Swamp Stomp

Volume 15, Issue 23

President Obama has received rare support from Republicans, industry groups, and states for his changes to the Endangered Species Act. The joint rulemaking by the Fish and Wildlife Service (FWS) and National Marine Fisheries Service would make decisions regarding the Act more efficient, collaborative, and transparent to the public. Democrats also hope that the changes will help mitigate conservatives in Congress who have vowed to overhaul the ESA.

Despite the law preventing over 99 percent of listed species from going extinct over the last four decades, those who criticize the law in Congress claim that it has failed to recover all but roughly two percent of endangered species.

The new rule proposed on May 19, 2015, creates a higher standard for petitions filed under the law to list new species as threatened or endangered, to change the species’ status, to delist species, or to change the boundaries of critical habitat. This will allow the agencies to focus more attention on species that truly warrant action.

Previously, either agency had 90 days to decide whether any of the petitions received contained sufficient information to indicate that action—either listing or delisting—was necessary. If a decision was made in the affirmative, then an additional twelve months was allocated to decide whether or not to propose a listing rule.

However, the sheer volume of petitions submitted by environmental groups in recent years has exceeded FWS’s capacity to respond to them, and has often landed in the agency in court. In the four years before signing a sweeping legal agreement with two separate green groups in 2011, the agency received petitions for over 1,230 species—a number that is just shy of the total amount received in the last thirty years.

In attempts to do away with “mega-petitions,” such as the one submitted by the Center for Biological Diversity and other environmental groups in April 2010 that listed 404 species, this new rule limits petitions to just one species at a time. “Mega-petitions” were often vaguely written and difficult to follow. This new rule requires that all petitions be organized on a species-by-species basis, so that each species can be given the attention it deserves.

Furthermore, petitions must now contain clear documentation of the threats to wildlife. Relevant information includes the following:

• Literature citations that are specific enough for the agencies to find the information, including by page and chapter.
• Electronic or hard copies of any supporting materials such as publications, maps, reports and letters cited in the petition, or valid links to public websites where the information can be found.
• Information demonstrating that the petitioned wildlife meets ESA’s definition of a “species.”
• Information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available.

 

If a petition is missing any of this information, then FWS will be able to return the petition.

The new rule defines “substantial scientific or commercial information” as information that “a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted.”

“For example, a petition that states only that a species is rare and thus should be listed, without other credible information regarding its status, does not provide substantial information,” it says.

The rule also states that for a failed petition to be resubmitted, it must contain new information in support of its claim. It says, “These changes would improve the quality of petitions through expanded content requirements and guidelines; and in doing so; better focus the Services’ energies on petitions that merit further analysis.”

Speaking about the rule, Ryan Yates, Chairman of the National Endangered Species Act Reform Coalition and Director of Congressional Relations at the American Farm Bureau, claimed, “While we are still reviewing the substance of the proposed rule, NESARC is pleased to see the Services recognize and take action to deter abusive petitioning practices. Requiring more detailed information as part of the submission of petitions and consultation with states will ensure that a more robust record is placed before the services.”

However, Rob Bishop, the House Natural Resources Committee Chairman, was more suspicious of the rule. He said, “The Obama administration admitted today that the process by which Endangered Species Act listing determinations are made is insufficient, and then asked the American people to trust them to fix the problem. I don’t buy it.”

Bishop’s concern was mirrored by Brian Seasholes, who directs the endangered species project at the libertarian Reason Foundation in Los Angeles. He said that the rule was “an extremely marginal step in the right direction. But the larger problem still remains that the Endangered Species Act harms conservation through its punitive approach.” He is concerned that the rule leaves federal wildlife managers with too much discretion, and fails to address the hundreds of species for which FWS is already issuing listing determinations.

While the step may not be all that is needed, it is an important step that all involved parties are happy to see be taken.