Endangered Species Regulation Under the New Administration

USFWS will seek to reinstate 2017-2021 Trump-era regulations reversed by the Biden Administration:

Background: The U.S. Fish & Wildlife Service (“USFWS”) is the federal agency within the Department of the Interior primarily responsible for wildlife, plant, and habitat conservation, including the implementation the Endangered Species Act (“ESA”), Migratory Bird Treaty Act (“MBTA”), and Bald and Golden Eagle Protection Act. The National Marine Fisheries Service (“NMFS”) performs parallel functions for oceanic species under the ESA and the Marine Mammal Protection Act. The various regulations issued under these statutes can significantly affect project development, as regulations that lower thresholds for finding harm or endangerment, or that expand protected habitat will disproportionately affect land-intensive businesses. During the first Trump Administration, USFWS and NMFS promulgated a series of rules revising the implementing regulations of Endangered Species Act. The notable changes included (1) publishing the economic impacts of listing decisions, (2) limiting when unoccupied habitat could be designated as critical habitat, (3) removing the “blanket rule” that automatically extended endangered-level protections to threatened species, and (4) limiting the reach of foreseeable effects to, for example, mute how much agencies would need to consider impacts from distant-future climate change. Also during President Trump’s first term, USFWS enacted a rule codifying the principle espoused in several circuit court decisions that the Migratory Bird Treaty Act does not prohibit incidental take. The Biden Administration reversed course on each of these fronts. USFWS and NMFS under the Biden Administration also revised their regulations to allow them to require mitigation offsets where federal agency actions might impact ESA-listed species or habitats.

Outlook: Statutes like the ESA are often cited as examples of bureaucracy holding back much-needed infrastructure and energy development, and it seems likely that the second Trump Administration will seek to reverse many of the Biden Administration’s actions. President-elect Trump is widely expected to issue a suite of Executive Orders directing agency action in the week following inauguration (as is becoming the norm of incoming presidential administrations). Direction to enhance energy independence could, for example, include instructions to USFWS and NMFS to review and update their rules to facilitate the types of development the Trump Administration seeks to foster. To the extent the agencies succeed in reinstating the suite of regulatory updates introduced during President Trump’s first term, businesses may face fewer or less stringent endangered species-related restrictions on their land use and operations.

Congress may proactively legislate de-listings or other changes to ease burdens associated with species protections, especially certain hot-topic species.

Background: From time to time, Congress considers bills that would change the ESA and similar statutes, or otherwise direct USFWS’s and NMFS’s policies and activities. The most sweeping changes could come through substantive amendments to the underlying statutes (e.g., the ESA), or the bill could be narrowly tailored to specifically exempt certain areas, activities, or species. Congress also wields the power of the purse and can use restrictions on funding or enforcement to limit some agency activities. Notably, the Chairman for the House Committee on Natural Resources introduced the Endangered Species Act Amendments Act in September 2024. This bill, which awaits consideration on the House floor, would enable private landowners who engage in conservation efforts with USFWS to avoid critical habitat designations of their properties, limit judicial review during the five-year monitoring period following a species de-listing, place caps on attorney fee recovery for ESA-related litigation, and limit the use of mitigation and offset conditions in permits, among its other amendments to the ESA. The concepts embedded in the bill may gain legislative traction given the undivided Congress in 2025.

Outlook: Republican Party control of both Congressional chambers and the Presidency grants the Trump Administration multiple avenues to pursue its priorities. One such priority is to increase American oil and gas production and to ease regulatory burdens on energy infrastructure projects. Congressional Republicans may seek to amend the ESA to reduce its impact on energy-related industries and others. While any general amendatory legislation would likely provide moderate benefits to regulated parties, Congress may alternatively or concurrently choose to legislate specific ESA listing mandates or exceptions for certain industries activities or infrastructure projects related to a few high-profile species. For example, the listings of the Dunes Sagebrush Lizard (“DSL”) has spurred protest and legal challenges from the oil and gas sector and states with affected lands, notably Texas. Congress could, conceivably, legislate the de-listing of the DSL or legislate exceptions to the ESA’s prohibitions for certain energy production and infrastructure projects. A legislative de-listing would likely be faster and more secure from collateral litigation than using the USFWS/NMFS rulemaking process to pursue the same ends.

Federal courts may resolve longstanding uncertainties regarding the scope of and agency authority under the Endangered Species Act and Migratory Bird Treaty Act.

Background: For the last few decades, Courts have typically deferred to reasonable agency interpretations of federal statutes, like the ESA and MBTA, under the principle of Chevron This practice was overruled by the Supreme Court in its 2024 Loper Bright decision. Now, Courts are expected to take primacy in interpreting statutory language, opening up agency rulemaking to additional scrutiny where discretion is not explicitly granted by law. Several ESA and MBTA provisions at issue in the flip-flopping regulatory regime discussed above are potential candidates for final judicial determination in the post-Loper Bright landscape. One example is the MBTA prohibition on incidental take (i.e., unintentional harm and harassment) of migratory birds, where the circuit courts have already split on this question, and where the USFWS has taken alternating positions during the last two presidential administrations. A second example is whether the ESA allows for economic or other policy considerations in USFWS listing determinations. Again, USFWS took alternating positions on this question between the Trump and Biden administrations.

Outlook: If the Trump Administration reverses course in ways we discuss above, we expect litigation will follow quickly. Now, in the post-Loper Bright era, courts will adjudicate these legal questions in the absence of Chevron deference. This means the courts will need to more definitely determine what the ESA and other species-protection laws authorize the USFWS and NMFS to consider, regulate, and enforce. Having an issue judicially settled may reduce some of the uncertainty and variability that has plagued project development in recent years. Judicial decisions could also catalyze proactive legislation from Congress where a decision could constrain or prompt USFWS/NMFS decision-making in ways Congress disapproves.