CEI Comments on ESA Proposed Revisions of the Regulations for Prohibitions to Threatened Wildlife and Plants

Docket No. FWS–HQ–ES–2018–0007


The Endangered Species Act has proven bad for wildlife because it is bad for people.  The Act’s legislative language as passed by Congress is largely to blame, but implementing rules adopted by the agencies have contributed significantly to its failings.  Thus the Competitive Enterprise Institute strongly supports the proposed revisions to the rules.  Most of these changes are long overdue.  In some instances, we think that the proposed changes could go further, but we also recognize that in other instances going further will require Congress to amend the statute.

These proposed revisions address the application of a protective regulation adopted in 1975 (hereafter referred to as the “blanket rule”).[1] The proposed revisions would apply to animal species that are determined to be threatened after the rule becomes effective and only allow application of unique Section 4(d) rules to be applied to such species rather than the blanket rule.[2]

In 4(d) protective regulations, the ESA states:

Whenever any species is listed as a threatened species pursuant to subsection (c) of this section, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a) (1) of this title, in the case of fish or wildlife, or section 1538(a) (2) of this title, in the case of plants, with respect to endangered species; except that with respect to the taking of resident species of fish or wildlife, such regulations shall apply in any State which has entered into a cooperative agreement pursuant to section 1535(c) of this title only to the extent that such regulations have also been adopted by such State.

Currently, the blanket rule applies Section 9’s prohibition against “take” to all threatened animals unless a unique 4(d) rule specific to a particular animal is promulgated. Take is defined in ESA’s Section 2 to include actions that “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct.”[3]

Although Sec. 4(d) indicates that protective regulations are to be promulgated when “necessary and advisable” and to be applied “whenever any species is listed as … threatened,” FWS’s blanket 4(d) rule applies to all threatened species. The blanket rule applies automatically to any animal species that is added to the list as threatened unless a special rule unique to that species is adopted. Essentially, the blanket rule’s default position is that it is “necessary and advisable” to apply the prohibition against take to any and all threatened animals unless there is a special reason not to do so. In effect, with this rule, FWS has through regulation erased the two-tiered system of endangered and threatened species established by Congress.

The blanket rule does not apply only in those cases where the FWS chooses to issue a 4(d) rule unique to a species (a ‘special rule’) at or after the time of listing. The fact that in practice the FWS has designated unique 4(d) rules for many threatened species contradicts the idea that it would be “necessary and advisable” to issue the blanket rule in the first place.

Further, the blanket rule generally prohibits “take” of threatened animal species. When a unique 4(d) rule is promulgated for a particular threatened species, it is generally, if not always, less restrictive than the blanket rule. In effect, unique 4(d) rules exempt some actions from the absolute prohibition against take that would have otherwise been applicable under the blanket rule. Consequently, because of the blanket rule, unique 4(d) rules promulgated after the blanket rule was promulgated effectively function as exemptions to the protective regulations that would otherwise apply.

If 4(d) rules had been intended to function as exemptions, the logical place to vest the Secretary with such authority would be in Sec. 10, which addresses exemptions. While one might argue Sec. 9 prohibited acts would also be an appropriate location to provide the authority created by Sec. 4(d), the fact that it occurs in the section establishing the process for determining endangered and threatened species which culminates with listing lends weight to the argument that 4(d) rules were generally intended to be promulgated when a threatened species is added to the list.

Restoring the distinction between endangered and threatened species intended by Congress will likely be an improvement from the perspective of conservation, implementation and compliance. In its proposed regulation, FWS recognizes this itself when it states, “[w]here we have developed species-specific 4(d) rules, we have seen many benefits, including removing redundant permitting requirements, facilitating implementation of beneficial conservation actions, and making better use of our limited personnel and fiscal resources by focusing prohibitions on the stressors contributing to the threatened status of the species.”

Restoring the distinction between endangered and threatened species will likely create an environment with several dynamics beneficial to conservation. The current regulatory regime under the blanket rule may discourage landowners from taking part in conservation activities to prevent a threatened animal from being uplisted (that is, changed from threatened to endangered status). If there is no real change in the regulatory burden when changing a species’ status from threatened to endangered, having the species uplisted may make no difference to a landowner. Similarly, there is less incentive to help improve an animal’s status from endangered to threatened (that is, downlisted) if the change makes little practical difference to landowners, as is now the case when blanket take prohibitions are applied. Overall, the blanket rule likely increases conflict between landowners and regulators, as more acts potentially run afoul of more species, and the species, being threatened as opposed to being endangered, are generally more likely to be more numerous or widespread.

The proposed regulation would restore the distinction between threatened and endangered for those species listed as threatened species on or after the effective date of this rule. For the reasons addressed above, doing so is appropriate, on firm legal ground, and likely substantially better for conservation. This change would require FWS to promulgate 4(d) rules in the same manner the NMFS has, and as FWS notes, for more than 40 years NMFS has “successfully implemented the provisions of the Act using this approach.” FWS states that it has “gained considerable experience in developing species-specific rules over the years,” which indicates that adopting this rule is something to which the agency can readily adjust.

Adopting this revision would inarguably be consistent with the law for those species listed after the effective date of the regulation. As the proposed rule applies only to species listed after it becomes effective, the question remains as regards those threatened species to which the blanket rule is now applied. To restore the two-tiered listing process established by Congress, FWS could establish a schedule whereby it adopts unique special rules for currently listed threatened species when the agency conducts a five-year review for each species as required by the ESA’s Sec. 4(c)(2). In that these reviews typically include an analysis of the threats facing a species and the conservation measures that have been taken, FWS could work through the backlog of threatened species to which the blanket rule has been applied on the same schedule as the preparation of legally-required five-year reviews.

In its proposed regulation, FWS asks whether it would be preferable to establish a limited time for promulgation of 4(d) rules. Generally, applying 4(d) rules concurrently with listing determinations is likely to be most beneficial. Issuing such rules in accordance within a set timeframe provides the affected public with more information, which is clearly valuable to those who may be affected by the regulation. Coupling 4(d) rules issued concurrently with threatened species’ listings with the separate proposed revision by the Services that would allow discussion of economic analysis in listings would improve overall transparency and accountability.

Respectfully submitted,

Myron Ebell

Director, Center for Energy and Environment

Competitive Enterprise Institute

1310 L Street, N. W., Seventh Floor

Washington, DC 20005

1 U.S. Fish and Wildlife Service and National Marine Fisheries Service, “Proposal to Reclassify the American Alligator and Other Amendments,” Federal Register, Vol. 40, No. 188 (September 26, 1975), p. 44425.

2 For a longer discussion see: Robert Gordon, “Take it Back: Extending the Endangered Species Act’s “Take” Prohibition to All Threatened Animals Is Bad for Conservation,” Heritage Foundation, 2017,  https://www.heritage.org/government-regulation/report/take-it-back-extending-the-endangered-species-acts-take-prohibition; and see: Jonathan Woods, “Take it to the Limit: The Illegal Regulation Prohibiting the Take of Any Threatened Species Under the Endangered Species Act,” Pace Environmental Law Review, Vol. 33, No. 1 (Fall 2015), http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1784&context=pelr.

3 Endangered Species Act, Prohibitions, Section 9(a)(1).