What the Devil won't tell you
Trump's Endangered Species Act rollback is not the end of the world ... just habitats
Sometimes I think progressives, liberals and the activists who love them would be better served discussing their priorities for stuff like loosening immigration rules in the same terms that Republicans use for deregulating other areas.
Accused of being pro-open borders? If it were the Republicans, they would skillfully respond with a dismissive, catch-phrase-filled "pfffft."
"That’s a hysterical reaction to common-sense reforms meant to streamline and modernize job-killing government overreach that fails to achieve its original purposes because of bloated bureaucracy."
Who opposes common sense? Reform is a good thing – not a bad thing. Don’t we all want to streamline and modernize ubiquitously? Job-killing regulations? Who is in favor of those? Bloated bureaucracy? Clutch my pearls!
So Donald Trump's administration is doing their own version of "amnesty," revising how the Endangered Species Act is enforced and saying "maybe not so much with the environment thing."
They couch it in those buzzwords like “streamline” and “modernize.” It's all about "common-sense reforms" to end the job-killing efforts to protect critters like the Sonoran pronghorn and the Pima pineapple cactus.
Insomuch as the administration has the power to do so, it has undertaken sweeping changes environmentalists say will gut, bulldoze and carpet-bomb protections for endangered species in ways not even envisioned by the likes of Dick Cheney or — for the olds — James Watt and Anne Gorsuch (hmm, that last name seems familiar).
Enviro-types also point to a recent United Nations report that starts with the words: "Nature is declining globally at rates unprecedented in human history – and the rate of species extinctions is accelerating, with grave impacts on people around the world now likely …” The authors improperly use a dash and the sentence sort of trails off into attributions in what I imagine is a Swiss accent. But you get the idea.
So, yeah, pro-environment political leaders like U.S. Rep. Raul Grijalva are hyperventilating some about the latest Trump move.
“We are in the middle of an extinction crisis, and President Trump is bulldozing (told ya) the most important tool we have to protect endangered species,” Grijalva said in a statement. Grijalva is chairman of the House Committee on Natural Resources, which has oversight of the Endangered Species Act. “These rollbacks of the ESA are for one purpose only: more handouts to special interests that don’t want to play by the rules and only want to line their pockets.”
Everyone just calm down a sec. It's bad for the environment, absolutely, but we should expect this from an administration run by a president who thinks habitat protection means keeping the 14th green good and mowed.
The ESA has not been rewritten. Environmentalists may have to sue like Goldberg and Osborne to get the law enforced for the near term, but not a letter of the original law has been changed. Those who are plum pissed off have 17 months to work on getting a new president. I don't know that industry is going to go rushing in with blades slashing because the white guys in the C-suites don't know anyone voting against Trump. So what's the hurry? No one would vote for a crazy person like Elizabeth Warren. People don't vote for presidents who are crazy, right? What's the hurry?
When it comes to the ESA, don't cry for the species. Fear for the species' homelands. That's where the battle is really being fought.
But first things first. Let's explain what's really going on.
A tale of two laws
Real quick. It's illegal to harm, harass or kill an endangered or threatened species. So avoid Gila monsters without a top-notch defense lawyer. It's not illegal to build in critical habitat without federal approval so long as no federal permit is required. Most big projects do require a federal permit, at least for water run-off.
Despite what you may read, the administration did not change the Endangered Species Act. Only Congress can do that if a president affixes his or her signature. However, the act itself is only part of the law as it relates to the country.
Almost invariably, there are two types of law. Legislation and the administrative rules the executive branch uses to enforce law. Legislative law says drivers can avoid points for a speeding ticket if they attend traffic school. Well, what’s a traffic school? Who teaches it? How do those teachers get certified? Will a stern talking to from Uncle Buddy work? Administrative rules sort all that out with the force of law. The executive branch will figure that out and enforce the rules accordingly.
That’s what the Trump administration is doing. It’s changing the enforcement mechanisms of the Endangered Species Act, rather than rewriting the act itself. The new rules will govern the U.S. Fish and Wildlife Service, which exists to protect endangered species.
The changes better reflect the law’s original intent, especially in changing how the law treats threatened species versus endangered species, said U.S. Rep. Paul Gosar, R-Ariz.
“Threatened and endangered species were designated as distinct classes for a reason and should function as such,” Gosar said in a statement handed to the U.S. Department of Interior's press shop. “With a three percent recovery rate in its nearly half-century history, it is far past time that we bring the ESA into the 21st Century.” (Extra points to whomever points out all of the grammatical problems with that sentence.)
Species tend to remain listed to make sure they don’t backslide toward the threatened and endangered status and the ESA makes only slight distinctions between the threatened and endangered species and there is no special set of rules that allow for “the taking” of a threatened species for economic reasons.
One of the changes involves altering the definition of how a threatened species gets listed if it is at risk of becoming an endangered species in the foreseeable future. The new rule tightens what that means, thereby making harder to establish threatened species protection and, perhaps, removing existing protections.
