On Thin Ice

Will the Endangered Species Act survive the Trump administration?

AS SUMMER SEA ICE BEGAN MELTING away in the Arctic last August, some 25,000 Pacific walruses piled onto a barrier island in the northwest reaches of Alaska’s Chukchi Sea in what has become a common occurrence in recent years. It wasn’t always this way. These massive congregations of the tusked pinnipeds on beaches — called “haul-outs” — used to take place only occasionally. As recently as a decade ago, the walruses would more likely have been climbing on to ice floes in smaller packs.

In its annual rhythm of growth and melt, sea ice across the Arctic Ocean extends as far south as the Bering Sea in winter and gradually retreats back north into the Chukchi Sea over spring and summer. Female and young walruses typically follow the ice, migrating from the Bering Sea into the Chukchi Sea during the warmer months, using ice floes along the shallow continental shelf to rest between their foraging dives as well as for socializing, giving birth, and nursing their young. (Most adult males remain in the Bering Sea year-round where ice forms only in the winter. They rest on land during the summer.)

But as our oceans warm, summer sea ice has been melting faster and increasingly can only be found farther north, hovering over water more than 3,000 meters deep. That’s far too deep for walruses to dive for food. So come summer, they are left with no option but to come ashore on the Alaskan and Russian sides of the Chukchi Sea.

This doesn’t bode well for the Pacific walrus. The World Wildlife Fund (WWF) estimates the walruses in these haul-outs are traveling up to an extra 250-miles round trip from the waters they normally forage in, a journey young calves can’t make and one that leaves nursing females depleted of fat and energy. On shorelines, young walruses face significant threats from predators, human disturbance, and trampling by other walruses. When spooked, walruses will stampede for the water and large male walruses can easily crush smaller animals.

“They are not meant to congregate on land,” notes Leda Huta, executive director of the wildlife advocacy group Endangered Species Coalition. “They don’t survive without ice.”

Pacific walruses face other growing threats as well. Ocean acidification threatens to reduce their food supply. Plans for oil and gas development in the Arctic heighten the risk of oil spills and increases in noise pollution and harassment from ships and aircraft. The size of the Pacific walrus population isn’t exactly known — scientists peg it at about 283,000, with the caveat that it could be as low as 93,000 or has high as 478,975. Confusion about their numbers aside, everyone agrees that populations have been steadily declining.

Given these challenges, conservationists have been trying to protect the walrus under the Endangered Species Act (ESA). It hasn’t been a straightforward task. The marine mammal was first nominated for inclusion on the endangered species list back in 2008. In 2011, the US Fish and Wildlife Service (FWS) determined that listing the Pacific walrus as “threatened” or “endangered” was warranted, and added the species to the “candidate” list for ESA protections, where it lingered for six years. FWS was required to make a final listing decision by 2017. But in October 2017, the agency, which was by then under the Trump administration, reversed course, finding that the marine mammal didn’t need to be listed. In making the new determination, the agency explained that the long term “impacts of the effects of climate change on the Pacific walrus population are based on speculation, rather than reliable prediction.” Last spring, as Arctic sea ice was hitting yet another record low, the Center for Biological Diversity (CBD) sued the Trump administration over the decision. The lawsuit is still pending.

It’s not just the walrus’s fate that is hanging in balance. The very law that conservationists hope will help protect this animal, as well as many other species that are in peril — the ESA — is skating on thin ice, with its powers increasingly challenged by an administration that has little patience for laws and regulations that help protect our lands and wildlife.

THE US ENDANGERED SPECIES ACT, now 45 years old, is one of the most powerful laws designed to offer protection to species — as large as the walrus and as small as a snail — which may be facing extinction due to human action. When it was enacted with bipartisan support in 1973, the Congress noted that “various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation.” The purpose of the Act, it said, was “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.”

The Act authorizes federal agencies to identify at-risk species and list them as either threatened or endangered, and requires them to take necessary actions to conserve those species and their habitats. Once a species gets placed on the endangered species list, federal laws restrict killing and harassing survivors or destroying their habitat. At-risk species in other countries can also be protected by the ESA through the prohibition or regulation of trade in live animals or their parts and products.

