Might changes the Trump administration is implementing in the Endangered Species Act adversely impact Yellowstone bison?/NPS, Diane Renkin

Bison in Yellowstone National Park, black bears in Everglades National Park, Joshua trees in Joshua Tree National Park, and moose at Isle Royale National Park. Those are just some of the roughly 150 species being petitioned for "threatened" or "endangered" listing under the Endangered Species Act and which stand to be affected by changes to the act the Trump administration is implementing.

Long viewed as the nation's bedrock environmental law, the ESA has drawn criticism for how it affects both private property and commercial interests that operate on public lands. But the way the Trump administration went about altering how the act is implemented has attracted a lawsuit that contends the administration violated the National Environmental Policy Act by failing to disclose and identify how those changes could impact threatened and endangered species and those species that need to be listed to prevent being lost to the world.

The changes, which are to take effect September 26, include:

* How critical habitat for threatened and endangered species is calculated;

* Reductions in the protections "threatened" species receive under the ESA;

* Opening the door for economic interests to be considered when a species is proposed for listing, and;

* Effectively ignoring climate change by defining the "foreseeable future" as "only so far into the future as the (U.S. Fish and Wildlife Service and National Marine Fisheries Service) can reasonably determine that the conditions potentially posing a danger of extinction in the foreseeable future are probable. The Services will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability."

The groups that brought the legal challenge in the U.S. District Court for Northern California on August 21 also maintain there should have been a public comment period on the changes, and that the changes themselves violate the ESA and the Administrative Procedures Act by adopting regulations that are contrary to the ESA.

"What they're doing is they're basically rolling back on several fronts," Liz Trotter of Earthjustice, which brought the lawsuit on behalf of the Center for Biological Diversity, Defenders of Wildlife, Sierra Club, Natural Resources Defense Council, National Parks Conservation Association, Wildearth Guardians, and The Humane Society of the United States, said Wednesday. "Essentially what they're doing is just loosening the reins on the ESA, which of course is our bedrock conservation law. By loosening these reins they're just making it easier for industry."

Not everyone views the changes negatively. At the Property and Environment Research Center, a free market research organization, senior attorney Jonathan Wood believes the changes could aid listed species that need additional habitat.

Joshua trees are among some 150 plant and animal species that groups currently are seeking ESA protections for/NPS

The ESA "makes rare species a significant liability for landowners, rather than an asset," Wood wrote in an op-ed piece for the Salt Lake Tribune. "Consequently, landowners may preemptively destroy habitat to deter endangered species from moving in. They may also refuse to restore habitat on their property because of the regulatory burdens that would follow. Studies show that both have occurred. Since the greatest threat to most species is the lack of suitable habitat, these anti-conservation incentives are a significant obstacle to recovery. 

"Fortunately, some of the reforms will better align landowners’ incentives with the interests of rare species. For instance, they reverse a 2016 change that encouraged the designation of uninhabitable land as “critical habitat” — a practice that generated much conflict but little conservation."

How soon the courts take up the lawsuit and rule on its merits is unknown.

"They filed it in the Northern District of California, which is usually a pretty solid district and we're hoping for a good response," said Trotter. "But that is just going to be dependent upon the court. Sometimes we get decisions in a month. Sometimes we get decisions in six months. But we're hoping with all of the press and with all of the pressure that's being put on the administration for these rollbacks, we're hoping that this is prioritized."

As to how the changes might affect species needing ESA protections, the Earthjustice spokesperson said it was hard to say in general, but that any new threatened species will not receive the same protections under the act that endangered species do, a change in past policy that gave the same protections to both categories. "It will be immediate, and this can go on," she said. "It will continue until we get a settlement in court."

While that lawsuit works its way through the courts, the coalition is planning a second lawsuit to be filed in mid-November that would challenge the administration's decision to allow economic considerations to be reviewed in listing petitions.

“Nothing in these new rules helps wildlife, period. Instead, these regulatory changes seek to make protection and recovery of threatened and endangered species harder and less predictable. We’re going to court to set things right,” Kristen Boyles, an Earthjustice attorney who brought the lawsuit, said when it was filed.

"In the face of a global extinction crisis, the Trump administration has undercut the Endangered Species Act, one of our most successful environmental laws. This action is clearly intended to benefit developers and extractive industries, not species, and we are going to court to stop it. The overwhelming majority of Americans want to ensure that threatened and endangered species are protected for future generations," said Senior Endangered Species Counsel for Defenders of Wildlife Jason Rylander.

But back at PERC, Wood said the changes could be a boon for species teetering on the edge of survival.

"The greatest prospect for improvement, however, is in the flexibility this reform gives states, landowners, and conservationists to develop innovative ways to recover species. Previously, the automatic imposition of the most burdensome regulations stymied such collaboration, by discouraging landowners from cooperating or even admitting species’ presence on their land. Without this automatic imposition, there will be greater opportunities to experiment with new, better ways to encourage species recovery efforts," he wrote.