Congress Set to Vote on Gutting Endangered Species Protections

The Westerman bill contains dozens of damaging provisions. Given recent events, one is worth singling out.

Section 506 would allow expanded use of the God Squad. Under current law, the committee exists as an emergency release valve for genuinely intractable conflicts where a federal action would likely jeopardize a listed species or adversely modify critical habitat and no reasonable and prudent alternative exists. The bar is set high by design. Congress recognized that the U.S. Fish & Wildlife Service (FWS) can almost always offer agencies pragmatic alternatives that let federal projects move forward while protecting endangered species.

Section 506 lowers that bar and turns the God Squad from a seldom-used safety valve into an all-purpose trump card. It would allow states, agencies, and private corporations to request exemptions even when a reasonable and prudent alternative exists, so long as that alternative “may impair national security” or “result in significant adverse national or regional economic impacts.”

This replaces an objective standard (where the FWS has identified a reasonable and prudent alternative) with a subjective one (which might impair national security or cause significant economic harm). If an alternative truly carried serious military or economic consequences, it likely would not be reasonable and prudent to begin with (see 50 C.F.R. 402.02). Project sponsors would seize on the lower bar, the services and the committee would face a backlog of applications, and every grant or denial would be subject to judicial review. The result is more litigation, more delay, and more of cabinet officials’ time spent adjudicating exemption requests, which is exactly what Congress meant to avoid when it wrote the strict criteria into law in 1978.

Section 506 would create an exception that could swallow the rule. Exemptions would be permanent. Species would lose protection from incidental take. In many cases, a species would be worse off than if no alternative had ever been proposed.

The Gulf exemption required an unprecedented and legally contested invocation of emergency authority. Under H.R. 1897, the same exemption would be routine paperwork.

The species the March 31 vote left exposed are not abstractions.

The Rice’s whale is the only large whale that lives in the Gulf of Mexico year-round, and there are roughly 51 of them left on earth, with their core habitat lying off Florida. The 2010 BP Deepwater Horizon disaster alone, by the government’s estimate, killed 17 percent of the population. Federal scientists have concluded that continued Gulf oil and gas operations are likely to jeopardize the species’ existence. The loss of a single breeding female could push the Rice’s whale toward extinction.

Five species of sea turtles, including the Kemp’s ridley, which has survived extinction threats for 40 years, use Gulf waters. The NOAA estimates that without “mitigation” from Gulf oil and gas operations, more than 30,000 sea turtles will die over the next 45 years. The new exemption removes the legal requirement to mitigate.

Florida manatees forage in shallow seagrass beds along the coast; the exact zone that is most exposed to a major spill. A single catastrophic event in manatee habitat could be irreversible.

The exemption also affects endangered sperm whales, threatened Gulf sturgeon that spawn in Gulf state rivers, protected shorebirds like the piping plover, the whooping crane, and the rufa red knot, and seabirds like the black-capped petrel.

The Gulf exemption is, in significant part, a Florida story. The federal oil and gas program the Trump administration just exempted operates in waters adjacent to Florida. The manatees are Florida manatees. The Kemp’s ridleys nest on Florida beaches. The Gulf sturgeon spawn in Florida rivers.

In January, the entire Florida congressional delegation, Republicans and Democrats alike, signed a letter opposing new offshore drilling off the Florida coast. Members who stood up for Florida waters three months ago are now being asked to vote for a bill that would legalize the removal of wildlife protections from those same waters.

Florida readers are paying attention. Florida editorial voices carry a weight in this vote that they do not carry in most others.

Section 506 is the provision most directly tied to the Gulf fight, but it does not stand alone.

The bill narrows the definition of “habitat” to limit protections for areas unless they are currently capable of supporting a species. This will make it difficult, if not nearly impossible, to protect and recover degraded areas or to proactively protect areas that species need to survive as climate change and other factors shift where they reside. 

The bill narrows the jeopardy standard that has governed federal agency decisions for five decades, excluding from consideration effects that are “remote in time,” “geographically remote,” or reached “through a lengthy causal chain.” The practical effect is to carve the cumulative and long-term harms that drive many species declines out of the analysis.

The bill requires an economic impact analysis every time a species is considered for listing, injecting industry cost calculations into what has been a science-based decision since 1973.

The bill also prohibits judicial review during the five-year monitoring period after a species is delisted, eliminating the courtroom backstop that has prevented premature delistings from becoming extinction events.

In short, these changes would degrade virtually every federal protection that exists under the ESA for Florida’s endangered and threatened species and make recovery far more difficult. Many iconic species, like manatees, are already struggling.

Congress is expected to vote on H.R. 1897 this week. 

The House floor vote is a record vote on whether the Endangered Species Act should be radically diminished, at the expense of some of Florida’s most popular and cherished wildlife. Members who vote “yes” will be on record as doing so.

The ESA has protected American wildlife for more than 50 years, with roughly 84 percent public support. It has worked because its listings are science-based, its protections are enforceable in court, and its exemptions are genuinely narrow. The God Squad exemption showed the country what happens when those safeguards are bypassed. H.R. 1897 would make this the new normal and strip away safeguards for Florida species.