Administration Finalizes Endangered Species Act Regulations, Environmental Groups Challenge Changes in Courts

The Trump administration finalized a set of changes to the Endangered Species Act regulations weakening protections for listed species. Changes would allow the U.S. Fish and Wildlife Service (USFWS) and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NOAA NMFS) incorporate economic considerations into listing decisions and reverse a long-standing rule that automatically gives threatened species similar protections as endangered species, known as the blanket 4(d) rule. Another change codifies the definition of “foreseeable future” as the timeframe in which predictions about the future are “more likely than not” and “reliable.” This change could impact how federal agencies incorporate climate change impacts into species protections.

An analysis of the regulations by the Environmental Policy Innovation Center found that, of the 33 changes – five changes will harm conservation, six changes’ impact on conservation will depend on agency implementation, 17 changes will have a negligible impact on conservation and five changes will help conservation. All of the changes that help conservation are minor changes – these include changes that will streamline how USFWS and NOAA NMFS consult with other federal agencies on endangered species protections and collaborate on species conservation.

Eight environmental groups filed a lawsuit challenging the regulations, claiming the federal government did not analyze the environmental impacts of the changes as required by the National Environmental Policy Act and inserted new provisions into the final regulations without holding a required public comment period.

A top Interior lawyer, Karen Budd-Falen, said that the changes are just the first of a series of revisions to the Endangered Species Act regulations. Other upcoming changes will include a definition of habitat under the Endangered Species Act and revisions to a provision that allows the Interior Department to consider economic costs when designating critical habitat for species. The White House Office of Management and Budget’s Unified Agenda, which provides a preview of upcoming regulations, notes that the U.S. Fish and Wildlife Service and the National Marine Fisheries Service plan to release a proposed rule revising the agencies’ interpretation of the phrase “significant portion of range” in the ESA.

The Congressional Western Caucus also plans a legislative package addressing the Endangered Species Act this fall. A similar package of bills from the caucus failed to advance during the previous Congress. Separately, Senate Environment and Public Works Chairman John Barrasso (R-WY) continues work on another legislative proposal to “modernize” the ESA.

Congress

House Select Committee on the Climate Crisis: The committee issued a request for information, seeking stakeholder input on how Congress and the U.S. government should respond to the climate crisis and “lead an ambitious transition to clean energy and resilience that puts Americans to work, builds a just economy, unleashes American ingenuity, and prepares communities for the impacts of climate change.” The document asks for policy recommendations detailing how Congress can help communities become more climate resilient and how to increase carbon storage in agriculture, forests, oceans and federal lands and decrease greenhouse gas emissions from these sectors.

BLM Relocation: As Congress returns from its’ summer recess, the House Natural Resources Committee plans a Sept. 10 oversight hearing for the Interior Department’s plan to move the Bureau of Land Management headquarters to Grand Junction, CO.

Senate Interior Appropriations Ranking Member Tom Udall (D-NM) and House Interior Appropriations Chair Betty McCollum (D-MN) indicated that they will try to stop the move. Udall and McCollum sent a letter to the Interior Department expressing their concerns that the plan is “designed to reduce the Bureau’s effectiveness and relevance” and urging the agency to immediately suspend the move.

Executive Branch

White House: President Trump asked Agriculture Secretary Sonny Perdue to exempt the Tongass National Forest in Alaska from the Forest Service’s roadless rule, effectively opening up more half of the 16.7 million-acre forest to logging and other extractive activities.

White House/OSTP: Acting Office of Management and Budget Director Russ Vought and Office of Science and Technology Policy Director Kelvin Droegmeier sent a memo to agency heads detailing the administration’s budget priorities for research and development, as agencies start to prepare their budgets for fiscal year 2021. For the first time during the Trump administration, the memo names ocean exploration and research and development “that improves understanding of and supports effective responses to changes in the ocean system” as a priority. Another new priority is “earth system predictability,” which Vought and Droegmeier describe as understanding the extent to which components of the earth system can be predicted – from individual storms to long-term global change. The memo instructs agencies to “prioritize R&D that helps quantify Earth system predictability across multiple phenomena, time and space scales.”

