The Endangered Species Act is endangered.
The 43-year-old law is under attack from the Republican Party and it’s not clear if and how it will survive the onslaught, especially with President Trump in power. Conservative members of Congress already deny climate change, dismiss the EPA, and are itching for more fossil fuel production—but what could they possibly have against a law designed to protect imperiled plants and animals? This is the very law credited with saving the Bald Eagle—the national emblem of the United States—from extinction, after all.
On Wednesday, Feb. 15, the Senate Committee on Environment and Public Works is holding a hearing entitled “Oversight: Modernization of the Endangered Species Act”; the latest development in an ongoing GOP campaign to try and rollback the power of the Endangered Species Act. Wyoming Sen. John Barrasso, an outspoken critic of the law, is the new committee chairman, and he's likely to pick up where his predecessor, climate change denier Jim Inhofe (R-OK), left off.
The Senate hearing comes during the same week that the chamber could potentially vote on the nomination of Oklahoma Attorney General, Scott Pruitt, to serve as EPA Administrator. Pruitt is no friend of the environment, and has made clear that he aims to limit the EPA's scope, a position that falls in line with rest of Trump's fossil fuel-friendly cabinet. The ESA panel adds to a long list of worries environmentalists and conservationists have with the Trump administration.
The Endangered Species Act is one of the government’s most powerful conservation tools, and that’s what Republicans don’t like about it. It can obstruct economic development and be burdensome for landowners and others to accommodate.
"I'm not sure what people really mean by 'modernizing' in this era of political double-speak," said Amy W. Ando, an agriculture professor at the University of Illinois at Urbana-Champaign. "It surely would depend now on whether a Republican or Democrat was talking. Republicans once supported common sense environmental protection and nature conservation—Teddy Roosevelt created the National Parks, Richard Nixon signed the Endangered Species Act into law, and George H.W. Bush signed the reauthorization of the Clean Air Act that created the innovative new provisions to cut acid rain."
Ando said the current slate of environmental bills in Congress presented by the GOP "have taken an ideological stance against all conservation and environmental protection."
"I don't think any sensible progress on improving conservation policy is possible under the current administration and Congress," she said. "A thoughtful revision of the ESA would require a Congress and executive branch that is genuinely interested in limiting the harm done to nature by unfettered use. Until we have such a government in place, the best we can do is to hold on to the law as it currently exists."
Get What You Pay For
Rob Fischman, a professor at the Indiana University Maurer School of Law, said that while landowners and business are often justifiably aggrieved when their enterprises are constrained by government regulations to protect species, there are likely no better options.
"If the federal or state governments are not willing to pay for habitat or loss of profits, then regulation is the only effective substitute," he said. "If a hearing proposal involves pulling back the federal ESA regulatory regime but does not promote state regulation or money to induce changes in private behavior, then the proposal cannot credibly claim to promote biodiversity protection."
Fischman said that one interpretation of the effort to weaken ESA protections is to attribute hearings such as the one on Wednesday as "forums for stepping back from a U.S. commitment to avoid extinctions."
"Perhaps there will be an honest discussion about whether the federal government should continue to limit federal actions that would otherwise jeopardize the continued existence of a species," he said. "However, I expect that legislators seeking to weaken the statute will pledge commitment to the principle of extinction-prevention. Instead, they will say that their preference is for states to take on more responsibility for biodiversity conservation."
However, Fischman points out that very few states have statutes as strong as the ESA with respect to activities that harm imperiled species, and if they were going to successfully take the reins from the federal government, "they'd need to enhance the authority of their own agencies to require permits where habitat altering private activities take place."
That's a highly unlikely prospect in the current anti-government, anti-regulation environment, and Republican leaders at the state level are already joining into the fight to diminish the Act—in January, 14 state attorney generals sent a letter to Trump urging him to repeal certain parts of the law that they say were unlawfully expanded under the Obama administration. According to the Center for Biological Diversity, the Endangered Species Act has been attacked at least 303 times since 1996, with most of these occurring over the last five years.
Approximately 2,270 species are listed as endangered or threatened under the ESA. If Republicans get their way it will be harder to add species to the list—and that’s just one of many changes that could take place.
Patrick Parenteau, an environmental law specialist at the University of Vermont Law School, said that rather than "modernizing" the Act, so far all he's seen is "weakening" in the form of making it harder to list species, designate critical habitat, prevent habitat loss, and even base decisions on sound science.
He said Republican leaders have come out so strongly in favor of changing the ESA because "it gets in the way of development and activities that destroy habitat and frustrates narrow but politically powerful economic interests."
Ando, Fischman, and Parenteau agree that the ESA could be improved upon in a number of ways. It could use more funding; have more financial incentives for private conservation; have more focus on wildlife connectivity and corridors; increase aid to states to implement conservation programs; and include more conservation across political boundaries, to name a few.
"The ESA could be made more effective," said Ando. "Currently, a species can't be protected under the ESA unless it is in dire danger of extinction, and protections must stop once the species population recovers."
But, Ando continued, threat of extinction is just a symptom of a problem with how people are using nature overall by "developing too much land, taking too much water out of streams, and so forth."
"It would make more sense to control actions like land conversion and water use before problems get so bad that a species is on the brink of disappearance, and it would make sense to keep controlling those actions that degrade habitat even if a bad situation has been corrected so that a previously threatened species has recovered," she said.
A Sign of the Times
There's a lot to the idea of keeping wildlife off the list in the first place.
"The ESA only protects a small proportion of declining and rare species of wildlife," said Fischman. "When we focus too much on ESA reform, we are missing the larger picture that states need incentives to ramp up programs to prevent species from declining to the point that they need protection under the ESA."
With Republicans in power, the focus is being directed away from many of these conservation-centric measures and towards something much less impactful.
J.B. Ruhl, a Vanderbilt University law professor considered a leading expert on the act, recently told The Associated Press that “simply by striking a few key words from the law, it could be transformed from a tool to protect huge areas of habitat for imperiled species into little more than limits on hunting for protected animals.”
This is a far cry from why the Act originally passed in 1973 during Richard Nixon’s administration with near unanimous consent from Congress.
Even with the protections in place, the intervening decades have not been good for wildlife, to say the least. Environmental degradation, climate change, pollution, and a number of other factors have ushered in what many are calling the sixth mass extinction.
One recent report found that by 2020 the number of vertebrates on Earth (aside from humans) could have fallen by two-thirds since 1970.
During the environmentally friendly Obama administration, only 15 species of plants and animals were taken off the ESA list due to recovery. This may not seem like a lot, but only around 34 species have been delisted for recovery in the entire history of the Act. Ten species have been delisted because they went extinct.
Human behavior continues to drive the decline of wildlife populations globally. We are all guilty of this in some way, but gutting the Endangered Species Act shows just how far out of touch with the planet those running this country really are.