They’re gutting the Endangered Species Act, have you heard?
A good friend of mine hired a professional photographer, at great expense, to take pictures during a planned event. Afterwards, when the finished pictures were delivered, virtually all of them were blurry, because the camera had been out of focus.
Laws are like that, too, when interpretation over a long period gets the whole purpose out of focus, leaving a blurry picture of what the law is. It’s common in government, and the poster child is the Endangered Species Act, passed in 1973 to stop the extinction of bald eagles, whooping cranes, and grizzly bears. The first endangered species list included 3 amphibians, 3 reptiles, 36 birds, 22 fish, and 14 mammals – a reasonable national goal that most people supported.
Almost all those original species are still listed, and the list has since grown to include 9 supposedly different toads, 20 different field mice, and 2,335 other species, subspecies and critters no one ever heard of. It’s a 173-page spreadsheet of birds, fish, plants, and animals in every corner of every state. No species is listed based on its current location, but instead is said to be endangered or threatened “throughout all or a significant portion of its historic range.” Hundreds have broad historic ranges such as entire river basins, coastlines, valleys, mountain chains, plains, and deserts. The historic ranges of listed species today include all terrestrial “ecoregions” in the Lower 48, all coastal zones and river basins, all of Alaska’s major regions, and all of Hawaii.
Everywhere in the U.S., there are species listed as threatened or endangered, though few people – even government officials – can explain the difference. That is one of the out-of-focus aspects of federal decisions that leave the issue blurry. Congress intended very significant differences in how “endangered” and “threatened” species are treated differently. But years ago, the government issued the “blanket rule,” requiring both categories to be treated with the same rules, restrictions, and enforcement. The first Trump Administration tried to re-establish the difference between threatened and endangered, but the Biden Administration reinstated the blanket rule, never part of the law itself. The new Administration now proposes to return the original congressional intent, and the environmental lobby is apoplectic.
The New York Times screamed, “Trump Moves to Weaken the Endangered Species Act,” though of course only Congress could do that. Other headlines echoed: “Trump puts the endangered in danger,” “Trump administration moves to roll back some Endangered Species Act protections,” “Trump ESA changes could threaten Florida whales, manatees, sea turtles,” and in the Washington Post, “This law helped save the bald eagle – Trump officials want to weaken it.”
One story nuanced the latest proposal somewhat more accurately, saying “Trump moves to roll back Biden’s strengthening of ESA protections.” Most articles, drawing no distinction between threatened and endangered, simply conclude that the Administration’s proposed rules would make it easier to drill for oil or harvest timber in listed species habitat. But that is precisely why Congress made that distinction in the first place – because activity that could lead to extinction of “endangered” species cannot be allowed, but might be acceptable for merely “threatened” species, if certain mitigating practices are adopted.
In other words, threatened species are less endangered, and require less stringent, species-specific rules, not strict prohibitions. That is Section 4(d) of the Act and “threatened” listings come with a “4(d) rule.” That is why the blanket rule is such a big deal, because it results in prohibiting activities that might otherwise be allowed under careful regulation. It treats “threatened” and “endangered” species the same, contrary to law.
The Administration proposes returning to the original intent. That is more than just supporting domestic production of energy, timber, and agricultural products. It is about stopping the unintended – dare I say illegal – use of the otherwise popular Endangered Species Act as a hammer to stop everything. The new rules would at least allow consideration of the costs vs. benefits of species decisions and rescind the blanket rule. That would end the lazy approach, which is to ban the widest range of developments, stop industrial projects, and use species as the biggest tool in the toolbox for banning anything and everything.
Activists shriek about killing Woodsy Owl and Bambi, but to me, this isn’t about ending legitimate and necessary species protection and recovery, which we all support. It is rather a long-overdue response to a badly out-of-focus system, to provide a more clear picture of what is required and expected.
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