Earlier this week, a federal court in California threw out several Endangered Species Act (ESA) rules adopted during the Trump administration. One of the rules required regulations to be tailored to the needs of threatened species, which face relatively remote risks, rather than subjecting them to the across-the-board regulations Congress designed for endangered species. Under this rule, regulatory restrictions relax as species recover which encourages private landowners to conserve habitat and rewards successful recovery efforts.
“The district court’s decision striking down several ESA rules is a huge blow to conservation and the rule of law,” said Jonathan Wood, PERC’s vice president of law & policy. “The threatened species rule promoted recovery by aligning the incentives of private landowners who provide habitat with the interests of rare species. This is precisely how Congress intended the ESA to operate. By casting aside the rule, the Court restored an approach that ignores the specific needs of threatened species and that has failed to recover species for nearly 50 years.”
This decision will also have repercussions far beyond the ESA. The court asserted the power to strike down agency rules by mere fiat, without any need to consider whether rules are lawful or should be struck down. “Earlier this year, in Louisiana v. American Rivers, the Biden administration conceded to the Supreme Court that such decisions are lawless. It was right to do so,” argues Wood. “Rule changes should take place in the open, with opportunity for public comment. If this decision stands, future administrations will doubtlessly seek to sidestep the rulemaking process and void their predecessor’s rules through collusive litigation.”
When crafting rules on how to manage imperiled species, it’s important to consider that most endangered and threatened species rely on habitat found on private lands. The ESA’s punitive approach does little to encourage landowners to restore habitat for imperiled species and voiding the threatened species rule changes will exacerbate that challenge. Less than three percent of listed species have recovered or been delisted under the ESA. If we want to improve this record, we must treat private landowners as partners in conservation and that means balancing the stick with the carrot.
