Efforts to alter ESA continue in 115th Congress

By Rachel Schadegg

©Richard Bonnett

Listing Reform Act

On Jan. 27, Rep. Pete Olson (R-TX) introduced H.R. 717 with the intent to alter the process of listing a species as threatened or endangered under the Endangered Species Act. The new bill is a reintroduction of the Listing Reform Act, which Olson unveiled during the 114th Congress but was not voted on by the House Committee on Natural Resources.

H.R. 717 would “require review of the economic cost” of providing a species with protections under the ESA before a listing determination is completed. Currently, economic costs cannot be considered during the listing process, but are an element of critical habitat designations. The proposed changes also include the removal of existing time requirements to make findings on petitioned actions, the addition of a requirement that delisting petitions receive equal priority as listing petitions, and the preclusion of the listing of a species as threatened if the listing would result in “significant, cumulative economic effects” – including those impacts likely to result from the designation of critical habitat. Economic effects considered would include property values, the provision of public services, impacts on business, and State and local government revenues.

The Act would only allow the Secretary of the Interior to reconsider findings of significant, cumulative economic effects if the species is considered endangered or if the Secretary receives a new petition demonstrating alternative actions that do not result in such economic effects.

In a press release issued on Jan. 30, Olson stated, “Protecting endangered species can and should be done in a practical way. The government should have the flexibility to act quickly and practically on listing and delisting petitions. A triage system much like a hospital emergency room will ensure that the most endangered species get to the front of the line. I look forward to working with President Trump to provide protections for truly endangered species.”

Including a requirement to review the economic costs of listing a species as threatened, however, could discourage the adoption of proactive measures to prevent the declines of at-risk species that are not currently listed. This could reduce the ESA’s effectiveness by delaying protections for at-risk species until their populations drop to severely low levels, which could make recovery more difficult and costly. This is contrary to The Wildlife Society’s Position Statement which holds that the ESA must adapt to “include and encourage proactive measures to identify and conserve critical components of landscapes.”

The Listing Reform Act currently has three Republican cosponsors and has been referred to the House Committee on Natural Resources for review.

Past ESA modification efforts 

Legislative efforts to alter the ESA and its implementation have become more prevalent in recent years. The new legislation follows unsuccessful attempts during the 114th Congress to modify various aspects of the ESA and the listing process. Indications are that these efforts will continue in the 114th Congress.

Last Congress, Sen. Rand Paul (R-KY) and Rep. Blaine Luetkemeyer (R-MO) introduced companion versions of the Endangered Species Management Self-Determination Act which would have required the Department of the Interior and the Department of Commerce to obtain the consent of each state for the determination and listing of species present within the state.

The 21st Century Endangered Species Transparency Act, introduced in the Senate and House by Sen. John Cornyn (R-TX) and Rep. Cynthia Lummis (R-WY), would have required the DOI or the DOC to to establish an online database of the best available scientific and commercial data that ESA listings are based on. The database would have had to include each proposed legislation for a species’ listing.

In addition, Sen. Cornyn introduced the Endangered Species Act Settlement Reform Act to involve states and localities in the listing-related settlement process and to alter how the court could award reimbursements for litigation costs. Rep. Bill Huizenga (R-MI) introduced the Endangered Species Litigation Reasonableness Act which also aimed to change the ability of the court to award financial reimbursement for ESA-related litigation costs. 

Current species-specific legislation

Other ESA-related bills introduced this Congress focus on the listing statuses of specific species. On Jan. 13, Rep. Rob Bishop (R-UT) introduced the Greater Sage Grouse Protection and Recovery Act of 2017 which calls for a focus on state-level management plans for the greater sage-grouse (Centrocercus urophasianus) and a mandatory delay on any further FWS finding on the species until Sept. 30, 2027. The Wildlife Society opposed similar language that was included in the National Defense Authorization Act for Fiscal Year 2017 but was later removed. Sen. James Risch (R-ID) introduced a companion bill in the Senate on Feb. 2.

H.R. 424, introduced by Rep. Collin Peterson (D-MN) on Jan. 10, and S. 164, introduced by Sen. Ron Johnson (R-WI) on Jan. 17, both call for the reissuing of FWS rules published in 2011 and 2012 that removed ESA protections from gray wolves (Canis lupus) in the western Great Lakes region (spanning Minnesota, Wisconsin, and Michigan and portions of adjacent states) and in Wyoming. FWS had considered these gray wolf populations to be stable enough to no longer qualify for ESA listing, but a U.S. District Court ordered for the reinstatement of their listing statuses under the ESA in September 2014. Gray wolf management continues to be heavily debated at the federal and state levels.

 TWS’ stance on ESA reform 

TWS, via its Position Statements, considers the ESA to be vitally important for preserving biodiversity in the U.S. The majority of the nearly 2,000 species listed under the Act have not gone extinct. TWS does, however, recognize the opportunity for improvements to ESA that focus on increasing the effectiveness of the law in achieving its goals of preventing extinction and recovering species. This will likely require greater commitment and integration of federal, tribal, state, local, and private resources to  fully address the larger sociocultural and socioeconomic issues that frequently drive species extinction and recovery.

For more information, please see the TWS Technical Review on Practical Solutions to Improve the Effectiveness of the Endangered Species Act for Wildlife Conservation, which outlines ways to improve the effectiveness of the ESA while maintaining a consistent interpretation of the law and supporting its statutory duties.

Rachel Schadegg is a policy intern at The Wildlife Society as part of the Government Affairs & Partnership program. Read more of Rachel's articles here.