Illustration: Jason Holley
Illustration: Jason Holley

A Most Endangered Law

By Christopher Ketcham   |   Jan 7, 2020 January 7, 2020
A round of applause and a hurrah of thanks for President Donald Trump: he’s finally bringing the Endangered Species Act (ESA) the attention it deserves!

Last fall, the president announced a number of administrative “rule changes” to the ESA, changes that may sound trivial, but which attack the intent and letter of the law. Trump, for example, seeks to exclude climate science, move the goal posts on damage already done and make it easier to remove species from the endangered and threatened lists, as well as downgrade protections for many of the 1,596 species of plants and animals currently listed.

The most troubling of these rule changes in my view allows federal regulators to consider the economic impact of ESA protections, even though the law clearly states that the federal government should not consider the economic consequences. The reason: protecting endangered species means protecting their habitat, which means barring industrial interests from exploiting that habitat—which almost always implies an economic loss, or lost opportunity. What would unfold if we allow business to dominate the ESA listing process? That’s apparently what Trump wants to find out.

For context, though, let’s step back a moment and acknowledge that the ESA has been in trouble for decades, as one administration after another has failed to enforce it. The Act itself has long been endangered—a story which the media has not bothered to tell. The difference with Trump is that he is so nakedly hostile to the ESA that it’s news.

Passed in December 1973 by an overwhelming majority in Congress (it was unanimously approved in the Senate; in the House the vote was 390-12), and signed into law by President Nixon, the ESA established that federal agencies must act to prevent the loss of all threatened and endangered species in the United States. The U.S. Fish and Wildlife Service, at the Department of the Interior, looks after species on land and in fresh water. (The National Marine Fisheries Service, which is part of the Department of Commerce, has jurisdiction over marine species.) “Our country resolved to put an end to the decades—indeed, centuries—of neglect,” wrote Rep. John Dingell, the Democrat from Michigan who championed the act. “If it were possible to avoid causing the extinction of another species, we resolved to do exactly that.”

Three crucial provisions of the ESA stand out.

The first is that it gives every American citizen a say in the survival of a species. The public can petition the Fish and Wildlife Service to list species, and the service has a legal obligation to respond to those petitions in a timely fashion, and justify its decisions. And if you find that your concern hasn’t been heard, the ESA invites you to sue.

The second monumental provision of the ESA is that it disregarded business interests. The law states that “economic considerations have no relevance to determinations regarding the status of species.” Species are to be listed, in the words of Congress, “based solely upon biological criteria . . . to prevent non-biological considerations from affecting such decisions.”

The third provision concerned habitat protection. Earlier federal wildlife laws—the Lacey Act of 1900, the Migratory Bird Treaty Act of 1918, the Endangered Species Preservation Act of 1966—had proved limited in their effectiveness, largely because they defined the “take” of a species merely as shooting, trapping or collecting. The ESA enormously broadened that definition. A “taking” now included the harmful “modification” of any habitat that a species on the brink needed to live.

This represented real progress. If a species needed vast areas to breed, shelter or engage in its typical behavior, those areas could be protected. You want to put up a shopping mall or an oil drill where an amphibian or an insect or a flower faces extinction? The ESA required that industry stand in obeisance before the Fish and Wildlife Service in a process called “consultation.” If the agency, using the “best available science”—crucial language of the act—showed a development was found to threaten the viability of a species, it could issue “jeopardy decisions.” A jeopardy decision became the dreaded end of an ESA consultation. It meant you might have to take business elsewhere, and that it could be shut down overnight.

No wonder, then, that some in corporate America wanted the ESA killed from the get-go. Under Reagan, Secretary of the Interior James Watt did his best to undermine it. Oil and gas interests succeeded in working around it under both Bushes. The forces aligned against it, however, really got rolling in 2013, when a business-friendly Republican lawmaker named Rob Bishop, the nine-term representative from Utah, gained the chairmanship of the House Natural Resources Committee—which has oversight of the Endangered Species Act.

