Law Street Media

At Biden’s Behest, Agencies Roll Back ESA Regulations

A variety of seafood on ice.

Close up of cooled seafood - trout, sockeye, sea bass, in the market of a fish shop, supermarket, horizontal frame, side view

Last Friday, the U.S Fish and Wildlife Service (FWS) and the National Marine Fisheries Service announced their plan to revitalize provisions of the Endangered Species Act (ESA). The news follows issuance of Executive Order 13990, which instructed all federal agencies to review and address actions taken during the Trump administration, including eleventh-hour rule changes, that clash with Biden-Harris administration objectives, like climate change mitigation.

The services said they intend to alter five ESA regulations in the coming months, starting with  a reversion to the previously existing, more rigorous process for considering exclusions to endangered species’ critical habitat designations. Next, the federal government seeks to rescind the definition of “habitat” that was proposed last August and finalized in December. According to the press release, and pursuant to a 2018 Supreme Court decision, the agencies do not need to have a habitat definition to comply with the law.

The services also intend to modify regulations for listing species and designating critical habitat, as well as those governing interagency cooperation. Finally, the FWS proposes reinstating a “blanket rule” that, by default, will extend protections afforded to endangered species to those listed as threatened.

According to a press release issued by the Center for Biological Diversity praising the plan, the services’ proposal does not address one Trump-era rule relating to critical habitat consideration. The previous administration’s directive cancelled the requirement that agencies contemplate how federal actions “adversely modify” critical habitats.

Under that rule, the Center explained, federal actions are not curbed unless they impact a species’ entire habitat rather than just a subset thereof. As such, it reportedly ignores the “cumulative ‘death-by-a-thousand-cuts’ process” by which most species move toward extinction, the press release stated.

“With these promised revisions to the listing, critical habitat and consultation rules, the devil will be in the details,” said Noah Greenwald, endangered species director at the Center. “But that’s a fight for another day and for now, we’re elated the Trump administration’s misguided and ill-timed attacks on endangered species are on their way out.”

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