September 2017
Proposed Changes to the Endangered Species Act Pit Animals Against Industry

Congressional Republicans have proposed five separate bills that, if passed, would reduce current protections for endangered and threatened species in the name of promoting business development and cost-saving. 

In keeping with the “de-regulation” focus of the Trump Administration and Trump’s January 2017 Executive Order that calls for the repeal of two regulations for every one passed, House Republicans on the Natural Resources Committee have proposed a series of changes to the Endangered Species Act that would make it more difficult to list a species, and would remove incentives for citizen groups to sue for enforcement of the listings.

Taken as a set, the five proposed bills are designed to weaken the ESA while ostensibly strengthening landowner interests and saving money. And naturally environmental and conservation groups oppose all five proposed bills. 

According to supporters, the five bills could make it easier for landowners and those looking to buy, sell or develop real estate. Reducing the number of species one has to keep on one’s radar may be a positive incentive for some to get out into the marketplace and make deals. Three of the five bills would actively reduce the number of threatened and endangered species that made it to the listing stage. Businesses may also be able to lower their liability reserves, as it would be increasingly difficult for citizens to mobilize to bring a claim under the Act knowing they will not be awarded their attorneys’ fees if they prevail.

The Endangered Species Act was signed into law in 1973, in a decade when a number of environmental laws were added to the books. Over the years, species have been added to and subtracted from the list as science – and the political climate – has dictated. The Supreme Court famously confirmed in Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), the clear intention of the Act was to save species from extinction, “whatever the cost.”

Just this past year, chimpanzees were listed as endangered, which was a coup for environmental and conservation groups who had sought such a listing for decades. However, it now looks as if the pendulum is swinging back in favor of elevating the interests of industry. Here is a breakdown of the proposed bills:
  • HR 717: Currently, a great deal of scientific evidence is required to list a species as endangered, and the science is prioritized over other factors. This bill proposes an economic override of sorts – a listing can be precluded by a likelihood of “significant” economic effects.
  • HR 1274: Similarly, this bill goes a step farther in eliminating the scientific process by which a listing is determined, and suggests replacing it with data submitted by government itself.
  • HR 3131: This bill makes it harder for citizens who win a challenge under the citizen suit provision of the Act to recoup their costs and legal fees. Fee-shifting provisions in environmental statutes often make the difference in whether citizens are able – or willing – to sue for the enforcement of the statutes and regulations. Likewise, fee-shifting provisions have been a long-standing thorn in the side of private companies who do not want to be targeted as defendants in such lawsuits.
  • HR 2603: This bill limits the protections of the Act to the category of species that are “native” to the United States, thereby reducing the Act’s breadth. 
  • HR 424: This bill proposes to remove the recently enacted protections for grey wolves in many western states. 

Supporters of these proposed changes argue the Act as it currently stands is outdated, ineffective, and unnecessarily expensive. Perhaps ironically, they suggest that due to the decades of protection under the Act, it can be scaled back since many formerly threatened and endangered species are in recovery. Those who oppose the bills point out that they will undermine key provisions of the highly popular law – 90 percent of voters polled support it. Bill opponents worry that repeal of the fee-shifting provisions for citizen suits and removal of scientific-data-driven-listing determinations will negatively impact wildlife. 

The Trump Administration is in favor of reforming the Act. The Fish and Wildlife Service has simply said it intends to work with both Congress and with industry on species enforcement priorities.

It is not yet clear how much traction these bills will get in our current highly-charged political climate, where proposed changes in the law seem to be broadcast almost hourly. If advanced, the proposed bills could impact national and local mergers, acquisitions, sales, closings, lending, re-development, and energy projects as they relate to considerations of endangered species. For additional information on how this may affect your business, please contact the author or your Polsinelli attorney.