Economics key in new Endangered Species Act rules
Tuesday, August 13, 2019
In the grand scheme of federal vs. state-level environmental battles, we have nearly seen it all lately. With the Department of Interior steering the helm of the most controversial environmental issues of the day, we witness a shifty and complex federal culture when it comes to environmental rules.
It’s on-again and off-again, with federal departments mainly deregulating and the federal judiciary emerging with some surprising decisions. The Trump administration appears to want to lift any restriction blocking land development; some federal judges have protected precarious rules or have challenged executive actions.
Now, nothing short of the polar bear hangs in the balance as key elements of the Endangered Species Act are up next on Trump’s chopping block.
Trump administration officials are restructuring environmental agencies and rules. For example, there’s the fight over protected land jurisdiction, which recently saw a big change as the U.S. Supreme Court’s Sturgeon v. Frost case sided with state regulations over federal protection of National Park Service land.
This case cautions those who assume that federal protections will endure state-level tests. In this case, it was the issue of state-approved hovercrafting vs. federal subsistence fishing rights.
But then states fight back in the deregulation climate, and they sometimes win. An Alaska federal judge ruled against offshore drilling in some Arctic areas. This is an ongoing dispute. Pipeline building in the New York City area was blocked by New York’s Department of Environmental Conservation.
Just as Alaska’s Gwich’in launch a legal fight against the Department of Interior’s effort to lease 1002 Area, where polar bear denning and porcupine caribou calving grounds are threatened, we hear news of the next level of attack against the Endangered Species Act.
An Aug. 12 New York Times headline reads, "U.S. Significantly Weakens Endangered Species Act." We have already been warned that Trump administration was headed down this path and now new rules will go into effect within a month.
This kind of move will create a domino effect on existing protections in other arenas, where development could be halted because of endangered species habitats. The U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration's National Marine Fisheries Service are streamlining their guidelines, addressing implementation issues that will supposedly "modernize" the ESA.
As innocuous as the "rule modernization" language seems, these changes will have serious impacts. Most shocking is that economic impacts for listing a species endangered or threatened can now be considered.
That said, climate change impacts cannot be factored into this equation: the rules will include the dubious standard "foreseeable future" when implementing protections. There are also the rule changes’ effects of making it more difficult to limit critical habitat protections and list endangered species.
If you follow Arctic National Wildlife Refuge (ANWR) drilling debates, you know that caribou and polar bears face serious problems under 1002 Area drilling lease plans. The Arctic polar bear, for example, is listed as a threatened population already.
Say concerned polar bear lovers want to consider the melting sea ice as a reason to move the species to "endangered status." New rules would have to consider the economic impact of this classification, as well as the fact that critical habitat impacts from sea ice losses cannot be considered since they are climate change-based impacts and need to employ the vague notion of a "foreseeable future."
Meanwhile, states show strong initiative in challenging deregulation, one case at a time. State attorneys general step up to the animal protections plate against these changes, planning: "... to argue that the changes were arbitrary and ignored scientific evidence; that they failed to review environmental impacts and didn't account for the public comments, as required by the law; and that they violated the text and purposes of the Endangered Species Act," per Inside Climate News.
The complex, multilayered bureaucracies of state versus federal, and inter-federal agency and branch disputes over deregulation matters promise to get more complicated in the "foreseeable future."
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