The U.S. Fish and Wildlife Service has recently proposed changes to the interpretation and application of the Endangered Species Act (ESA).
"Generally, we’ve seen quite the seesaw trend in ESA regulations," said Kent Holsinger, an attorney and legal expert on the Act. "The Obama administration was prolific with changes supported by the environmental community. The Trump administration narrowed the scope of several of those regulations. Now, the Biden administration is swinging back the other direction."
For example, the Trump administration sought to define “habitat” for the purpose of critical habitat designations as where the species is currently living.
"Listings and delistings were to consider the current range of the species rather than some guess at what the historical range may have been 200 years ago," Holsinger said.
In early June, the Department of Interior issued a press release announcing that the U.S. Fish and Wildlife Service had proposed a new "interpretive rule" that would change the way the Endangered Species Act is administered. Citing "climate change" and the "growing extinction crisis," the release said that the proposed changes would permit the federal government to introduce endangered species to geographic areas that were not included in those species' historical ranges.
The Endangered Species Act is a federal law passed in 1973. The law empowered the federal government to add species of animals and plants to a list of "threatened and endangered species" and take appropriate action to ensure those species would recover to healthy levels of population.
"The ESA has always bred litigation," Holsinger said. "From our research, we know that Center for Biological Diversity (CBD) and WildEarth Guardians (WEG) alone have filed well over 1,300 lawsuits primarily using the ESA and often over missed deadlines that result from petitions that these groups themselves submit. They collect taxpayer-funded attorney fees for their trouble. This cottage industry has been lucrative. In these past several years, WEG has grown to where they now employ as many attorneys and paralegals as their staff altogether used to be."
Holsinger cited a recent U.S. Supreme Court decision that restricted the authority of the U.S. Environmental Protection Agency to regulate power-plant emissions.
"It is vital because the framers believed that a republic — a thing of the people — would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable 'ministers,'" Justice Neil Gorsuch wrote in a concurrence of the majority ruling. "From time to time, some have questioned that assessment. But by vesting the law-making power in the people’s elected representatives, the Constitution sought to ensure 'not only that all power [w]ould be derived from the people,' but also 'that those [e]ntrusted with it should be kept in dependence on the people.'”
