Is the Endangered Species Act under Threat?

Resources Radio: Before we dive into the Endangered Species Act (ESA), can you tell us how you first got interested in environmental issues?

Ya-Wei Li: There's actually a one-word answer that you probably don't get a lot, and that answer is: snakes.

I grew up in the East Village in New York City, where there aren’t many natural areas; Central Park was about as natural as it got in Manhattan. But probably about 30 years ago, I developed a fascination with snakes, and I've been keeping snakes for about three decades. And that is what got me interested in wildlife conservation and why I'm here today—it really started with this childhood fascination with a particular type of critter, and that of course expanded to other things like freshwater fish, and I kept turtles and all sorts of things. And I eventually became passionate about the natural world and conservation, especially after I got a car and was able to drive around. There wasn't much of an opportunity for camping or Boy Scouts or hiking in the wilderness in the middle of one of the largest cities in the world, so I made do with what I had.

Can you give us a little bit of historical background on the ESA? It was signed in 1973 by President Nixon, and I noted that it passed both the Senate and the House with overwhelming majorities—it passed unanimously in the Senate. When the law was originally passed, what was it intended to accomplish?

The law was passed in response to a growing recognition among the American public and lawmakers that we were facing an extinction crisis. A number of species, both in America and overseas, were going extinct, and oftentimes because of human activities.

The Endangered Species Act was passed with really broad support—and it still enjoys that support among the American public today—with two main goals. The first, and the most urgent goal, is to prevent extinction. This is the crisis—the fire that we want to put out. And that's what animated Congress to pass legislation with prohibitions on certain human activities, in order to prevent species from sliding further into extinction.

But preventing extinction isn't enough, right? Because if you just have a species that's at the very edge of going extinct, that's not really what we would call success. That's why the Endangered Species Act has a second primary goal: to recover species to the point that they're secure in the long term. And if they can be secure in the long term, then the federal government can return the management of that species back to the states, which had legal authority over the species before it became listed under the ESA.

Oftentimes, people also talk about conserving ecosystems or conserving habitat. My view is that conserving habitat and ecosystems are probably the primary means by which we can recover species, because for most species, we're not going to be able to get them to the point of recovery without protecting and managing their ecosystems.

I’ve gotten the sense that people have very different views about how successful the ESA has been to date. Can you give us some perspective on some of the historical successes the ESA has achieved, along with some of its shortcomings?

The act's success or lack of success is probably the most debated topic under the Endangered Species Act today. Let's take a minute to unpack what that really means.

For those who want to reform to act, they'll oftentimes emphasize that the act has recovered only about two percent of the nearly 2,350 species that have been listed. To some, a two percent recovery rate looks like a failure. After some 45 years, why do we only have 55 species that are recovered?

On the other side of the argument are those who resist reforms to the Endangered Species Act—typically conservationists—and they emphasize that the Endangered Species Act has been something along the lines of 95 to 99 percent effective at preventing extinction. They're looking at success using a completely different metric: not what's been recovered, but rather how many species are still with us today. And that's an astounding number. I mean, it really is remarkable that we've lost very few species after 45 years.

My perspective is that we're missing a huge chunk of the species by looking only at those two extremes. On the one hand, you can look at the two percent of species that have been recovered. On the other hand, you can look at the roughly three to five percent of species that have gone extinct. My question is, what happened to the 95 percent of species in the middle? It’s those species that are the focus of the day-to-day work of the Endangered Species Act.

And unfortunately, there just aren't good stats on how those species are doing. Are they moving closer to recovery? Are they moving further away from recovery? Are they stable? We have information here and there on particular species, but across the board, the US government doesn't keep good records of how the vast majority of species are doing on a year-to-year basis.

The best information we have today is actually a study that I was part of a few years ago, where we looked at some long-term trends using some imperfect data that the government had been collecting. And what we found was actually fairly disappointing. We found that roughly half of all listed species were still in long-term decline after being listed, and only roughly 30 percent of them were stable or improving.

So, my assessment is that the effectiveness of the ESA is mixed. We have had some great successes to date. The California condor is still soaring, American alligators have recovered, but we have a lot—a lot—of species that are slipping through the cracks. A bunch of Hawaiian plants are down to just a handful of individuals left.

It’s interesting to note that the ESA doesn’t just relate to animals; it applies to vegetation, as well.