Money matters(or doesn’t)
Another change involves consideration of economic impact on whether to list a species as threatened or endangered. Or the lack of the aforementioned consideration. Or whatever trick of light the present administration is using to throttle future listings.
Team Trump has chopped from the rules language forbidding the use of economic reasons to not list a species as endangered. The law does not include a clause saying “if offing this species costs jobs or profit, it’s really not necessary.” It does require a listing decision to be made by using the best available scientific and commercial data.
Even authors of the Interior Department’s rule changes concede this point. However, they are going to let the economic figures into the public process anyway.
“ … (T)he Act does not prohibit the Services from compiling economic information or presenting that information to the public, as long as such information does not influence the listing determination.”
I can hear the dog-heard-something-funny sound you are making. It doesn’t make sense to elicit information that won’t be considered, does it?
They are going to compile the economic research of one form or another.
They are going to let the public hear it.
But it will in no way affect the listing decision. If they could pinky-swear, here’s where they would do just that.
Center for Biological Diversity lobbyist Brett Hartl explained to me over the phone Monday what he figured was up and I think he’s right.
The goal is to let those with a dog in the fight to concoct studies of economic costs that may, based on wild assumptions, skew results but create a price tag for the talking points to sway public opinion.
“So they are saying ‘All we’re doing is providing information,’ but it’s meant to be information that will scare the public,” Hartl said.
I’ve seen this at work.
I did a story once about a study commissioned by the Southern Arizona Homebuilders Association about the economic cost related to the listing of the cactus ferruginous pygmy owl's critical habitat on the Northwest Side. The study assumed every acre of Oro Valley and Marana would be developed at the maximum allowable density and therefore, would cost the region more money than had been previously invested in Pima County’s commercial and residential construction standing at the time.
That kind of development was never, ever, ever (to the 43rd power) going to happen.
If I were to believe in conspiracies, I would think industry is looking to build a record of the costs involved in enforcing the ESA, then they try to turn the public against the act itself.
But the thing you gotta remember is that the legislation didn't change. It remains welded to the idea that the physical sciences and not the sinister science of economics drives decision making. The Trump administration can try to fudge that legal reality but they can’t escape it because lawyers are standing by to make sure the law is enforced.
There may be some vague strategy going on here because people like the ESA protecting grizzly bears and gray whales. They get less enthused about snail darters and spotted owls.
So if industry can move the battlefield to more favorable biological nomenclature, they might be able to score bigger future blows against species.
So that brings to the real fight that's always going on when the Endangered Species Act makes news.
Species, habitat, ecosystem
As a guy who’s covered endangered species policy for years, I’ve always thought the act was always a bit of a lie – a justifiable lie but a lie all the same. We need look no further than our own back yard to see the real value of the ESA.
It’s not so much about species as much as it is the most sensitive land. The vast majority of desert wildlife happens in two places: Down in riparian areas and in the uplands. It’s where the rain falls and where it gathers. Water is something of a priority in general but most certainly in a desert.
It’s not the Sonoran pronghorn, per se. It’s not the Pima pineapple cactus per acre. It’s that their numbers dwindle because of their habitat is lost. So the ESA protects the ecosystem's weakest link and thereby protecting the interlocking biology of a region.
Clear-cutting, strip mining, overgrazing and human intrusion can snap the chain and make the whole thing unravel.
Slam millions of species together in real time and what emerges is the biosphere we humans inhabit but think we conquered. When we start messing with this over here, that over there can die off and start a chain reaction. Call it a hunch, but I don't think letting the environment unwind would work out well for the human race. It will take longer than five business quarters to figure out, so what does industry care?
Business tends to use "We'll-All-Be-Deadism" logic to ignore the answers.
Climate change is the most dramatic example. By the time my granddaughter is my age, various studies predict the Rocky Mountain snowpack will be reduced by 60 percent or more. That’s the source of the Colorado River, which Arizona imports for current and future needs. Now how important are those watersheds? Do we really want to suck them dry?
Presidents can and do appoint administrators that can drastically change how laws are enforced. Change at these margins are never part of presidential campaigns but are typically how big change can happen. So welcome to reality, to all those voters particularly miffed about these changes who figured Hillary Clinton and Donald Trump were essentially the same person (I’m looking at you, Chris Hedges).
Remember things like administrative rules and judges in early November in even-numbered years.
Elections have consequences. And they can again. The Congressional Review Act gives an incoming Congress and administration 60 legislative days to undo administrative rules established by the previous administration. The Republicans used it to overturn 14 rules established by the Obama administration.
And there's also the the theory of an all-powerful "Unitary Executive," Democratic presidents tend to ignore but Republicans embrace like a stuffed emotional support bear.
To those whom it really bothers ... remember … y’know … there were those emails …
Blake Morlock is an award-winning columnist who worked in daily journalism for nearly 20 years and is a former communications director for the Pima County Democratic Party. Now he’s telling you things the Devil won’t.