Earthjustice Responds to Biden Administration’s Final Endangered Species Act Rulemaking 

Today, U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) finalized a set of revised Endangered Species Act (ESA) regulations that fails to reverse some of the Trump administration’s prior damage to the law.

While the revised rules make the ESA a stronger tool for defending biodiversity in the wake of damaging changes in the regulations made in 2019, the Biden administration fell short of fully restoring the bedrock environmental law protections imperiled species need to survive and thrive.

In final rules released today, the Biden administration left intact major provisions that make imperiled species vulnerable to harm: one that allows speculative actions to count as mitigation for actual harm to species, another that requires near-total destruction of protected habitat before finding it a problem, and another that demands greater certainty in scientific judgments than may be practically possible before taking steps to protect species and habitat.

The final regulations contain a few bright spots, including reinstatement of a rule that gave threatened species automatic protections and deletion of language that gave industry’s economic interests sway in final decisions about species protection.

“The Biden administration had the opportunity to fully reverse the damage inflicted upon the Endangered Species Act and the imperiled species it protects, but only got partway there,” said Drew Caputo, Vice President of Litigation for Lands, Wildlife and Oceans at Earthjustice. “There are some important steps forward for species in this action, which we applaud. But unfortunately, the final regulations released today fail to fix, and effectively embrace, significant aspects of the Trump administration regulations that cause harm to endangered species.”

“We are in the midst of an extinction crisis; it is time for bold action,” said Earthjustice attorney Kristen Boyles. “Imperiled plants and animals do not have the time for half-measures, since extinction is forever.”

Today’s amended ESA regulations were the result of federal lawsuits challenging the 2019 ESA rules. The Trump administration also weakened two other ESA regulations in 2020, but the Biden administration fully rescinded those.

Environmentalists and lawmakers celebrated the 50th anniversary of the ESA in December. Since the early 1970s when the Act was passed, the planet has witnessed a staggering drop of more than two-thirds of all plant and animal life. That decline would have been far worse without the ESA, which has saved 99 percent of listed species from extinction. Still, in the U.S. today, nearly half of our ecosystems are now at risk of collapse. Today the need for a stronger — not diluted — ESA is more pressing than ever before.