The Fish and Wildlife Service, the agency charged with protecting the nation's most vulnerable wildlife, recently stripped automatic protections for species listed as threatened under the Endangered Species Act (ESA).
This reversal of longstanding policy—part of a package of three rules designed to weaken the ESA—simultaneously makes it more difficult to protect species and creates more work for the agency. It could have grave implications for species listed as threatened in the future.
First, some background. For the last forty years, the Service has prohibited the "take" of both endangered and threatened species, meaning any action that kills, harms, harasses, or otherwise endangers them. In other words, you can't go out and shoot a threatened species, or destroy its nest, or capture one in a jar… you get the point. It has also prohibited trade of the species, a rule that is vital for conservation of threatened species in other countries. These restrictions are obviously crucial for a species sliding toward extinction.
But the ESA itself only mandates these protections for endangered species; it separately requires the Service to extend necessary protections to threatened species. Practically since the Act's passage, the Service has automatically extended protection from "take," trade restrictions, and other protections mandated for endangered species to those listed as threatened. When advantageous for the species, the Service has promulgated species-specific rules to replace these automatic, blanket protections.
But that's a thing of the past.
Now, the Service will only issue species-specific protections for threatened species. That might be fine if the Service actually enacted those restrictions when listing each species—but that's unlikely to happen. In fact, although the public has urged the Service to write into its regulations a requirement that such protections be published at the time of listing, they declined to do so.
With no binding deadline, the Service is all but certain to delay implementing these protections after listing threatened species. The agency already routinely falls behind on listing petitions, habitat protections, and other actions mandated by the ESA.
Take, for example, the rusty patched bumble bee. Though the ESA required the Service to make a decision over two years ago about protecting habitat crucial to the endangered bee's survival, it still has yet to do so. In fact, it isn't even on the Service's 5-year workplan—basically its to-do list—meaning protection was unlikely to happen before 2025, if at all. It took a recent lawsuit by NRDC to get the agency to comply with the law.
So the problem is this: an already overburdened agency is forcing itself to promulgate a tailored set of protections for each threatened species it lists. When the agency inevitably falls behind, in the meantime, these species won’t be protected by central provisions of the ESA. Only critical habitat—if designated by the Service—and related consultation procedures would apply. But those protections, too, have been weakened by the Service's new regulations.
This is a senseless capitulation to industry interests that feel the ESA’s protections hurt their bottom line. But the American people deserve better.
And so do the species in need of protection. Species that may soon be listed as threatened include the Monarch Butterfly, Giraffe, and Joshua tree, among dozens more. And given the United Nations Global Assessment Report's warning that a million species are threatened with extinction, many more may be coming. If the ESA is going to effectively halt the decline of these precious species, the Service needs to use the protective powers it has—not perform mental gymnastics to excuse its inaction.