The Endangered Species Act Regulations: Part 3 — The Ugly

In previous blog posts, Defenders of Wildlife’s Biodiversity Law Center provided an overview of the importance of well-drafted Endangered Species Act (ESA) regulations for imperiled wildlife. This three-part series has looked at the 2024 changes to these regulations, breaking those changes into “the good, the middling, and the ugly.”   

Today’s post covers this last category: the parts of the 2019 and 2024 ESA regulations that harm species conservation and undermine the ESA. (To be precise, the changes were first introduced in the 2019 regulations, but the 2024 regulations failed to correct these problems.) Unfortunately, most of the revisions made to the process for “interagency consultation”—the ESA process aimed at preventing federal agencies from taking actions likely to jeopardize species’ existence or destroy their critical habitat—fall into this category.  

What is consultation?

Under section 7 of the ESA, “[e]ach Federal agency shall, in consultation with [the federal wildlife agencies—that is, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service], insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [designated critical] habitat” for listed species. 16 U.S.C. § 1536(a)(2). This section sets up a process under which, when a federal agency proposes to take an action that may affect listed species or their designated critical habitat, that “action agency” must first consult with the appropriate wildlife agency. The consultation must ensure that the proposed action is not likely to jeopardize listed species or destroy or adversely modify critical habitat.  

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Keith Ramos/FWS

What regulatory changes have been made to the consultation process?

The 2019 regulatory revisions made several important changes to the consultation process. Congress intended the consultation process to protect listed species and their habitat in a meaningful way. All of the 2019 changes undermined that intent. Unfortunately, most of those changes were left in place in the subsequent 2024 regulatory package. The changes include:  

• Limiting the scope of changes to critical habitat that are considered “destruction or adverse modification.” Under the 2019 and 2024 regulations, “destruction or adverse modification” of critical habitat is now defined to mean only destruction or adverse modification of critical habitat “as a whole.” This change threatens to allow wildlife agencies to greenlight small-scale destruction of critical habitat, so long as the entire, nationwide critical habitat area is not destroyed. Species like the desert tortoise—which has a large area of designated critical habitat that may not always be impacted “as a whole” by any single project—may face “death by a thousand cuts” as a result.  
   

• Allowing agencies to inflate the baseline condition of a species. The 2019 and 2024 regulations fold the consequences of “ongoing” agency actions into the “environmental baseline.”  The environmental baseline is important because, as part of the consultation process, the wildlife agencies analyze the effects of agency actions by adding those effects to the environmental baseline. Inflating the baseline is an accounting trick that shifts harms from the “effects” to the “baseline” side of the ledger. This obscures the harms of agency actions by making the effects look small in comparison with the existing picture, increasing the temptation to dismiss new harmful effects as minor. Baseline inflation can allow long-running problems to go unaddressed. For example, Pacific northwest river fish are often imperiled by large, decades-old dams that block their passage. If harms from dams are always folded into the baseline, the threats to these species may not be meaningfully addressed in consultation.  

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  Ryan Hagerty/USFWS
• Allowing agencies to promise to mitigate harm from their actions without following through. The ESA bars any agency action likely to jeopardize a listed species or destroy its critical habitat. Mitigation measures are sometimes used to ensure that an action does not violate these statutory prohibitions. Under the 2019 and 2024 regulations, agencies can now merely promise to mitigate harms for their actions without any “additional demonstration of binding plans.” This means agencies can commit to mitigation on paper—closing the consultation process and greenlighting potentially harmful agency action—without making sure that the mitigation will ever actually occur. 
   
• Raising the bar for harmful consequences to agency actions to be included in consultations. A critical part of the consultation process involves identifying what “effects” the proposed action will have on listed species and critical habitat. The 2019 and 2024 regulations exclude certain harmful consequences of proposed agency actions from being evaluated in consultation. For example, the only “effects” that are now included in consultation are those that are “reasonably certain” to occur. This definition improperly excludes from consultation consequences that are  unlikely in comparison to other consequences, but would be catastrophic—such as oil spills.