WASHINGTON — The Trump administration’s efforts to weaken the Endangered Species Act could make it harder to bring animals back from the brink, including Colorado’s native lesser prairie chicken, according to conservation groups.
Environmentalists have been working for years to try to get federal protections for the iconic bird, a rare dancing grouse that was once abundant on the Great Plains but has seen its population decline by as much as 97%.
But some who have pushed to safeguard the bird are now concerned that even if it is listed as a threatened species, the regulations won’t be as protective as they would have been before the Trump administration’s overhaul. The species may have minimal habitat protections and could potentially still be killed or harmed.
“If the lesser prairie chicken is listed as threatened, it will no longer by default receive the protections that it would have,” said Jacob Malcolm, director of the Center for Conservation Innovation at Defenders of Wildlife, and a former Fish and Wildlife Service biologist. “You need those prohibitions to build an incentive program to get people to come in and work toward recovering a species.”
The Trump administration announced sweeping changes to the Endangered Species Act earlier this month. The 45-year-old landmark conservation law has been credited with rescuing the bald eagle, whooping crane, the American crocodile and the gray wolf, but Republicans have criticized it for becoming mired in lawsuits and creating land-use restrictions, with relatively few species graduating off the list.
Republicans in Congress have made attempts to rewrite the law, without success. But the Trump team was able to rewrite how it implements the act through regulations that require no approval from Congress.
Interior Secretary David Bernhardt said the changes would help the government focus on recovering the rarest species and create “clear, consistent and efficient implementation” of the act. And Commerce Secretary Wilbur Ross said in a statement that the changes would “ease the regulatory burden on the American public, without sacrificing our species protection and recovery goals.”
Critics say the rules tip the scales in favor of development.
“At the end of the day, the whole purpose of the act is to protect species and adopt a precautionary principle when doing that, and protect habitat that threatened and endangered species need to prevent extinction,” said Elizabeth Klein, who was a deputy secretary at the Interior Department during the Obama administration. “These changes are inconsistent with the whole purpose of the act.”
Klein is now deputy director of the State Energy and Environmental Impact Center at New York University’s law school.
The new rules loosen requirements for species listed as “threatened,” the classification one step below “endangered.”
They also allow regulators to consider economic assessments when deciding whether to protect habitat — like considering potential lost revenue from oil and gas development. Previously, the law required regulators to make the decision solely based on science.
The government is also given more leeway in deciding what habitat to protect and what timeline to consider for risk to a species over the “foreseeable future.” This small but significant change could allow regulators to ignore potential future risks from climate change, such as habitat loss from drought or rising sea levels.
Environmentalists have increasingly petitioned the government to consider risks climate change could pose for plants and animals decades from now.
The rules also say the government does not have to protect areas that are not currently occupied by a species. The administration says that will allow them to focus on the highest need areas, but environmentalists say it is another blow to species that have changing habitat needs as climate change alters the landscape.
The lesser prairie chicken, for example, may have to shift its habitat poleward to get the right precipitation and temperature to reproduce and survive.
“Climate change is causing species to lose habitat, so they need that protection more, not less,” said Noah Greenwald, endangered species director for the Center for Biological Diversity. “We need to protect areas where species don’t currently occur, and the rules would make that harder.”
Environmental groups are hoping to topple the changes in court. Earthjustice filed a lawsuit against the Trump administration last week on behalf of the Center for Biological Diversity and several other environmental groups. The suit claims the new rules “violate the language and purpose” of the Endangered Species Act and did not properly follow public comment requirements.
A delicate dance for the prairie chicken
The regulatory changes could mean significantly fewer protections for animals awaiting future listings, like the lesser prairie chicken.
Environmental groups have filed petitions and lawsuits for 24 years to try to get federal protections for the lesser prairie chicken.
The Fish and Wildlife Service finally proposed a “threatened” listing for the bird five years ago, but withdrew it in response to a lawsuit from a Texas oil trade group. The agency is expected to issue a new finding in the next few years, but now environmentalists wonder if the bird would actually gain any significant federal protections with its new status.
“The lesser prairie chicken will probably be listed as threatened. […] But it may not get any protections, that’s how bad these rules really are,” said Greenwald.
Previously, animals listed as “threatened” were automatically protected from anyone hurting or killing the species. The new rules take away that automatic prohibition. The Fish and Wildlife Service can write tailored rules for threatened species, but environmentalists question whether that will happen in a timely manner.
The lesser prairie chicken was once so abundant in the arid short-grass region of Colorado and the rest of the southern Great Plains that it was commonly hunted and brought to markets as far away as Texas.
Now the species is rarely seen. Its habitat has condensed to a small area of southeastern Colorado, Oklahoma and northern Texas — just 16% of its historic range, according to conservation groups. Livestock grazing, agriculture, oil and gas extraction, mining, roads and wind-energy production all threaten the prairie habitat. Prairie chickens also avoid areas with fences, power lines or other structures where predators can perch.
The bird is known for its elaborate mating rituals: males puff up their neck feathers and air sacs and gather on “booming grounds,” slightly raised areas. They make hollow gobbling sounds, stamp their feet and perform dances that can include leaping in the air.
“If you ever get a chance to watch these things dance, it is just fabulous. It is a magnificent species,” said Malcolm of Defenders of Wildlife. He has fond memories of lying on a cot in the grasslands early one morning to watch the bird. He dreams of taking his 2-year-old daughter on a similar adventure one day — but says protection for the rare bird is needed to ensure its survival.
“My hope is to be able to go out with her and see these things, and if we don’t do something, we won’t be able to do that,” Malcolm said.
Some key Senate Democrats have said they would like to block the changes — an effort that is unlikely to succeed with the Republican majority in the Senate.
“In the midst of unprecedented biodiversity loss, it is shameful that the Trump Administration is undermining our nation’s cornerstone law designed to recover at-risk species,” Sen. Michael Bennet (D-Colo.) said in an email. “Congress should step up and stop this rollback, and should actually invest in proactive wildlife conservation efforts.”
Bennet said he would support an effort to use the Congressional Review Act to stop the rule.
Sen. Tom Udall (D-N.M.), the top Democrat on the committee that oversees the Interior Department’s budget, has said he would like to use the act to block the changes. The Congressional Review Act gives Congress authority to invalidate rules established by federal agencies.
But many Republicans are keen to make the Endangered Species Act less prone to lawsuits and land-use restrictions. Republicans made a push to overhaul the law in Congress in the first two years of the Trump administration.
Rep. Scott Tipton (R-Colo.) has introduced his own legislation to advance volunteer conservation efforts. He wants to make sure the act is “being used effectively to protect vulnerable species from extinction, not as a legal weapon to block public lands projects that don’t align with any one group’s particular viewpoint,” his spokesman said this week.
Democrats decried the changes.
“The Administration continues to wage war on our public lands, endangered species, and environmental protection,” Rep. Jason Crow (D-Colo.) said in an emailed statement. “The recent decision to gut important protections for endangered species not only disregards well-established science, but also Colorado’s heritage of protecting the environment for future generations. It’s what happens when you put industry lobbyists in charge of our government agencies. ”
Rep. Ed Perlmutter (D-Colo.) criticized the administration in a tweet after the rules were announced.
“The United Nations report released in May showed that as many as 1 million species are now at risk of extinction,” he wrote. “Instead of taking action to reduce this threat and save our endangered species, the Trump administration is doing just the opposite.”