Gray Wolves were listed as endangered in the lower 48 states in 1975. In early March, the Fish and Wildlife Service proposed delisting them. Photo by Jean
Gray wolves were listed as endangered in the Lower 48 states in 1975. This week, the Fish and Wildlife Service proposed delisting them, pointing to rebounding population numbers in the West. Photo by Jean Beaufort.

The ESA currently protects more than 1,600 native plant and animal species in the US and its territories, and foreign ones like chimpanzees and African elephants as well. In the nearly half century that it has been around, the law has helped pull 99 percent of species under its protection back from the brink, according to the FWS’ own data. These include iconic creatures like the grizzly bear, humpback whale, and gray wolf, and lesser known critters like the piping plover, black-footed ferret, and Miami blue butterfly. And it has helped put hundreds more plants and animals on the road to recovery.

Despite these successes, the ESA has always had a fair share of detractors — typically oil and gas execs, big ag companies, ranchers, landowners, and those opposed to federal oversight — largely because of the restrictions it places on land and water use. These critics say the law is overly cumbersome, hinders business and economic growth, and unduly burdens landowners whose property happens to fall within the habitat of a designated endangered species. They also argue that the ESA isn’t effective in protecting wildlife in any case, citing the FWS statistic that less than 2 percent of the species on the endangered list have recovered enough to warrant removal from the list.

Over the years, there have been many legislative attempts, usually backed by industry interests, to restrict what the Act can and cannot do. According to the CBD, which has been keeping a running tally of these congressional bills, since 1996 there have been more than 400 pieces of legislation introduced seeking to dismantle critical species protections. These bills include proposals to prematurely strip federal protections from specific species such as the sage grouse and African elephant, to underplay the role of science in listing decisions, and to prioritize the role of states instead of federal wildlife experts when it comes to implementing the Act. Often, these proposals are tacked on as riders to must-pass spending bills, such as the 2011 budget rider that removed protections from gray wolves in the northern Rocky Mountains. The majority of the bills, more than 300, were introduced since 2011, when Republicans took control of the House of Representatives. Under the Trump administration, efforts to undermine the ESA have, unsurprisingly, escalated further. In just the two years since Trump was sworn in as president, at least 80 bills seeking to undermine the ESA or remove species from the list have been introduced in Congress.

The most critical blow to the Act has come from the federal agencies charged with implementing the ESA — the Interior Department’s FWS, which is responsible for plants, wildlife, and inland fisheries, and the Commerce Department’s National Marine Fisheries Service (NMFS), which implements the ESA with respect to ocean-going fish and marine mammals. In July last year, the two agencies jointly proposed revisions to how the Act is implemented, suggesting, among other things, that species designated as “threatened” should no longer automatically receive the same protections as those designated “endangered,” but should instead be considered on a case by case basis. In other words, there would be no automatic prohibitions on the harming or killing of plants and animals designated “threatened.” They further proposed that the restriction against considering economic impact when determining whether or not a plant or animal needed protection be removed.

If the proposal goes through, it would become more difficult to add a new species, like the Pacific Walrus, to the list. Environmentalists fear that the changes would also make it easier to delist species because their habitats are desirable to industry. The revisions are scheduled to be finalized this spring, though the federal government shutdown may delay the process.

CONSERVATIONISTS AGREE THAT the ESA’s track record is a mixed bag. They argue, however, that the mixed record isn’t due to any flaws in the act per se, but rather because of how it is enforced. “The Fish and Wildlife Service, under this government in particular, is not implementing the law. It’s denying science, it’s telling field staff to not enforce the law,” says Noah Greenwald, endangered species director at the CBD.

That’s not entirely surprising. Those currently directing the FWS are hardly known for their dedication to protecting needy fauna and flora, and are the ones leading the efforts to undermine the ESA from within, environmentalists say. FWS Director Aurelia Skipwith used to work with the agribusiness giant Monsanto. And acting Interior Secretary David Bernhardt, whom Trump nominated for the department’s top job in February, spent eight years as a fossil fuels and water industry lobbyist and once led a lawsuit attempting to undermine the ESA on behalf of corporate clients. In an August 2018 op-ed in The Washington Post Bernhardt wrote that the way the law is implemented makes for an “unnecessary regulatory burden.”