That's a really interesting point, because what you see on a front page of the New York Times or the Washington Post—the poster child of endangered species—will usually be an animal. Most people do not know that 57 percent of all US-listed species are plants.

Before we talk about the proposed changes to the ESA that the Trump administration has announced recently, are there changes to the act or its implementation that you think would be particularly valuable?

I have a very, very long list of possible improvements, but let me pick one or two ideas—especially ones that your listeners might not have heard much about.

The first one I'd like to start with is that I would really like to see the government make much better use of technology to improve how it administers the Endangered Species Act. For example, there are great opportunities to use satellite images, including the ones that you can find on Google Earth, to monitor the condition of habitats for endangered species and to determine whether people are actually violating the Endangered Species Act.

Another opportunity is our mobile phones: we can use these technologies to expedite the process of enrolling conservation agreements for private landowners. If you think about how you file your taxes, it’s much easier than 20 years ago, when we were filling out paper forms, easily cutting down the number of hours we need to file taxes. In terms of enrolling landowners in endangered species agreements today, we're still doing it the old way. It can be cumbersome, and it's hard to track all the paperwork. If we can use technology like mobile phones and the internet to lower the "hassle barrier" for private landowners, we're much more likely to get them to voluntarily sign up to these agreements and carry out conservation measures that are needed to recover species.

The federal government is really under-resourced; it simply doesn't have the capability of going out in the field and monitoring the thousands—really, the tens of thousands—of projects that are being permitted under the Endangered Species Act. But technology can increase the efficiency of how we carry out the ESA, and therefore allow us to do more with the same amount of resources.

Let's move on now to the changes proposed to the ESA by the Trump administration. I know these have gone through at least one round of public comment already, so there have been some changes to the changes, themselves. Without going too much into the weeds, can you give us a sense of some of the most important changes in the proposals that are currently on the table?

A lot of what I've seen reported is inaccurate or just plain wrong. So, I urge your listeners to take with a grain of salt some of the media stories about the consequences of these regulations. In particular, I've seen a lot of fairly apocalyptic claims of the regulations entirely uprooting the foundations of the Endangered Species Act, and I just don't believe that's correct.

The regulations form a fairly mixed bag. There are some bad things, there are a whole bunch of really boring things that we won't talk about, and there are one or two things that will make some marginal improvements to conservation.

With that said, let me answer your initial question, which is, what are some of the main elements in this set of regulations? I would highlight four or five.

First, according to the final regulations, the federal government will allow itself to gather and publish information on the economic impacts of listing a species. This is super, super controversial because the decision on whether or not to list a species is supposed to be based entirely on science and biology. And it's really clear, as everyone agrees—even the Trump administration—that the government cannot consider economic impacts as part of the listing decisions.

But what they're going to do is something somewhat different, which is that they'll publish the economic impacts for the public to see. And they're basically saying, “We won't use that information as part of the decision; we just want to let the public see what the economic impacts are.” I see two problems with this: First, it's really hard to blind yourself to the economic impacts if you're a federal agency and pretend like you're not considering them, when you're releasing them simultaneously with your decision. And second, it really adds more fuel to the fire. A lot of endangered species decisions are already incredibly controversial, and putting out what I view as a fairly biased economic impact analysis—which is only going to focus on the negative economic impacts, not the positive ones—is really not going to be helpful for conservation.

The second main element of the new regulations is that the government has now removed automatic protections for species listed as what's called "threatened" under the Endangered Species Act. There are two categories by which a species can be listed: threatened or endangered. For the lesser category of threatened, those species will no longer get automatic protections; instead, the government has to decide on a case-by-case basis whether or not to extend protections to threatened species, and if so, which specific types of protections. This approach creates some risk that a species may not get as much protection as it needs, so it’s been quite controversial.

The third big change is around what's called “critical habitat,” which are habitats that are needed to recover species. The short story on this is that it will become much harder to designate as critical a habitat that a species doesn't currently occupy. This concept of unoccupied critical habitat was the central issue in last year's Supreme Court case. Some of your listeners might remember that Weyerhaeuser case, which involved the habitat for the dusky gopher frog, which lives in the southern United States. The federal government designated unoccupied habitat for this species. It was really controversial, and the landowners brought the case all the way up to the Supreme Court. Basically, the Trump administration is responding to that by tightening up the ability to designate unoccupied critical habitat.

And the last thing I'll mention is that there is a new definition of how far into the future is "foreseeable" when it comes to deciding whether or not to list a species as threatened. This concept of “foreseeable future” has a lot of bearing on whether climate change is considered as part of a listing decision—and if so, how.

