Trump administration narrows Endangered Species Act protections

In almost every poll we’ve ever conducted, farmers and ranchers say they deal with too many regulations and “red tape.” So, it was not entirely surprising the Trump administration recently delivered another form of regulatory relief.

The most recent “roll back” involves the Endangered Species Act and would open up more land for ranching, logging, oil and gas drilling, mining and other types of development on parts of the United States with critical wildlife habitats—much to the dismay of wildlife advocates and environmentalists. If the critics have their way, the move could still end up in court.

Removing definition of “harm”

The Trump administration finalized a rule narrowing the prohibition against “taking” endangered species by removing regulatory language allowing federal wildlife agencies to consider how species are harmed by habitat destruction.

The Commerce and Interior Departments on July 10 announced the finalization of the rule, which rescinds the definition of “harm” in current ESA regulations, limiting enforcers’ consideration of actions affecting the environment around the species, like logging.

“For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses,” said Department of the Interior Secretary Doug Burgum. “That approach turned routine activity into a regulatory trap, drove up costs that impacted people’s lives, and expanded federal authority beyond what Congress intended. This action restores common sense, respects private property, provides much-needed certainty for landowners and follows the statute Congress actually passed.”

Current rules make it illegal to take listed species without authorization. The statute defines “take” as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect such animals. Previous regulations have assigned definitions to some of these concepts, including harm, which previously meant “an act which actually kills or injures wildlife,” including “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, breeding, feeding or sheltering.”

While some agricultural producers’ activities may affect habitat of endangered species on or near their farms, the change would make it less likely they would face penalties for modifying habitat. 

The agency first proposed rescinding the definition last spring. In their proposal, agency leaders pointed to the 1995 Supreme Court decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon in which the Supreme Court upheld the FWS regulation using Chevron deference, a doctrine that required courts to defer to agency expertise when laws from Congress are not explicit. The court overturned Chevron last year.

“We have concluded that our existing regulations, which still contain the definition of ‘harm’ contested in Sweet Home, do not match the single, best meaning of the statute,” they wrote, adding that the regulations’ interpretation of the statutory language “did not properly account for over a thousand years of history, and is inconsistent with the structure of the ESA.”

They added that the ESA defines the broader definition of “take,” and “further elaborating on one subcomponent of that definition — “harm” — is unnecessary in light of the comprehensive statutory definition.”

“The ESA’s core protections remain firmly in place. Actions that directly injure or kill listed wildlife will continue to be prohibited. Existing permits and incidental take statements remain valid and unchanged. What ends today is a system that repeatedly punished people for indirect or speculative impacts never contemplated by Congress,” noted the Interior Department in a release.

Lawsuits ahead?

Environmental and wildlife groups complained that final rule goes too far and that they intend to fight back in the courts.

“The administration’s erroneous and nonsensical interpretation of the term ‘harm’ guts the ability of the Endangered Species Act and the federal government to protect the habitat of wildlife already at risk of extinction because the places they live have been destroyed or fragmented,” said Andrew Bowman, president and CEO of Defenders of Wildlife.  “We intend to fight back with the full force of the law to defeat this attack and innumerable others by the administration on the statutes and regulations that protect America’s cherished wildlife.”

Defenders of Wildlife pointed out that, “for more than four decades, the definition of “harm” has served as a cornerstone of ESA implementation and enforcement, ensuring significant habitat modification or degradation that kills or injures listed species by impairing essential behaviors like feeding, breeding and sheltering are appropriately authorized and mitigated.  

Editor’s note: Sara Wyant is publisher of Agri-Pulse Communications Inc., www.Agri-Pulse.com.