The recently established Joint Committee on Research Environments (JCORE) memo includes priorities such as addressing sexual harassment, reducing administrative burdens on researchers, and protecting research assets from espionage and foreign interference.

NSF: A webinar for individuals, teams and organizations interested in applying to manage and operate the National Ecological Observatory Network will be held Sept. 11 at 2 p.m. Eastern time. NSF announced in July 2019 that it will recompete the award to manage NEON in a Dear Colleague letter. Battelle Memorial Institute is tasked with managing NEON through 2021. The webinar will cover the timeline for executing the competition, key decision points by NSF, critical dates for activities related to the competition, and information on the post-award oversight requirements for awards managed through cooperative agreements. Register online here.

The Directorate for Biological Sciences plans a series of virtual town hall meetings the week of Sept. 16, 2019, about reintegrating and unifying biology across disciplines. Information and registration is available at reintergratingbiology.org.

NSB: The first two parts of the 2020 Science and Engineering Indicators reports are now available. The reports cover national U.S. trends in national trends in K-12 student achievement in science and mathematics and higher education trends in science and engineering. The National Science Board plans to release further, thematic reports on the state of science and engineering in the U.S. throughout 2020.

NOAA: The agency reiterated President Trump’s claim that Hurricane Dorian would impact Alabama and disavowed a tweet from the National Weather Service’s Birmingham, AL office refuting Trump’s claim. The American Meteorological Society defended the Birmingham office, calling the pushback to the tweet “unwarranted” and said that the office’s staff “should have been commended for their quick action based on science in clearly communicating the lack of threat to the citizens of Alabama.” NOAA’s acting chief scientist told agency staff that he is investigating whether the statement defending President Trump violates the agency’s scientific integrity policy.

A regional official in the National Marine Fisheries Service blocked the release of an over thousand-page scientific report analyzing how the Trump administration’s water management plan will harm federally threatened and endangered Chinook salmon, Central Valley steelhead and Southern Resident killer whales. The water management plan aims to increase the quantity of water available for agriculture. The Los Angeles Times posted the leaked report online.

EPA: The agency released a proposed water quality certification rule limiting the states’ ability to block projects under section 401 of the Clean Water Act designed to expedite natural gas pipelines and other energy-related infrastructure. Coastal states, such as Washington state and New York, have used their authority under section 401 to block fossil fuel export facilities and pipelines in their states, citing air quality and climate concerns. The proposed rule would prevent states from considering concerns other than water quality during the certification process and aims to accelerate the process, giving states one year to complete their analysis after they have received a “certification request.” Currently, some states will take more that year to complete the certification, dependent on when the state receives a permit application from a developer. The proposed rule comes in response to an April 2019 Executive Order promoting energy infrastructure development. The proposal is open for public comment on the Federal Register through Oct. 21, 2019.

Another new proposed rule stops the EPA from directly regulating methane emissions from the oil and gas industry. Methane accounts for almost 10% of greenhouse gas emissions in the U.S. Instead, if the rule is finalized, the EPA will only regulate volatile organic compounds (VOCs), which could also reduce methane emissions. The EPA argues that efforts to regulate both VOCs and methane are redundant. The proposed rule would also stop the EPA from regulating greenhouse gas emissions from the oil and gas industry’s storage and transmission sector.

Courts

Pipelines: A federal appeals courts ruled in favor of opponents to a Nexus natural gas pipeline, requiring the Federal Energy Regulatory Commission to rejustify its approval of the project. The pipeline would carry natural gas through Ohio and Michigan for export to Canada and would require the use of eminent domain. The pipeline opponents argued that a provision in the Natural Gas Act allowing for the use of eminent domain does not apply to international pipelines.

Pollinators: The Pollinator Stewardship Council, the American Beekeeping Federation and Beekeeper Jeffery S. Anderson are challenging the EPA’s decision to expand the use of the pesticide sulfoxador in the courts. The EPA has called sufoxaflor “very highly toxic” to bees (see ESA Policy News, July 29, 2019). The beekeepers, represented by Earthjustice, say that the agency violated the Federal Insecticide, Fungicide and Rodenticide Act when it did not open hold a public comment period before making its final decision.

