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UCLA experts shed light on impact of Trump’s revisions to Endangered Species Act

(Nicole Anisgard Parra/Daily Bruin)

By Stephen Liu

Sept. 20, 2019 12:18 a.m.

UCLA conservationists and legal experts said upcoming changes to how the Endangered Species Act is implemented will make it more difficult to protect wildlife from extinction.

The Trump administration’s changes, which will take effect Thursday, would allow regulators to ignore the predicted effects of climate change because they might occur years in the future, and to consider economic factors, not just scientific ones, when deciding whether to protect a species.

Currently, the Endangered Species Act prohibits the killing or injuring of more than 1,600 species of plants and animals in the U.S. The law also forbids damaging a species’ habitat, which can restrict the activities of extractive industries such as mining and oil drilling.

Bradley Shaffer, director of UCLA’s La Kretz Center for California Conservation Science and a professor of ecology and evolutionary biology, said he thinks the administration made the changes to support the interests of landowners.

“They have made it a high priority to reduce what they call regulatory burden,” Shaffer said. “That means laws and rules that stand in the way of people making money off of their land.”

Shaffer said he thinks the most important change is the weakening of protections for threatened species.

Under the Endangered Species Act, a species can be listed as “endangered” if it is in danger of extinction, or “threatened” if it is likely to become endangered in the foreseeable future. Both categories of declining species essentially have the same protections, Shaffer said.

Landowners can obtain permission for some activities that might harm threatened species if they prove that the harm is minimized, Shaffer said. For example, the threatened California tiger salamander lives on ranch lands, but ranchers are allowed to continue their work.

However, after the changes take effect, newly listed threatened species will not automatically get the same protections as endangered species do. Shaffer said conservationists will have to prove an activity is more likely to be harmful than not, and regulatory agencies like the U.S. Fish and Wildlife Service will determine how much protection to give each threatened species on a case-by-case basis.

“It’s a shift of the burden of responsibility,” Shaffer said. “That’s a major shift that will just lead to many more species going extinct.”

According to the administration, the changes will help clarify what the law means by “foreseeable future.” However, Shaffer said this will raise the bar for listing species as threatened, and gives regulators the opportunity to disregard climate change projections about temperature and droughts as speculative.

For example, the government might assert they cannot know that ice will melt and hurt polar bears, so they cannot use that as information, he said

“Now it makes it much easier to say we’re not certain,” Shaffer said. “It will hamper our ability to think proactively.”

James Salzman, a professor of environmental law, said he thinks the increased distinction between threatened and endangered species might give landowners more flexibility in how they manage their land.

Salzman added he thinks the incentives of the Endangered Species Act are backward, because some landowners would rather harm protected species than face restrictions.

“Most landowners would be very unhappy to learn that there is a protected species on their property,” Salzman said. “There’s a phrase that people talk about, they call it the three S’s: ‘shoot, shovel and shut up.’”

Some landowners also preemptively destroy a protected species’ habitat so they do not attract them onto their property, Salzman said. For example, the red-cockaded woodpecker bores out its home in mature pine trees, so some timber owners cut down their forests beforehand, even though the trees have not yet grown to be at their most economically valuable.

“That’s not what you want,” Salzman said. “You want to protect endangered species, at least not to actively deter species from being on the property.”

The administration’s changes also let the government estimate the financial costs of lost business opportunities from listing a species for protection, which had never been allowed before, Shaffer said.

Though the administration stated the government will not use the economic analysis when determining whether a species warrants protection, Shaffer said he thinks regulatory agencies could decide to not protect a species from extinction because they think it would be too expensive.

“This is about doing the ethical or moral thing, which is keeping a species from going extinct, and we don’t put a price tag on that any more than we put a price tag on human life,” Shaffer said.

Julia Stein, the supervising attorney of the Frank G. Wells Environmental Law Clinic at the UCLA School of Law, said the government also designates a species’ critical habitat – the geographic areas that will be preserved – to help it regain its population numbers.

The changes will direct regulatory agencies to prioritize preserving habitat that species currently use before considering areas they might use in the future. Stein added that the change is a byproduct of the Supreme Court’s decision last year in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, a case over critical habitat for the dusky gopher frog.

The endangered frog once lived in the longleaf pine forests that covered the southeast U.S., but most of those forests have been removed for urban development, agriculture and timber plantations. The species is now only found in Mississippi.

The U.S. Fish and Wildlife Service designated about 1,500 acres of land in Louisiana as critical habitat for the dusky gopher frog because the land has ephemeral ponds, which the frogs need to breed in.

Weyerhaeuser, a timber logging company that owns the land, argued that its property could not be critical habitat for the frog because the species did not currently live there.

Jennifer Garlock, a UCLA law school alumna who specializes in environmental law, helped write a brief on behalf of scientists for the case, arguing that scientists think a species does not need to currently occupy a geographic area for that area to be essential for its long-term survival.

The Supreme Court returned the case to the 5th Circuit, leaving it to the lower court to decide what habitat is.

“They kind of didn’t decide much,” Garlock said. “So it just injected a lot of uncertainty.”

Garlock said conservationists can help recover endangered species by restoring unsuitable habitat. She added that if the currently occupied habitat were enough for a species, it probably would not be endangered.

“It really would gut the Endangered Species Act to say that habitat has to be currently habitable,” Garlock said.

Salzman said he thinks environmentalists will oppose the changes in the courts. He added that the Endangered Species Act has not been significantly amended in decades, so the administration is trying to change how the law is interpreted.

“It’s been a very popular law (and) hard to change it through Congress, which is why the administration is using regulations,” Salzman said. “All of these are going to be challenged.”

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Stephen Liu
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