Today's double whammy decisions on endangered species

The U.S. Fish and Wildlife Service today released two long-awaited Endangered Species Act decisions. And unfortunately, both undercut the protections that wildlife need from threats they face, including climate change.

Monarch butterfly

First is the decision not to proceed with listing the monarch butterfly promptly, even though the Service acknowledges that the species warrants protection as a threatened or endangered species and even though the species was petitioned for listing almost six years ago. The agency made the very unusual move of putting the monarch on the list of species that are “candidates” for ESA listing. This means that the species warrants protections, but the agency currently lacks the resources to issue the paperwork to designate it as such (i.e., the proposed and final rules to list the species). The agency explains it that intends to issue a propose listing rule in 2024.

Historically, the Service has added hundreds of species to its candidate list because its listing workload far exceeds the resources it gets from Congress. So why is the monarch decision so unusual? The decision, along with yesterday’s northern spotted owl decision, represent the first time that the Service has added species to the candidate list since April 2016 (for the island marbled butterfly). The agency didn’t add any species to the candidate list in fiscal years 2020, 2019, 2018, and 2017. Further, the island butterfly was the only species the agency added to the candidate list in 2016. Likewise, in 2015, the agency added only one species, the Sierra Nevada population of the red fox, to the candidate list in October 2015. In other words, the Service hasn’t used its candidate authority to any significant degree since 2014.

From April 2016 until yesterday, the Service hasn’t expanded its candidate list because it has issued a proposed listing rule concurrent with every one of its 12-month findings that a species warrants listing – the paperwork for each is very similar. By contrast, in the monarch and spotted owl decisions, the agency decided to issue a warranted finding without also issuing a proposed listing rule. This strikes me as very peculiar and questionable because the agency already spends a lot of time analyzing and writing a 12-month warranted finding (e.g., today’s 126-page Monarch Species Status Assessment and 42-page evaluation of threats). To simultaneously issue a proposed rule (which might take another, perhaps, 10-20 pages) would take relatively little additional time and resources. This is precisely why the agency has issued warranted findings and proposed rules concurrently for the over a dozen species listed since 2016. But this week, the agency decided to abandon this approach and resurrect its candidate authority after a nearly five-year hiatus—and coincidentally for the two most controversial listing decisions. Ironically, the agency will likely end up using more resources under today’s approach, because it will need to update the Species Status Assessment and threat evaluation if and when it issues a proposed rule in several years. Or as my colleague, Tim Male, commented: The agency has effectively said that in 3 years they managed to do 170 pages of the paperwork necessary to decide whether the butterfly has a high likelihood of going extinct, but that it’s going to take them 3 years to do the last 20 pages of paperwork.

Another peculiarity with the monarch decision is that the Service doesn’t state whether it thinks the monarch is “threatened” or instead “endangered.” This is the first time I can remember a 12-month finding staying silent on this key question. I suspect the reason is that by staying silent, the agency minimizes the risk of a legal challenge to whether the species merits listing as threatened versus endangered. 

Taking a step back from today’s peculiar monarch decision, it’s worth discussing several other aspects of why the monarch is important.

• Many pollinators like the monarch present very different conservation challenges compared to most other ESA-listed species. They have short lives, are wide-ranging, and often use many types of habitat. As a result, our nation needs efficient ways to permit routine land use activities that impact the species. At the same time, the strong public support for pollinator conservation means that the Service has a rare opportunity to engage broad swaths of the public in voluntary conservation for these species. This leads to my second point.
  
• Our organization helped develop the nationwide candidate conservation agreement for the monarch butterfly. Even though the process to draft and approve the agreement was one of the fastest in the ESA’s history, it still took 18 months and considerable funding. And all of that for just one species, out of nearly 1,700 listed under the ESA and hundreds more being considered for listing. We need easier and quicker ways for landowners and businesses to pursue voluntary conservation agreements. This includes enough staffing and other resources for the Services to work on reviewing and approving those agreements.
  
• The west coast monarch population is in far worse shape than other populations, and very likely warrants listing as endangered rather than threatened. But unfortunately, the Service cannot list populations of invertebrates and plants. The ESA allows the agency to list “distinct population segments” only of vertebrates. This is one example of how the ESA is an imperfect conservation tool, especially considering that among US-listed species, 56% are plants and 16% are invertebrates. 

The Biden administration will likely face a lot of pressure to expedite the timeframe for listing the monarch. It can likely issue a proposed rule for the monarch before 2024 if it prioritizes fixing the Service’s backlog of overdue listings, as we had recommended in last week’s report to the Biden administration. 

Definition of “habitat”

Today’s second major news is a new definition of “habitat” under the ESA:

For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.

The definition closes the door to designating many types of unoccupied areas that would have previously qualified as critical habitat. In the background to the rule, the Services state that future habitat restoration isn’t enough to qualify an unoccupied area as critical habitat, if those areas don’t already contain the resources and conditions that support the species: 

At the same time, notwithstanding the inclusion of ephemeral and seasonal habitat in the definition, the definition excludes areas that do not currently or periodically contain the requisite resources and conditions, even if such areas could meet this requirement in the future after restoration activities or other changes occur.

When combined with the 2019 rule that limits the situations in which the Services can designate unoccupied areas, my prediction is that the amount of unoccupied critical habitat will shrivel even more in the future.

As a practical matter, the new definition is problematic because one purpose of critical habitat is to help protect areas that a species will need in the future to adapt to climate change and other shifts in its environment. Many areas are not occupiable today because they don’t currently contain the resources and conditions needed to support the species. Yet now is precisely the best time to protect those areas, before they are further degraded. Today’s definition prevents those protections from occurring by creating the impossibly high burden of requiring conservationists to begin restoring an unoccupied area before a critical habitat rulemaking. Under the definition, the parcel of unoccupied area for the dusky gopher frog in the Weyerhaeuser case would likely not have qualified as critical habitat. 

Another problem with limiting the scope of unoccupied critical habitat is that those are the areas most likely to benefit from the section 7(a)(2) “destruction or adverse modification” prohibition. The reason is that if an area is occupied, the section 7 “jeopardy” prohibition already protects the area by virtue of a species’ presence there. As a result, the “destruction or adverse modification” prohibition offers limited value for protecting the species. But if area is unoccupied, the jeopardy prohibition does little, if anything, to protect it. Only the “destruction or adverse modification” prohibition can squarely protect the area. The Services have long acknowledged this benefit of unoccupied critical habitat. Today’s definition will thus reduce the value of the adverse modification prohibition.

With all of that said, the definition does leave some room for a Biden administration to interpret it less restrictively. In particular, it’s unclear to me how many “resources and conditions” are “necessary to support one or more life processes of a species.” In the dusky gopher frog example, is having water in a pond enough to count as the “resources and conditions” need to support the tadpole stage of the frog? What about the mere existence of air and sunlight—is that enough? I suspect that it’s not; otherwise, the new definition could be interpreted so broadly as to have no meaningful limit on what areas qualify as habitat. The rule, unfortunately, didn’t answer my question about where the Services will draw the line on this question of how much is enough. What we do know is that a promise of future restoration isn’t enough to qualify an area as habitat today.

Given the various problems with the new definition, I suspect that the Biden administration will revisit it, so I wouldn’t place any bets on it sticking around.