If you're outraged about the Trump administration's weakening of how the Endangered Species Act is applied, take comfort in knowing that legal challenges are coming that should clarify to what extent the federal government can minimize protection of rare plants and animals.
Nobody should be surprised that the administration has gone this route. President Donald Trump ran on a platform of deregulation and has already targeted protections for water, air and public lands. As the saying goes, elections have consequences and Trump is only doing what he said he'd do.
But it's timely to point out that in Colorado, the governor is facing the prospect of a recall for fulfilling a campaign agenda full of progressive positions. He's been targeted for signing the National Popular Vote bill, the "red flag" gun law and for authorizing an overhaul of oil and gas regulations. Polis is the governor he indicated he'd be if elected. Trump supporters in Colorado who are cheering the administration's rewrite of U.S. environmental laws should take a moment to appreciate that Polis and Trump are basically doing the same thing at opposite ends of the political spectrum. Logic dictates consistency in how those executive machinations are received.
At any rate, we're neither surprised nor overly disturbed by the administration's action regarding the Endangered Species Act. This administration hasn't knocked itself out enforcing the law. For example, as the Wall Street Journal reported, the Trump administration has never added more than 11 species to threatened or endangered lists in one year, and added just one in 2019. The Obama administration averaged 49 a year.
The Endangered Species Act was enacted in 1973 under President Richard Nixon. Species preservation was first established by Congress in 1966, along with the Land and Water Conservation Fund in 1965 to acquire land and waters for the preservation of species that are threatened with extinction. It's been the primary tool used by the U.S. Fish and Wildlife Service and the National Marine Fisheries Services for more than 50 years to protect threatened or endangered species.
The changes announced Monday won't apply to species now considered threatened or endangered. But they will put new restrictions on how future assessments are made and add restrictions on which areas can be designated as critical habitat — changes which conservation groups say clear the way for more resource extraction and development.
The changes also make it easier to remove species from the endangered list and reduce protections for "threatened" species. For the first time the federal government will be able to raise the potential economic cost of listing a species, which isn't supposed to factor into listing decisions. Naturally, critics are questioning why this information should be included, saying it creates a cost-benefit scenario when the only question the law contemplates is how close a species is to the brink of extinction. It's important to note that in a landmark decision in 1978 (Tennessee Valley Authority v. Hill) the U.S. Supreme Court found that the "plain intent of Congress in enacting" the ESA "was to halt and reverse the trend toward species extinction, whatever the cost."
Two states have already promised lawsuits to try to block the changes in how the law is administered. This is where the rubber meets the road. The administration can't change the law — only the rules by which it enforces it. And the courts will determine if these rules advance the intent of the law or are "arbitrary and capricious" and must be set aside.
In our view, these changes jumpstart a needed judicial review of a law, that despite the best intentions, has been needlessly onerous at times. Nevertheless, the potential impacts are far-reaching and should be carefully considered during the judicial review process.