United States: Changes To ESA Regulations: How Significant Are They?

Last Updated: August 19 2019
Article by Seth D. Jaffe

How big an impact will the changes have? Well, there's no doubt that the supporters of the regulations hope that they will be substantial and the opponents are worried that they will be substantial, so we should probably assume that they will be substantial.

Commenters have flagged three particularly significant changes:

  • The agencies' determination to assess the economic impact of listing decisions.

The agencies repeatedly emphasize that they know that listing decisions must be made without reference to the economic impact of the decision and insist that nothing will change on that score. They claim that this is only an effort to improve transparency and provide information. Count me with the opponents on this one. The agencies doth protest too much. In a world where President Trump issued an executive order that essentially precludes agencies from adopting new regulations that impose new costs, without regard to the benefits that they provide, does anyone really believe that the agencies' assessments of cost will have any basis in reality?

  • The elimination of the "blanket rule" that basically protects threatened species as though they were endangered.

In a perfect world, I'd have no objection to this change. There's a reason why the ESA has different categories and there's no reason why threatened species should necessarily be treated the same as endangered species. However, the change means threatened species will in fact only be protected if the FWS issues a special rule under § 4(d). Given staffing constraints and how FWS has historically struggled to keep up with its ESA workload, does anyone want to guess how many 4(d) rules will actually get issued? I'm betting on zero until FWS demonstrates otherwise.

  • Changes in the rules on designation of critical habitat, making it more difficult to establish critical habitat in areas not currently occupied by an endangered species.

To me, this is really a scientific question, but I don't doubt that, in the majority of cases, the new rule will not be sufficiently protective. Let's take a simple example. Assume that there are only 100 individuals left of some endangered species, living in an habitat that can support 250 individuals of that species. Assume further that scientists have determined that the population will not be sustainable until there are 10,000 individuals. In this example, which I'd bet is reasonably common, it will be necessary to have available enough critical habitat for 9,750 additional members of that species. If we don't protect that habitat now, then we're never going to get back to a sustainable population.

I give the rules ¼ point out of 3 – and I'm dying to see the first economic analysis of a listing decision that this administration prepares.

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