Ten AGs Reject Trump Administration’s Proposal to Dismantle Critical Endangered Species Act Protections

Washington, D.C. — Massachusetts Attorney General Maura Healey and California Attorney General Xavier Becerra led a coalition of 10 state attorneys general in denouncing the Trump Administration’s plan to unravel critical species protections under the Endangered Species Act (ESA). The AGs made their case in a comment letter submitted to the Interior and Commerce Departments before yesterday’s deadline.

The coalition’s comments come in response to proposed rules put forward by the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration (NOAA) on July 25. In a press release announcing the proposed rules, the Trump Administration asserted the need to “modernize” ESA enforcement and reduce “the regulatory burden on the American people.” The AGs are strongly objecting to the Administrations’ proposed regulatory revisions which make it more difficult for species to gain protections under the act, noting that they conflict with ESA’s clear statutory language and are “untethered” from and “in clear violation of” the “overriding conservation purpose of [the] ESA.”

“These proposed rules put rare plants and animals at greater risk of extinction, imperiling natural habitats and local tourism economies across the country,” AG Healey said. “We urge the Administration to withdraw these misguided proposals.”

The proposed rules are a radical departure from the regulatory precedent established by the eight previous Administrations following the ESA’s passage. The proposal contains multiple controversial provisions, perhaps none more egregious than the Administration’s attempt to inject economic analysis into decisions regarding a species’ status as threatened or endangered, undermining the law’s requirement that these decisions must be based solely on scientific grounds. In their comments, the AGs called this proposal a “clear violation of the Act’s express terms,” noting that the use of economic analysis is unambiguously prohibited by Section 4 of the ESA.

Perhaps equally disturbing is the proposed rules’ overt attempt to establish a regulatory precedent that would effectively prohibit species impacted by climate change from gaining ESA protections. The rules prevent the Fish and Wildlife Service and NOAA from considering whether a changing climate is threatening the continued existence of certain species, and the proposal limits the ability of federal agencies to consult over ways to minimize harm to species threatened by climate change and their critical habitats.

“The Trump Administration’s proposal would risk bringing critical wildlife closer to extinction. We must voice strong opposition to this regressive and short-sighted proposal,” said Attorney General Becerra. “I have instructed my team at the California Department of Justice to look closely at the Trump Administration’s actions. We will evaluate any steps we can take to uphold the crucial protections provided by the Endangered Species Act. I invite Interior Secretary Ryan Zinke and Commerce Secretary Wilbur Ross to visit California and see firsthand how the Endangered Species Act has benefited not just our unique wildlife and robust habitats but our people and our prosperity as well.”

The AGs are arguing that the proposed rules violate the National Environmental Policy Act (NEPA) due to the Administration’s failure to study the proposed rules’ “devastating environmental effects” as required by the law. In addition to violating NEPA, the coalition objects that the rules are “arbitrary and capricious” under the Administrative Procedure Act given their obvious circumvention of congressional intent. The AGs also argue that while the proposed rules were put forward in the name of improved regulatory “efficiency,” their implementation would have the opposite effect, increasing the backlog of impending listing and designation decisions and spurring additional litigation.

“The attempted rollback of critical ESA protections fits a pattern by this Administration of proposing sweeping, systemic changes to our nation’s bedrock environmental laws,” said David J. Hayes, Executive Director of the State Energy and Environmental Impact Center. “For decades, our nation has been guided by our shared commitment to protect our wildlife resources and the extraordinary landscapes that we share with them. The Administration’s anti-science, anti-wildlife proposals violate our core values and both the letter and the spirit of our nation’s most important wildlife protection law.”

Attorneys General of Maryland, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and the District of Columbia joined Massachusetts and California in submitting the comments.

BACKGROUND

The ESA was signed into law by President Richard Nixon in 1973 after passing 92-0 in the Senate and 390-12 in the U.S. House of Representatives. It is credited with saving multiple iconic North American species from extinction including the bald eagle, the California condor, the peregrine falcon, the American alligator, the grizzly bear and the grey whale. Proponents of the law have found that the ESA’s protection of critical habitats such as the Chesapeake Bay, Shenandoah National Park, the Everglades, the Pacific Northwest and the New England Coast provide national benefits of more than $1.5 trillion each year.

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About the State Energy & Environmental Impact Center:
The State Energy & Environmental Impact Center at NYU School of Law is a nonpartisan academic center at NYU School of Law. The Center is dedicated to working towards a healthy and safe environment, guided by inclusive and equitable principles. The Center studies and supports the work of state attorneys general (AGs) in defending, enforcing, and promoting strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy.