scrutiny.  Section 4 of the ESA, deals with procedures for listing species, recovery and designating critical habitat (areas essential to support the conservation of a species).

Specific Concerns

 1)   The agencies have proposed to revise the procedures for designating critical habitat, establishing policy that they will first evaluate areas currently occupied by the species before considering unoccupied areas.  On its face, this sounds almost innocuous, but for some species (and especially those affected by changing climate) currently unoccupied habitats may be their last best chance. The policy should be to identify the habitat that is critical to the species’ survival and recovery, whether it is currently occupied or not.

2)  The ESA defines a threatened species as one that is likely to become in danger of extinction within the “foreseeable future.” For the first time, the agencies are proposing an interpretation of “foreseeable future” to make it clear that it extends only as far as they can reasonably determine that both the future threats and the species’ responses to those threats are probable.  This is an intentional policy to make it more difficult for the agencies to consider the effects of complex forces like climate change. Putting the agencies under a burden of “probability” will make them increasingly cautious in protecting species, and will encourage an entire new industry of litigation around listing decisions. And it is unclear what, if any, consideration has been given to how this will affect delisting decisions. Will the same probability calculus apply when species are considered for delisting?  If so, that process will be slowed as well.

3)    USFWS is separately proposing to rescind its blanket rule under section 4(d) of the ESA, which automatically conveyed the same protections for threatened species as for endangered species. Under longstanding practice, the USFWS “default” policy has been to afford the law’s full protections to both endangered and threatened species. However, for threatened species, the agency could, and frequently has put in place a special, species-specific rule under section 4(d) of the ESA — often called a “4(d) rule”.  These rules tailor the protections for threatened species, reducing the regulatory restrictions, as appropriate for that species. Under the current proposal, no protections would apply, unless the agency fashions a specific rule enacting them.  The ESA is designed to protect and conserve species. The default switch should be set to “protect” versus what is now proposed — “not protect.”

4)  Science has always been the bedrock for the ESA listing process. In fact, the law requires that the agency shall consider only the “best available” science in making listing decisions.  The proposed regulatory changes fracture this bedrock, allowing the agency to analyze the economic impacts of listing a species, even though the law prohibits the consideration of those effects. Listing a species has always, and appropriately, been treated as a factual diagnosis. The species is endangered, or threatened, or not. Economics, national security, practicability and other factors can be, and are weighed during subsequent decision processes, like critical habitat designation, or federal agency consultation. Doing economic analysis that cannot be considered is nonsensical, places another barrier in the way of species protections, and raises the possibility that the information is being unlawfully considered.