October 15th, 2018

The Trump administration is trying to strip wildlife of all legal protections. The latest move is an attack on the very cornerstone of U.S. environmental law - the Endangered Species Act (ESA). Sea Shepherd Legal is fighting to keep the ESA intact.

Acting at the behest of President Trump and his closest advisors, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, the “Services”) are pushing for major modifications to the rules implementing the Endangered Species Act (“ESA”). Not surprisingly, the Services do not admit that these are significant changes and certainly do not disclose their motive: the erection of new barriers to listing species and designating critical habitat under the ESA.

While the Services want the public to believe that they are simply bringing the regulations “up to date,” a careful read reveals a more insidious agenda. Together with other proposed changes to the ESA and attacks on nearly every major federal environmental program, the present rulemaking forms part of an orchestrated assault on our nation’s conservation framework.

Sea Shepherd Legal is not accepting these changes without a fight. On September 19th, we filed comments pushing back on these changes. In our comments, we analyzed three proposed changes that illustrate the Services’ true intent. Here, we highlight just one of these changes—and show how it serves as a stealth attack on the ESA’s spirit of conservation. (See our full submission here.)

  • The Services’ Proposed Definition of “Foreseeable Future”: Codified Antagonism Toward the Precautionary Principle

The ESA defines an “endangered species” as any species that is “in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6).Leveraging this definition, the ESA in turn defines “threatened species” as any species “that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. at § 1532(20).The term “foreseeable future” is defined neither in the statute nor in implementing regulations.

In the proposed rulemaking, the Services seek to define “foreseeable future” for the first time. The Services propose to add the following regulatory language to 50 C.F.R. § 424.11: “The term foreseeable future extends only so far into the future as the Services can reasonably determine that the conditions potentially posing a danger of extinction in the foreseeable future are probable.”

While the Services argue that this merely codifies “current practice,” it is clear that the Services are attempting to limit determinations of “threatened” status (which, again, requires a finding that the candidate species “is likely to become an endangered species within the foreseeable future”). The Services’ tack is clever; the significance of this amendment only becomes apparent upon comparison with the precautionary principle.

A bedrock tenet of environmental law around the world, the precautionary principle favors protective measures. The most widely cited iteration of the precautionary principle is contained in the Rio Declaration on Environment and Development. This version of the precautionary principle, which is in fact considered “weak” compared to other iterations, reads as follows: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” Rio Declaration on Environment and Development, U.N. Conference on Environment and Development, Annex I, princ. 15, U.N. Doc. A/Conf.151/5/Rev.1 (1992). In other words, governments are commanded to act in a precautionary manner by erring on the side of preventive action.

What the Services proposes in its changes, its precisely the opposite approach. They are setting the stage to deny listing species as threatened unless “the conditions potentially posing a danger of extinction in the foreseeable future are probable.” Unless a proponent can show that “the conditions potentially posing a danger of extinction in the foreseeable future are probable,” the Services will have the obligation (not just the authority) to deny such relief.

A not-so-hypothetical example illustrates how the Services might employ this new definition in practice. Imagine that an environmental group seeks to list the Pacific walrus as "threatened" under the ESA on the grounds that greenhouse gas emissions are causing the disappearance of critical sea ice. With the new regulation in place, the Services could invoke the “foreseeable future” definition to deny the petition. Even if the Services were to acknowledge the reality of climate change in the present, the Services will likely claim that it is “speculative,” rather than “probable,” that such conditions will continue to exist in the “foreseeable future."

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Despite the Services’ attempts to trivialize the proposed changes, a closer analysis shows them for what they are: calculated maneuvers to stack the deck against new listings and designations of critical habitat. Sea Shepherd Legal is calling the bluff.

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