This is what you're going to see a lot of in the news, and these are some of the big-ticket items.

It sounds like, broadly speaking, most of those big-ticket items would be less protective of species, rather than more protective. Is that a fair characterization?

Yes, I would say that of the items I identified here, probably half of them will certainly result in less protection, to some degree (Figure 1). I don't think it's apocalyptic in terms of completely gutting the Endangered Species Act, but absolutely, the regulations are going in the direction of less protection.

And then the other half is really a wait-and-see, honestly. That's my most objective assessment. It really depends on how the federal government will implement these new definitions.

And because the federal government has retained for itself so much discretion in how it interprets concepts like “foreseeable future” and how it issues protections for threatened species, we're really going to have to track what happens on a case-by-case basis. And that's something that my organization is going to be doing, so stay tuned for updates.

You’ve mentioned that it’s a mixed bag. Are there any elements in the proposals that you think are positive steps? Are there any that you would highlight as particularly useful changes that would improve species or habitat protections?

There's really nothing that I would applaud and say, “This is a progressive stance that will make species recovery easier and better.” But there are a handful of things that will make marginal improvements to certain aspects of the Endangered Species Act. In particular, those improvements focus on something called the Section 7 Consultation process.

It's actually one of the most important parts of the Endangered Species Act—under Section 7, every federal agency is required to consult with expert wildlife agencies to ensure that their federal actions aren't going to jeopardize a species or destroy the species’ critical habitat. For example, if the Army Corps of Engineers wants to fill and dredge a federal wetland, or build a bridge or highway, they have to speak with the US Fish and Wildlife Service to ensure that the destruction of the wetland doesn't jeopardize an endangered species. Every year, roughly 10,000 projects go through Section 7 review, and a few of the changes to the ESA will expedite the review process for federal agencies.

So that's good, right, because it's essentially creating an incentive for a federal agency to say, “If we try to reduce the harmful impacts of our activities up front, we will get a benefit by having a faster Section 7 review process—our project will move forward more easily.” And that's really important, if we think about the need to repair our infrastructure in America, because a lot of these infrastructure-repair projects will have impacts on endangered species and their critical habitat.

That's the main positive thing that I see from this rulemaking.

You've already mentioned a few things from the more negative, less protective side, but are there any more negative aspects of the proposed changes that you'd like to mention or anything else you’d like to highlight?

Sure, I'll just mention one more: In this Section 7 Consultation process we just talked about, a developer oftentimes needs to offset the harmful effects of their projects. Under the new regulations, that developer no longer needs to provide a specific plan showing that he or she will carry out those offset measures. So, it becomes very much an honor system.

I view that as really problematic, because the federal government almost never has had enough money to to track whether commitments and promises are actually being followed up on. And under these new regulations, there's even less of a requirement to show up front that you're serious about actually following through on your promise.

These proposals are certain to be challenged in court, if they haven't been already, by various state attorneys general. Do you have thoughts on the prospects for these cases in the federal court process? Will the cases hold up, or will they be struck down?

I do have an initial view based on reading the over 300 pages that were released to outline the recent proposed changes to the ESA: nothing jumps out to me as a slam-dunk legal argument.

There are certainly good arguments that the state attorneys general can make, and they've already made some in their comment letters last summer on the proposed regulations. But I do think this administration, in particular Secretary Bernhardt, has been pretty savvy legally to ensure that the changes don’t put anything forward that is too patently illegal.

Let's close out this interview now with our “Top of the Stack” question, which asks, what's at the top of your literal or metaphorical reading stack?

I will recommend the best nontechnical book I've ever read on the ESA—and I've tried to read as many books as I can on the subject.

It's called Noah's Choice: The Future of the Endangered Species Act, by Mann and Plummer. I think it’s exceptional because it talks about the very difficult work of doing endangered species conservation when you have political and economic pressure from developers. It's not trying to vilify anyone—the book is saying that land development gives us wider highways, housing developments, and other things we need in our daily lives. But development also has impacts on endangered species. So, how do we balance these trade-offs? That is a perennially difficult question, and one that, if someone takes too extreme a view on the ESA, they sort of miss and think that the act is about saving every last population. In an ideal world, that would be great, but I think the politics of the ESA will not support such an extreme approach. Noah's Choice grapples with these very difficult tradeoffs more effectively than any other book I’ve read.