Not so, say the ESA’s supporters, pointing to the Act’s flexibility. The ESA requires federal agencies to work with states, businesses, and private landowners to find science-based, voluntary conservation agreements that address the needs of the stakeholders in question as well as the plant or animal of concern.

One such collaborative effort is the reintroduction of the black-footed ferret to the Northern Great Plains. Over the past three decades, the FWS has worked with many state and federal agencies, zoos, Native American tribes, conservation groups, and at least 18 individual landowners to reintroduce the species, once feared to have gone extinct and listed as endangered under the ESA, back to its natural habitat. Those efforts have helped restore the black-footed ferret population to nearly 300 animals, giving it a fighting chance of survival.

A multi-stakeholder reintroduction effort has helped prevent the black-footed ferret from disappearing from the Northern Great Plains. ESA supporters see that as a success story. Its critics probably don't. Photo Ryan Moehring / USFWS
A multi-stakeholder reintroduction effort has helped prevent the black-footed ferret from disappearing from the Northern Great Plains. ESA supporters see that as a success story. Its critics probably don’t. Photo by Ryan Moehring / USFWS.

To the critics of the ESA though, the black-footed ferret doesn’t represent a success story.

Since habitat loss and disease remain major threats to this highly endangered species, it belongs to the 98 percent of listed critters that haven’t recovered enough to warrant delisting. What these critics fail to understand is that it is easier to prevent a species from disappearing than to restore it to previous levels or back to a level where it plays a significant role in an ecosystem, says Huta of the Endangered Species Coalition. “These things take time,” she notes. A population can disappear quickly or gradually, but it takes many generations to build it back up.

Take the ESA’s most well-known success story — the bald eagle. It took the bird of prey, among the first species to be listed under the ESA, more than 30 years to rebound enough to warrant delisting in 2007. Given that nearly half of all species on the endangered list have been protected for less than two decades, the low delisting rate is not an indicator of the Act’s inefficiency.

The argument that the Act has been a significant roadblock to development doesn’t pan out either. A study in the Proceedings of the National Academy of Sciences looked at 88,290 ESA-mandated consultations — which ensure development projects do not adversely affect threatened or endangered species — from 2008 through 2015, and found that most of these consultations were completed “within a matter of weeks” and not a single one of these projects “was stopped because of the FWS finding that a project would threaten a species’ survival.”

A population can disappear quickly or gradually, but it takes many generations to build it back up.

What does get delayed inordinately though, is the listing of hundreds of species that need protection at a time one-in-five animal and plant species in the US is threatened with extinction and the rate of species extinction worldwide is 1,000 times greater than it would be naturally. Legally speaking, agencies have to evaluate a petition to protect a species within 90 days, and in special cases have at most a year to determine whether to list it. But right now there are more than 500 species waiting for consideration, some of which, like the American wolverine, lesser prairie chicken, and the Hermes copper butterfly, have been waiting for more than 20 years and might never recover. (While the FWS and NMFS do sometimes identify and list species on their own, nearly 80 percent of species on the endangered list have been included following petitions or suits by citizens or conservation groups.)

“The levels of review they put listings through are just mindboggling,” Greenwald says. “A peer review process normally involves three reviewers and one editor. That’s a highly effective process. Yet FWS’ review process involves 15-20 people, scientists, regional directors, FWS’ director, many people who know nothing about the species in question. Species have actually gone extinct waiting for protection.” In a 2004 study, the CBD found that 42 US species — including birds like the Guam broadbill and cardinal honey-eater, a freshwater mussel called the Ochlockonee moccasinshell, and plants like Hoffman’s jewelflower and four-angled pelea — went extinct between 1973 and 1995 due to delays in the listing process. The organization calls the candidate list “an extinction waiting room.”

