Déjà Vu All Over Again: Proposed ESA Rollbacks Threaten Wildlife

The Trump administration is seeking to reinstate four regulations issued in 2019 during President Trump’s first term that severely weakened critical Endangered Species Act (ESA) protections. These regulations curtailed protections afforded to threatened species, allowed economic considerations to be weighed when deciding whether to list a species, significantly undermined the process for designating protected habitat, and thwarted the interagency consultation process by restricting input from experts best suited to determine how federal projects affect imperiled species. The Biden administration largely restored ESA protections for species and their habitat. This latest deregulatory push seeks to once again undermine the ESA’s implementation, disrupting decades of consistent safeguards and resurrecting the most destructive aspects of the 2019 rules.

First, the administration is proposing a “critical habitat exclusion rule” that would allow extractive industries to unduly influence the process through which the US Fish and Wildlife Services (USFWS) and the National Marine Fisheries Service (NMFS) designate “critical habitat”—areas containing physical or biological features essential to the conservation of a species. Habitat destruction is the primary driver of an unprecedented rate of biodiversity loss in the United States, and preservation of a species’ critical habitat is essential to preventing extinction. The proposed rule, however, would limit the agencies’ authority to designate such habitat by adopting a more restrictive standard than the one Congress set forth in the ESA itself.

Presumptive legal protections for species listed as threatened would also be eliminated. Section 4(d) of the ESA requires the USFWS to issue regulations to conserve threatened species. It further authorizes the agency to grant full endangered species protections to a threatened species until regulations tailored to that species are in place—a provision known as the “blanket 4(d) rule.” The USFWS now proposes to leave threatened species unprotected until it issues species-specific regulations, a process often delayed for years—and sometimes never completed—due to resource constraints.

The proposal would add hurdles to the interagency consultation process whereby other federal agencies are required to consult with the USFWS and NMFS to ensure that their actions are not likely to jeopardize the continued existence of listed species or adversely modify designated critical habitat. The ESA requires use of the best available science during the consultation process. The proposal would instead unlawfully require scientific data to be entirely free from doubt.

Finally, economic factors would be allowed to influence whether a species is even listed, undermining the ESA’s unequivocal mandate that listing decisions be based solely on the best available scientific evidence of a species’ need for protection. These changes would likely increase political pressure not to list certain species and pave the way for cost-benefit analyses that de-emphasize biological science.

AWI submitted comments urging withdrawal of the proposed rules, which would diminish the effectiveness of the ESA and—in combination with the administration’s other deregulatory efforts—inevitably push more species closer to the brink of extinction.

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