Endangered Species Act Under Attack

This week I learned about four proposed rule makings that further dismantle the Endangered Species Act, opening up more land for extraction and environmental devastation to ecosystems and animals.

This post summarizes the four proposed changes to the Department of Interior's Fish & Wildlife Service regulations, with the links for where you can comment, along with a template you can cut/paste/edit as your own.

You can read a scathing critique of the rules and their implications in More than Just Parks' Substack article from November 21. The author claims that many of these changes are illegal, but since the legal process is slow, by the time they are challenged by courts, damage will already be done.

As with other rule-makings proposed by this administration, our comments are not likely to stop the rule from passing. However, it provides critical historical records for the inevitable legal cases that will attempt to undo them later. 

FWS-HQ-ES-2025-0039 - Listing Endangered and Threatened Species and Designating Critical Habitat

• Summary: Allows economic costs to factor into decisions for the first time. Previously, only the impacts on the animals mattered. 
• Link to comment: www.regulations.gov/commenton/FWS-HQ-ES-2025-0039-0001
• Comment Template to: Oppose the Inclusion of Economic Impacts in ESA listing Decisions

I strongly oppose the proposed rule that would require economic impacts to be considered in listing and critical habitat decisions. This proposal directly contradicts the plain text, intent, and judicial interpretation of the Endangered Species Act.

Under 16 U.S.C. § 1533(b)(1)(A), listing determinations must be made “solely on the basis of the best scientific and commercial data available.” Courts have consistently affirmed that Congress intentionally prohibited economic considerations during listing decisions (See Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978)). The Supreme Court has repeatedly recognized that Congress intended to “halt and reverse the trend toward species extinction, whatever the cost.”

Reintroducing economic considerations violates statutory requirements and undermines half a century of precedent, making this proposed rule unlawful.

Beyond legality, this rule would create a dangerous and obvious conflict of interest. The industries most responsible for endangering species—logging, mining, fossil fuels, industrial agriculture—would effectively gain veto power over scientific determinations. This contradicts the core purpose of the ESA: to place science and the preservation of ecosystems above short‑term corporate profit.

Requiring economic analysis at this stage invites political manipulation, delays, and litigation while species continue to decline. It transforms the ESA from a science‑based conservation tool into a negotiable permitting program.

I urge the agency to withdraw this proposal entirely. It is contrary to the ESA, unsupported by science, and harmful to the Nation’s biodiversity, public interest, and legal integrity.

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FWS-HQ-ES-2025-0029 - Endangered and Threatened Wildlife and Plants

• Summary: Eliminates automatic protections for newly listed threatened species (Section 4(d))
• Link to comment: www.regulations.gov/commenton/FWS-HQ-ES-2025-0029-0001
• Comment Template to: Oppose Removing Blanket 4(d) Protections for Threatened Species
  

I oppose the elimination of the longstanding “blanket 4(d) rule,” which has automatically extended endangered‑level protections to threatened species since 1978.

This rule has been foundational to the ESA’s success. The transition from “threatened” to “endangered” can happen rapidly; without default protections, species may decline irreversibly during the years‑long process of drafting species‑specific rules. Congress created the threatened category to prevent species from reaching the brink of extinction. Removing baseline safeguards defeats that purpose.

Legally, the ESA requires the Secretary to implement protective regulations “as necessary and advisable to provide for the conservation of the species” (16 U.S.C. § 1533(d)). For 45 years, administrations of both parties interpreted this to mean that threatened species generally require robust protections while individualized rules are being developed.

Removing automatic protections for newly listed threatened species creates a dangerous regulatory vacuum where industry can accelerate the very harms that triggered the listing. This is contrary to Congressional intent, which emphasized precaution, not delay.

The proposed change would lead to increased habitat destruction, population loss, and regulatory confusion. It is neither scientifically justified nor administratively efficient.

I urge the agency to withdraw the proposal and retain automatic protections that have been essential to preventing species from sliding into endangered status.

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FWS-HQ-ES-2025-0044 - Interagency Cooperation

• Summary: Weakens requirements for federal agencies to avoid harming listed species
• Link to comment: www.regulations.gov/commenton/FWS-HQ-ES-2025-0044-0001
• Comment Template to: Oppose Weakening of Section 7 Consultation Requirements
  

I oppose the proposed revisions to the ESA’s Section 7 consultation process. These changes would narrow definitions of “effects,” ignore cumulative and indirect impacts, and dramatically lower the obligations of federal agencies to avoid jeopardizing listed species.

Section 7(a)(2) imposes an affirmative, non‑discretionary duty on federal agencies to ensure their actions are not likely to “jeopardize the continued existence” of listed species or “destroy or adversely modify” critical habitat. Courts have held that this requires a comprehensive, science‑based evaluation of direct, indirect, and cumulative impacts (see Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012)).

The proposed rule attempts to redefine away large categories of harm by excluding cumulative, long‑term, or “uncertain” impacts — which in ecology are often the most significant drivers of decline.

This is scientifically indefensible. Species are not harmed only by sudden catastrophic events; they decline through chronic habitat fragmentation, pollution, noise, climate‑driven stressors, and repeated small administrative decisions that add up to irreversible loss.

By raising the evidentiary threshold and weakening the definition of adverse modification, the rule would allow agencies to green‑light destructive federal actions — pipelines, highways, logging, mining — with virtually no accountability.

The ESA’s effectiveness depends on Section 7. Gutting consultations effectively guts the Act.

I urge the agency to withdraw this proposal.

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FWS-HQ-ES-2025-0048 - Critical Habitat Exclusions

• Summary:  Gives industry broad veto power over habitat protections
• Link to comment: www.regulations.gov/commenton/FWS-HQ-ES-2025-0048-0001
• Comment Template to: Oppose Industry-Driven Critical Habitat Exclusions
  

I strongly oppose this proposed rule, which would allow industries to exert disproportionate influence over critical habitat designations and require the agency to exclude habitat whenever economic claims outweigh ecological needs.

This flips the ESA on its head. Critical habitat is defined under 16 U.S.C. § 1532(5) as areas “essential to the conservation of the species.” Congress did not authorize industry veto power, nor did it require the agency to prioritize economic concerns over ecological necessity.

The proposal would require the agency to exclude habitat unless it can prove the exclusion would lead directly to extinction — an impossibly high standard that contradicts both science and law. Recovery, not mere survival, is the legal standard of the ESA. Species need habitat to expand, recolonize, adapt to climate change, and achieve viable population levels.

The rule also undermines the precautionary principle by dismissing unoccupied habitat, even when essential for climate resilience, migration corridors, or recovery planning. Courts have upheld the inclusion of unoccupied habitat as long as it is essential for conservation.

Giving regulated industries the ability to demand exclusions invites political pressure, manipulation of economic projections, and decisions contrary to both the statute and the best available science.

I urge the agency to withdraw this rule and maintain science‑based habitat protections.