It took the bald eagle more than 30 years to rebound enough to warrant delisting in 2007. Photo Eric Bégin
It took the bald eagle more than 30 years to rebound enough to warrant delisting in 2007. Photo Eric Bégin

In 2016, following a settlement with the CBD and WildEarth Guardians over several suits regarding listing delays, the FWS adopted a seven-year plan to address its backlog. But progress has been slow under the Trump administration, which added only 16 species to the list in its first two years — “the fewest protected by any administration in its first two years” since the first Reagan term, Greenwald points out. By comparison, the Obama administration listed 72 species and the Clinton one listed 196 during their first terms. (Note: EIJ was unable to contact federal officials for this story as it was reported during the government shutdown.)

Getting placed on the list, however, doesn’t mean much if the government doesn’t do its job of protecting the species. The federal government’s inability or failure to take concrete steps to protect listed species, too, has been the subject of numerous lawsuits. In January, for instance, the Natural Resources Defense Council (NRDC) sued the Interior Department for “failing to designate critical habitat for the rusty patched bumblebee more than a year after the species was put on the endangered species list.” The FWS’ own website says the bumblebee count “declined by 87 percent in the last 20 years.” The NRDC initially sued in 2014 to get the species on the list. “We found we needed to sue at every step of the process to get the protection the bumblebee deserves,” says NRDC lawyer Lucas Rhoads.

These aren’t the only backlogs FWS faces. Private landowners and developers who want to alter habitat for listed species or need an incidental take permit, too, face similar, frustrating waits. (An incidental take permit gives the holder permission, essentially, to incidentally harm or kill species protected under the ESA.) “It can take years to get those permits,” says Leigh Henry, director of wildlife policy and wildlife conservation at WWF. These delays drive political opposition, especially among rural landowners and developers who often suffer some economic setback when a listed species is found on or near their property.

Conservationists like Greenwald and Huta say many ESA delays and inefficiencies can be traced to deficient funding. The FWS, which oversees the bulk of ESA petitions and species recovery efforts, spends about $1.4 billion a year to protect threatened plants and animals, according to the agency’s most recent expenditure report in 2016. Environmentalists say the amount is not nearly enough.

A 2016 study in the journal Issues in Ecology, estimated that the agency’s total spending over the past 15 years had covered only about a third of the listed species’ recovery needs, and nearly half that investment went to just ten species, seven of them fish. How the agency chooses to allocate funds is less based on need and “more often driven by political and social factors, including congressional representation, the number of employees in field offices, staff workload, and opportunities to form partnerships and secure matching funds,” the study says. In other words, says Greenwald, the agency “has become more concerned with avoiding controversy than with saving endangered species.”

THE GOOD NEWS, SAYS GREEWALD, is that “we just went through two years of a Republican-led House and Senate and White House, and they really couldn’t pass any substantial legislation weakening the ESA. I think that’s a testament to how popular the law is.”

Indeed numerous polls have found that most Americans — regardless of their political leanings — value the ESA’s role in protecting our wildlife and natural heritage. The Interior Department’s proposal to revise how the Act is implemented, for instance, received comments from more than 70,000 organizations, scientists, and other individuals, mostly in support of the ESA. Hundreds of thousands of people signed protest petitions as well, and 105 members of Congress wrote in opposition, saying that “the sweeping changes include proposals that would wrongly inject economics into what should be purely science-based decisions about listing imperiled species … and further imperil endangered species by blinding federal agencies to the broad consequences of their actions.”

Now that Democrats have control of the House, Greenwald believes the ESA “might be out of the woods” for a while. “Truthfully the people who proposed most of the attacks are friends of the friends of industry, and they are catering to a small minority of wealthy individuals who are out of step with the American public,” he says.

But, to paraphrase Thomas Jefferson, when it comes to saving the environment, every victory is temporary. While the battle over the fate of the ESA plays out, across this country and the world, species continue to disappear. The last known member of Achatinella apexfulva, a species of Hawaiian tree snail, died in January. In December, the Ozark pyrg, another snail, this one found in Arkansas, was believed to have vanished for good. The only remaining northern white rhino stopped breathing last year. The ESA can’t save all species, but it has prevented many from dropping off the face of the Earth. And it has the potential to save many more if it gets the support it needs from those in charge of implementing the Act. As WWF’s Leigh Henry warns: “We don’t always get a second chance.”

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