CEI Comments on the Proposed Rescission of the Blanket 4(d) Rule
Dear Mr. Tirpak,
On behalf of the Competitive Enterprise Institute, I appreciate this opportunity to provide comments on the Fish and Wildlife Service’s (FWS) proposed rule, “Endangered and Threatened Wildlife and Plants; Regulations Pertaining to Endangered and Threatened Wildlife and Plants.”
There is too often a misconception that more regulatory intervention is the best way to protect species. In fact, the opposite is true. An excellent example of problematic regulatory intervention is the FWS’ blanket 4(d) rule. This is why I commend the agency for proposing to rescind this flawed policy. Getting rid of the blanket 4(d) rule will not only help threatened and endangered species recover by improving the implementation of the Endangered Species Act (ESA) but also benefit property owners by strengthening property rights.
This comment is divided into four parts. Part I explains why the blanket 4(d) rule is unlawful and inconsistent with the ESA. Part II explains how rescission will make FWS’ implementation of the ESA consistent with the National Marine Fisheries Service (NMFS) implementation. Part III discusses how rescinding the blanket 4(d) rule will help recover threatened and endangered species by creating better incentives for non-federal actors to play a more active role in species conservation. Part IV will debunk the idea that rescinding the blanket 4(d) rule will leave threatened species defenseless.
- The blanket 4(d) rule is unlawful
The ESA distinguishes endangered species from threatened species by automatically applying section 9 “take” prohibitions to endangered species but not automatically applying the take prohibition to threatened species. Instead, the Secretary has discretion to apply some (or all) of the take prohibitions to threatened species on the condition that he can show that doing so is “necessary and advisable.” The blanket 4(d) rule overrides this structure by automatically applying the take prohibitions to threatened species without any such analysis.
If Congress intended the section 9 take prohibitions to apply automatically to threatened species, it would have said so explicitly, as it did for endangered species. The absence of such language suggests Congress expected threatened species to be regulated differently.
Further, section 4(d) of 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 ‘necessary and advisable’ language is a means to ensure that the agency is carefully considering the ramifications of adopting regulations for threatened species. This language indicates that Congress expected the agency to engage in a reasoned, species-specific analysis of regulatory consequences of the regulations.
However, the blanket 4(d) rule applies the take prohibition without requiring FWS to show that it is necessary and advisable for each threatened species. As a result, the agency is getting around the careful analysis that Congress expected prior to promulgating such regulations. Even worse, the agency does not conduct any analysis whatsoever when taking this default position that take should apply for threatened species.
- NMFS has rightfully never interpreted the ESA as allowing the blanket 4(d) rule
There are two federal agencies responsible for implementing the ESA: the FWS and NMFS. The FWS has adopted the blanket 4(d) rule, but NMFS has never adopted such a policy.
NMFS has always properly interpreted the law regarding the application of take to threatened and endangered species. Not only has this not hurt NMFS species protection efforts, but it also appears to have helped their recovery rates. In fact, as explained by PERC’s Jonathan Wood, NMFS has a recovery rate of 6.7 percent while FWS only has a recovery rate of 2.5 percent.
While many factors contribute to these outcomes, the agencies’ differing approaches under section 4(d) is likely one of them. Aligning FWS’ implementation with NMFS’ model could improve consistency and potentially conservation outcomes.
Moreover, both agencies implement the same statutory text yet take wildly different approaches. NMFS has got it right. FWS should be following their lead and use the interpretation that makes the most sense consistent with the plain language of the statute and the legislative history.
- The blanket 4(d) rule creates perverse incentives
Americans value species conservation and are concerned about endangered and threatened species. However, there is a cost to protecting species and the way the law is currently implemented imposes a disproportionate amount of those costs on private landowners when it should be borne by society.
When a listed species is present on private property, the value of that property often decreases because the section 9 prohibition on take restricts activities that could harm the species or its habitat. For example, a landowner engaged in timber harvesting may face legal risk or operational limits if harvesting could incidentally take a listed bird species, such as by destroying active nest sites or modifying habitat in a way that injures the species.
Unsurprisingly, humans respond to incentives and disincentives, as they should. This reality exists in all aspects of life, including species conservation.
Property owners have an incentive to make sure that their land is not suitable habitat for a listed species because the presence of a listed species can trigger section 9 take restrictions that limit land use. Numerous instances show that this incentive has real life consequences. In fact, there are many examples of landowners who have preemptively destroyed potential habitat for listed species which is bad for species recovery.
If the blanket 4(d) rule is rescinded, landowners who participate in the recovery of endangered species will benefit from significant regulatory relief when that species is upgraded to threatened. This gives them skin in the game and an incentive to play an active role in the species’ recovery. Similarly, landowners who participate in the recovery of threatened species will have an incentive to not let the species fall to the endangered status, because that would mean harsher regulations imposed upon them.
When the regulatory burden on private landowners remains the same for endangered and threatened species, recovery produces no meaningful change for the people who bear those costs. As a result, landowners have little reason to participate in conservation efforts.
- Threatened species are not left defenseless
Some people think that if the blanket 4(d) rule is repealed, threatened species will be left defenseless and their populations will be decimated. This is a misconception. Rescinding the blanket 4(d) rule will likely help species recover for numerous reasons, including those discussed earlier.
Even still, there are other statutory provisions in place that will continue applying to threatened species after rescission of the blanket rule. For example, threatened species will continue to receive critical habitat designations pursuant to section 4 of the ESA and the section 7 consultation process will continue to apply to threatened species.
Moreover, repealing the blanket rule does not preclude the Service from applying section 9’s take prohibitions to threatened species. After rescission, the Secretary shall issue species-specific rules as he deems necessary and advisable, and any of those rules may adopt some (or all) of the take prohibition.
- Conclusion
The FWS should move forward with their proposal to rescind the blanket 4(d) rule. If finalized, this policy change will make implementation of the law consistent with both NMFS and the plain language of the statute. Moreover, rescission will create better incentives for non-federal actors to play a role in species conservation.
Sincerely,
Jacob Tomasulo
Policy Analyst
Competitive Enterprise Institute