Since President Nixon signed into law the Endangered Species Act (ESA) in 1973, the ESA has directed the identification and protection of endangered and threatened species in the United States. While President Obama remarked that his Administration had “seen more victories under the Endangered Species Act than any previous administration,” the Obama Administration generally applied the ESA in a fashion designed to avoid significant legal and political battles. By contrast, advocates and politicians on both sides have brought the ESA front and center during the first few months of the Trump Administration.

In June, for example, the General Land Office of the State of Texas (TXGLO), a state agency charged with land and natural resource stewardship in Texas, sued the Department of the Interior and the US Fish & Wildlife Service (FWS) in an attempt to remove a bird, the golden-cheeked warbler, from the endangered species list. TXGLO pointed to a 2015 Texas A&M study concluding that the warbler’s population had increased to 19 times more than had been assumed when the bird was listed as endangered. In a corresponding press release, TXGLO Commissioner George P. Bush stated: “The restoration of the golden-cheeked warbler population is a success story worth celebrating by removing it from the endangered list and restoring the rights of Texas landowners to effectively manage our own properties.” As discussed below, the ESA is receiving significant political and legal attention. This raises the question of whether TXGLO will pursue a legal decision mandating the delisting of the golden-cheeked warbler or whether will it take advantage of a friendly political administration and utilize the “sue and settle” strategy to begin the delisting process.

The ESA in the Political Arena

Shortly after President Trump was elected, it became clear that Republicans had their eyes set on the ESA. In December 2016, US Rep. Bishop (R-UT), the Chairman of the House Committee on Natural Resources, indicated that he preferred to repeal the ESA. In addition, the Senate Committee on Environment and Public Works held a hearing in February on modernizing the ESA. Some of the same concerns TXGLO has brought forth in its lawsuit were addressed at this hearing. Senator Inhofe (R-OK) summed up the hearing by describing his concerns that: (1) delisting of species has not occurred frequently; (2) states seem to be ignored in the implementation of ESA protections; and (3) the ESA does not take into account the interests of stakeholders and landowners.

The hearing comprised testimony from a range of sources including a former Wyoming governor, who indicated that the ESA does not work because the threshold for listing a species is not sufficiently stringent. The lack of state involvement in implementing the ESA was lamented by the executive director of the State of North Carolina’s Wildlife Resource Commission, who at one point emphasized that “it is important to assure integration of State data into [ESA] decisions.” The president of the Wisconsin Farm Bureau Federation discussed the ESA’s impacts on farmers. He shared the story of a Wisconsin farmer who lost a cow to ESA-protected wolves in 2010 and bemoaned that the farmer would risk prosecution if he were to kill a wolf.

On the other side of the discussion, the president of an environmental non-profit organization opined that the ESA is “enormously flexible” and that the Act needs additional funding for its implementation, as opposed to modernizing its provisions. Finally, a former FWS Director, who now heads the Association of Zoos and Aquariums, cautioned the committee to consider that our planet is currently undergoing a mass extinction event before determining the ESA’s future.

Subsequently, the Senate Committee on Environment and Public Works held a hearing on May 10 on State Views on the Need to Modernize the Endangered Species Act. Testimony was provided by state officials from Florida, Arizona, and Rhode Island. During the hearing, it was clear that the Republicans on the Committee are in favor of amending the ESA to turn significant responsibility over to the states for the management of endangered species.

The ESA in the Legal Arena

It is not only the Act’s opponents who have targeted the ESA in order to implement preferred policies. The ESA has already been utilized in at least two legal challenges to policies of the Trump Administration.

Recently, the ESA was utilized in a legal challenge to President Trump’s border wall. On January 25, 2017, President Trump issued an executive order announcing that it would be the policy of his administration to “secure the southern border of the United States through the immediate construction of a physical wall.” And the Department of Homeland Security (DHS) began the process of designing the border wall when it posted two requests for prototype proposals in March. On April 12, the Center for Biological Diversity and US Rep. Grijalva (D-AZ) responded to the proposed border wall by filing a lawsuit alleging that DHS failed to consider whether its southern border enforcement program jeopardized species protected by the ESA. The complaint lists 27 species with critical habitats that extend into or otherwise depend upon connectivity to Mexico. The government has not yet responded in the case.

The second lawsuit challenged the Trump Administration’s 60-day hold on the Obama Administration’s final rules that had not yet come into effect. On February 14, 2017, the Natural Resources Defense Council sued the Department of the Interior and the FWS over the ESA status of the rusty patched bumble bee. After a 2013 petition to list the rusty patched bumble bee as an endangered species, the Obama Administration began the process to list the species for protection. On January 11, 2017, the FWS published a rule to finalize the listing of the rusty patched bumble bee as an endangered species, effective February 10, 2017. Shortly after the inauguration of President Trump on January 20, however, the new administration released a memorandum subjecting all published regulations not yet in effect to a 60-day postponement of the effective date. Accordingly, FWS postponed the effective date of the rusty patched bumble bee listing to March 21, 2017. In its lawsuit, the NRDC challenged the new administration’s postponement of the ESA listing, noting pathogens, habitat reduction, pesticides, and climate change as potential threats to the species survival. However, the new administration took no further action on the rule and it became effective on March 21. The parties stipulated to dismissal of the case.

The Future of the ESA

The recent political and legal developments relative to the ESA raise many questions: Will TXGLO pursue a significant legal opinion mandating the delisting of an endangered species or will it take advantage of a friendly administration and utilize the “sue and settle” strategy to begin the delisting process for the golden-cheeked warbler? Is there sufficient political resolve to amend the ESA or will the committee hearings be the end of the road for a potential ESA amendment? Will environmental organizations push for additional ESA protections under the Trump Administration? Squire Patton Boggs will continue to follow these significant political and legal developments.