Between 2013 and 2018, Republican lawmakers introduced scores of laws to skirt, hamper and defund endangered species protections, the largest number of anti-ESA laws ever introduced in a five-year period in Congress. There were bills to amend the ESA to abandon its requirement of the use of best available science in listing decisions; allow oil and gas development on public lands free from ESA considerations; allow water diversion projects without ESA review; waive the ESA in the logging of national forests; ignore ESA procedures in the delisting of the gray wolf in the Great Lakes states, where the species is still protected; burden the Fish and Wildlife Service with added layers of expensive bureaucratic process and procedural encumbrances; and hand oversight of some of the ESA’s key management and decision-making provisions to state governments historically hostile to the act.

The push against the ESA in recent years has issued almost entirely from Western states, whose representatives held countless hearings to memorialize for the record that the ESA needed to be “reformed” and “modernized” so that it would be more amenable to corporations. Bishop, from Utah, oversaw many of these hearings. He even spoke openly about scrapping the law altogether, announcing in 2016 that he “would be happy to invalidate the Endangered Species Act.”

But repeal of the ESA, it turned out, proved unnecessary, as the Fish and Wildlife Service, under considerable pressure from the Obama White House, had been tweaking the ESA to compromise with corporate interests, and make it more “nimble”. The Obama administration, E&E News reported in 2015, “has shifted course on how the law is applied, utilizing incentives over regulations to coax industry and private landowners to save vanishing habitats.”

How did making the law “more nimble” with incentives play out? Consider the Obama administration’s treatment of the lesser prairie chicken, a ground-nesting bird that ranges in the short-grass prairies and oak shrub-steppe of eastern New Mexico, the Texas panhandle, and parts of Oklahoma, Kansas and Colorado. This is an area better known to energy conglomerates as the Permian Basin, which is rich with oil and gas. Once numbering in the millions, the population of lesser prairie chickens has plummeted to roughly twenty-five thousand birds, and they are now found in less than 17 percent of their original range.

The declining population, in free fall for decades due to rampant oil and gas drilling, prompted Fish and Wildlife to list it as threatened in 2014. As part of that listing decision, however, FWS opted to “streamline the regulatory process,” and entered into an agreement with the wildlife agencies of the five Western states where the bird is found. Those agencies, represented by the Western Association of Fish and Wildlife Agencies (WAFWA), produced a “range-wide plan” that the FWS approved. The idea was to limit the economic effects of the prospective listing and accommodate continued oil and gas drilling, wind energy development, and other industrial activities in bird habitat—that is, to preserve the status quo. The WAFWA plan was an expansion of a celebrated five-state conservation program begun in 2010 involving voluntary measures and financial incentives for private landowners and energy companies to restore and improve prairie chicken habitat.

Investigators at the nonprofits Defenders of Wildlife and the Center for Biological Diversity looked into the accomplishments of the 2010 program after it had been in effect for three years. They found its vaunted achievements were a mirage. The bird’s population declined by 50 percent between 2012 and 2013. Today, lesser prairie chickens are slowly dying out, while the Permian Basin booms.

For too long the American public has been cursed with a Department of the Interior that has been corrupted by energy, mining, agriculture, grazing and logging interests whose influence insures that critical habitat protection and recovery plans never get implemented—despite the species being listed on paper.

The statistics tell us all we need to know. More than 80 percent of all listed species have no critical habitat protection plan, and 40 percent have no recovery plan. The consequence: Only 10 percent of listed species are considered to be improving, 30 percent have been deemed “stable”—and a whopping 60 percent continue the slide toward extinction. Of the 1,618 species on the endangered list, only 2 percent have recovered enough to be removed from the list.

We can do better.

And that’s where you come in. Because the ESA hands to you, the citizens of the United States, the responsibility for protecting endangered species. Calling, emailing and texting your congressperson is fine. But more valuable is to pay your legislators a visit in their offices to demand that the law be kept intact and enforced to its original extent. A critical mass of Americans acting in solidarity in support of the ESA is needed to stop its evisceration.

Here’s my suggestion as a journalist and an activist: demand that there shall not be, nor ever be, an economic consideration for the listing of a species.

This goes beyond mere opposition to Trump, who we have to hope will be tossed from office in 2020. It’s taking the long view and realizing we’re not separate from nature. When we conserve biodiversity, we preserve a future for the generations to come.

You can find Christopher’s book This Land: How Cowboys Capitalism & Corruption Are Ruining the American West at Powell’s.