As Congress has ceded more and more power to the Executive Branch, it has become custom for policy to flip quadrennially or octennially with the change of administration. But not every policy flops. A proposed Endangered Species Act reform may represent a rare point of agreement across presidential administrations.
A week before inauguration day, the U.S. Fish and Wildlife Service and National Marine Fisheries Service proposed a rule concerning when agencies must consult the Services about the effects of their programs on endangered and threatened species, leaving to the next administration to review comments and make a final decision. The proposal responds to the Ninth Circuit’s controversial 2015 decision in Cottonwood Environmental Law Center v. U.S. Fish and Wildlife Service.
The Endangered Species Act requires agencies to consult with the Fish and Wildlife Service or the National Marine Fisheries Service over projects that may adversely affect listed species or their designated critical habitat. This process can substantially delay projects and increase the expense of federal projects, costs that are in an ideal scenario more than justified by benefits to the species. In other circumstances, however, this red tape can increase costs for federal land managers without any compensating benefits.
Cottonwood held that a new species’ listing or critical habitat designation triggers consultation not only for future projects that may affect them but also for long-established policies that have no on-the-ground impacts. A forest plan, for instance, sets general management objectives for a forest unit. When the Forest Service later undertakes a project to achieve these objectives, it must consult at that stage (when the likely impacts and feasible alternatives are easier to assess in detail). Nonetheless, Cottonwood holds, the agency must bear the time and expense to redo consultation over the forest plan, in addition to any future projects.
This, according to a Supreme Court petition filed by the Obama administration, “has the potential to cripple the Forest Service and BLM’s land-management functions, and to impose substantial and unwarranted burdens on FWS and NMFS.” It can, for instance, put on hold a wide range of projects needed to improve forest health, reduce wildfire risks, and take other steps to manage federal land.
Public comments on the proposed rule suggest this reform is less controversial than other Endangered Species Act reforms. Although several environmental litigation groups oppose the change, other conservation groups, states, and industry expressed strong support. The Wildlife Society, for instance, commented that the proposed change would “reduce the workload on wildlife professionals while continuing to ensure that the consultation process—a cornerstone of the ESA—functions to protect listed species and habitat.”
The final decision on the proposal could have significant effects on the Biden administration’s plans to use federal lands to increase renewable energy development and to achieve other goals. Excessive bureaucracy, even from well-intentioned environmental regulation, can be a barrier to all sorts of changes, regardless of the intent or politics behind them.