Revamp of Endangered Species Policy Could Spur Development

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By Alan Kovski

Changes to federal policies on endangered species that might be ahead in the Trump administration could ease the pathway for industrial, commercial and residential projects without need of congressional action, lobbyists and attorneys told Bloomberg BNA.

Calculations of potential harm to protected species or their habitats can slow down, reshape or halt projects ranging from road repairs to multibillion-dollar transmission lines. Opposition from minority Democrats in Congress could make it difficult to make changes to the Endangered Species Act itself. But the Trump White House could use regulatory changes to revise policies for endangered species and lower barriers for infrastructure, energy development and construction.

The administration could start revamping policies by looking at what the Obama administration did over the last two and a half years, and undoing those changes, said Michael Mittelholzer, assistant staff vice president for environmental policy at the National Association of Home Builders.

The U.S. Fish and Wildlife Service under President Barack Obama revamped the method of designating critical habitat, established a definition of “adverse modification” of critical habitat and set a policy on economic analyses to be used with critical habitat designations.

None of those changes involved congressional action. “And none of these did we agree with,” Mittelholzer told Bloomberg BNA.

Changes Possible on Habitat

A coalition of state attorneys general, now representing 20 states, sued the Obama administration in November over what the state attorneys saw as illegal expansions of federal authority to designate critical habitat and interpret actions as adverse modification, meaning changes that are harmful to habitat characteristics that help a species survive ( Alabama v. Nat’l Marine Fisheries Serv., S.D. Ala., No. 1:16-cv-593, 11/29/16 ).

The National Association of Home Builders expects the Obama administration’s regulatory changes to result in larger designations of critical habitat, Mittelholzer said.

The Trump administration could go through a rulemaking to designate as critical habitat only those areas actually occupied by the endangered species, and then allow expansion of the designation at a later date only if the first-stage designation proved inadequate. In the view of the litigating state attorneys, that would be a return to established policy prior to the Obama administration’s changes.

The new administration also could limit the assessment of “adverse modification” to actions that measurably damage the existing habitat characteristics needed for survival of a species. The state attorneys, in their lawsuit, said the Obama administration illegally expanded “adverse modification” to include actions that might prevent currently unsuitable habitat from eventually becoming suitable. That expanded definition would allow regulators to block any action that might reduce the odds of habitat becoming useful to a species at some time in the future.

Flexibility on Economic Impact

Regulators also can use existing law to take more account of the economic impact of critical habitat designations, said Andrew Davis, a Hartford, Conn.-based partner in the law firm Shipman & Goodwin LLP.

Regulators are allowed to exclude areas from critical habitat for reasons of economic impacts, national security or “any other relevant impact,” unless it would result in the extinction of a species.

The flexibility allowed for such economic considerations “absolutely” would be an area for Trump administration regulators to consider changing their strategies, Davis said.

Parker Moore, a principal at the law firm Beveridge & Diamond PC, said a starting point might be a presidential memorandum from Trump to counter a November 2015 Obama memorandum that pushed agencies to become more aggressive on environmental mitigation.

Obama included in his memorandum a requirement for agencies to seek a “net conservation gain” wherever the laws allow, going beyond counterbalancing mitigation for habitat impacts.

Role for States and Communities

Ryan Zinke, Trump’s new Interior secretary, has emphasized partnering with states and communities on environmental protections, including habitat and species conservation plans.

The best conservation strategy is locally led and voluntary, said Brent Van Dyke, president of the National Association of Conservation Districts. The conservation districts are established by states to work with landowners to protect the environment and species.

The Western Governors’ Association in February told a Senate committee the governors wanted a “full and authentic partnership between the states and [Fish and Wildlife and National Marine Fisheries] services with respect to species listing, critical habitat designations, establishment of recovery goals and delisting decisions.”

Three environmental activist groups criticized the Western Governors’ Association and urged other governors to oppose any legislative changes to the Endangered Species Act. Leda Huta, executive director of the Endangered Species Coalition, said the recommendations of the Western governors were “focused on streamlining environmental regulations for extractive industries” rather than preventing extinctions.

Plans Not Yet Announced

The Trump administration hasn’t announced new policies on endangered species, and it hasn’t filled the top positions at the agencies that administer the law—the Fish and Wildlife Service and the National Marine Fisheries Service. Spokesmen for the two agencies declined to respond to Bloomberg BNA’s queries about what policy changes are among the options being considered.

Revisions to regulations by Trump administration officials will have to pass muster with federal judges, because there is sure to be litigation, another attorney said.

“I think that’s the primary issue,” said Lowell Rothschild, an environmental litigator who focuses on natural resource issues such as endangered species at Bracewell LLP in Austin, Texas. “The best judge for what they can do is, literally, a judge.”

To contact the reporter on this story: Alan Kovski in Washington at akovski@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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