There are three ways to destroy an environmental law. You can repeal it. You can withhold funds to enact or enforce the law. Or you can keep the law on the books, but rewrite the machinery that makes it work (i.e., you can sabotage it).
Over the course of two weeks, the U.S. Fish and Wildlife Service and National Marine Fisheries Service finalized a series of regulatory changes that weaken important protections under the Endangered Species Act.
A previous blog discussed the elimination of the regulatory definition of “harm” (which for decades made clear that destroying habitat of a listed species can harm the species’ continued existence, regardless of whether individuals of the species are actively killed when the habitat is destroyed).
Now, another rule changes how economic interests (i.e. profits from development) are weighed in the critical-habitat designation process.
This is not a minor bureaucratic housekeeping change. It represents a fundamental shift in how the federal government approaches one of America’s most important conservation laws. Prior to this, there was something very important that the Endangered Species Act did not permit the government to do:
It did not permit economic consequences to determine whether a species is endangered or threatened.
This isn’t an environmentalist talking point, or an interpretation. It’s the law. Section 4 of the Endangered Species Act establishes the process for deciding whether a species is endangered or threatened.
When writing the ESA, Congress was unusually explicit about this. The ESA states:
“The Secretary shall make determinations required by subsection (a)(1) solely [emphasis added] on the basis of the best scientific and commercial data available.”
By commercial data, if refers to, for example, data on how many individuals of a species have been captured and sold. That is to say, commercial data can reveal the level of exploitation or overharvesting.
The statute clearly states the biological and environmental factors that can justify listing a species: destruction or modification of habitat; overutilization; disease or predation; inadequate regulation; and other natural or human-caused factors affecting the species’ continued existence. Whether or not listing a species has an impact on the profits of business and corporations is not one of them.
The federal regulations implementing that provision have historically made the prohibition even more explicit. In 2024 the following language was added to 50 CFR §424.11(b):
“without reference to possible economic or other impacts of such determination.”
The federal agencies themselves explained why this language exists. Listing a species is based on biological science. Economic consequences that might result from listing aren’t supposed to be weighed against a species’ prospects for survival.
So, if a frog is going extinct because its breeding ponds are being destroyed, the question isn’t whether saving the frog will inconvenience a developer. The question is whether biological science shows that the frog meets the legal definition of an endangered or threatened species.
Listing versus Critical Habitat
However, the ESA does allow economics to enter the critical-habitat process. For example. Section 4(b)(2) says that the Secretary:
“shall designate critical habitat … after taking into consideration the economic impact, the impact on national security, and any other relevant impact.”
The Supreme Court has recognized this distinction as well. In Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, the Court described Section 4(b)(2) as requiring the government to consider economic impacts when designating critical habitat. Notably, it concluded that areas can be excluded from Critical Habitat where the benefits of exclusion outweigh the benefits of designation, unless exclusion of that area of Critical Habitat could result in extinction of the species.
The Trump Administration changes
On July 21, the Fish and Wildlife Service finalized a new rule governing critical-habitat exclusions. The new regulation says that when a person (or entity) provides “credible information” that there would be an economic impact resulting from a location being designated as Critical Habitat, the Secretary (of the Interior) will conduct an exclusion analysis.
Now, here’s the particularly important part…
The final regulation says that if the Secretary conducts the analysis and concludes that the benefits of excluding an area outweigh the benefits of including it in critical habitat, the Secretary (of the Interior or of Commerce) shall exclude it, unless doing so would result in extinction.
This means private businesses and property owners can object to Critical Habitat being designated.
At worst, this gives industry a veto to the designation of Critical Habitat. At best, it gives businesses with a direct financial interest a much easier and streamlined pathway to argue for the exclusion of areas from Critical Habitat.
Mining, timber and development companies shouldn’t be deciding which areas are important for the survival of imperiled species. But they can now submit “credible” economic information that can trigger a mandatory “exclusion analysis” for particular areas of a species’ critical habitat. This is a significant expansion of the role economic interests can play in determining where the federal government places protections.
The administration’s own documents tell the story
The July rule says economic impacts can include factors such as jobs, productivity, effects on local economies, opportunity costs, changes in land values, and other economic consequences of critical-habitat designation. The agency also says it will evaluate information supplied by outside entities (including entities with direct financial interests in the outcome) under a “credible information” standard.
Although this doesn’t necessarily mean every corporate attempt to stop Critical Habitat designation wins, it does mean those claims of economic impact, and the ability to prevent areas being protected, are now built into the regulatory machinery.
The law isn’t a suggestion
The Endangered Species Act has always been unusually strong because Congress deliberately separated some decisions from economic interests. The question of whether a species is endangered is one of them. The statute says “solely.” The regulations say “without reference to possible economic or other impacts.”
Congress did not write:
“Determine whether the species is endangered, unless saving it would be expensive.”
Because once the question becomes “How much will it cost to save this species?” the answer will almost always depend on who gets to count the costs. A multinational mining corporation can put a number on a delayed mine, a developer can put a number on an undeveloped subdivision, and a timber company can put a cost on timber that can’t be harvested. But it’s much harder to put a dollar value on a species going extinct.
Which is why the writers of the ESA separated listing decisions from economics in the first place.
The critical-habitat rule is not an illegal decision to consider economics. Congress explicitly required that economics should be considered when designating Critical Habitat. However, the Trump Administration is making it easier for special interests to decide which economic consequences will shape conservation decisions and the implementation of species protection. Moreover, this will not be the last attempt by the Trump Administration to hobble the enactment of the Endangered Species Act. Rather than trying to overturn the law outright, the administration’s strategy seems to be exposing the Endangered Species Act to a death by a thousand cuts.