National Monuments: A federal district judge rejected a lawsuit filed by two Oregon timber companies that argued that President Obama exceeded his legal authority under the Antiquities Act when he added 48,000 acres to the Cascade-Siskiyou national monument in 2017. The timber companies contested that about 40,000 acres of the addition were already designated under the Oregon and California Revested Lands Act to be managed for commercial forest production. The court decision notes that the Bureau of Land Management had already removed the majority of the area from timber production. This decision affirms a magistrate judge’s recommendation, which was released in April 2019.

Sonoran Desert Tortoise: Two environmental groups, Western Watersheds Project and WildEarth Guards, filed a lawsuit challenging the U.S. Fish and Wildlife Service’s 2015 decision to not list the Sonoran Desert Tortoise under the Endangered Species Act. The groups argue that the decision ignored the best available science about the threats to the tortoise, including climate change and livestock grazing.

States

Alaska: Gov. Mike Dunleavy (R) and University of Alaska Board of Regents Chairman John Davies reached an agreement to reduce budgets cuts to the university system. The compact would cut state funding by $25 million this state fiscal year, and would reduce university funding by $25 million next year and $20 million in 2021. In late June 2019, Dunleavy issued a veto that would have reduced state funding for university by $135 million which led to threats of lay-offs for tenured faculty and severe impacts to climate research, biological collections and more. Davies and University of Alaska President Jim Johnsen warned that this budget reduction will still likely lead to lay-offs and cuts to programs.

North Carolina: Gov. Roy Cooper (D) and the North Carolina Department of Environmental Quality released a draft clean energy plan intended to reduce the state’s power sector greenhouse gas emissions by 60% to 70% by 2030 and bring the state to carbon-neutrality by 2050. The plan would require actions by the Republican-controlled state legislature to be fully implemented, but Cooper can still act on some items in the plan without the legislature.

Separately, the North Carolina Coastal Resources Commission is reconsidering a provision that prohibits its science advisers from predicting the impacts of sea level rise more than 30 years in the future.

Clean Power Plan: The Attorneys General of 22 states, the District of Columbia and six cities filed a lawsuit challenging the Affordable Clean Energy rule, the Trump administration’s replacement to the Clean Power Plan. The lawsuit claims that the rule violates the EPA’s legal responsibility to address carbon pollution under the Clean Air Act. The Clean Power Plan, which aimed to reduce carbon emissions from power plants, was never fully implemented. The Supreme Court blocked the Clean Power Plan after Republican-led states challenged the rule in the courts.

International

IPBES: The Intergovernmental Platform on Biodiversity and Ecosystem Services is currently seeking experts in natural science, social science, policy, and/or indigenous and local knowledge systems to assist with the scoping of two new thematic assessments; one on the interlinkages among biodiversity, water, food and health (initial scoping document can be found here), and a second on the underlying causes of biodiversity loss and the determinants of transformative change and options for achieving the 2050 Vision for Biodiversity (initial scoping document can be found here). Interested experts in the U.S. can email their CV and a short paragraph (400 words maximum) about their interest in the opportunity and what they hope to contribute to Sarah Weiskopf at sweiskopf@nullusgs.gov by Oct. 4, 2019.

IPBES opened its draft sustainable use assessment for external review and comment. See the announcement to apply to be an external reviewer.

IPCC: A United Nations report on climate change and land change finds that agriculture, forestry and other land uses account for 23% of the world’s carbon emissions and 70% of the world’s ice-free land surface is already being used by humans. Reducing carbon emissions from land would require major changes to the world’s food system and efforts to plant trees to reduce CO2 levels could increase food shortages and prices.

CITES: Delegates at the Convention on International in Endangered Species of Flora and Fauna (CITES) agreed to protect 130 species for the first time under the agreement and increased protections for nine species at a summit in Sri Lanka. Species protected include giraffes, mako sharks, wedgefishes and guitarfishes.