ESA on Edge: Interior Proposals Prioritize Energy over Endangered Species

Greater Yellowstone’s wolverines, whitebark pines and grizzly bears won’t be commenting on a slate of proposed changes to the Endangered Species Act.

But they will likely feel the impact of President Donald Trump’s energy dominance agenda, which has considered the ESA as one of the most significant obstacles to its rollout. Two weeks before it was over, Trump declared October “National Energy Dominance Month, 2025.” The proclamation stated he was “forging a future defined by three simple words: Drill, baby, drill.” 

“Tragically, after the conclusion of my first term,” Trump wrote in the proclamation, “the previous administration launched a war on American energy — reversing all of my historic first term actions, leading all 50 States to hit record-high gas prices.”

On November 19, the Interior Department released four planned revisions for the ESA intended to “strengthen certainty, reduce burdens and uphold the law.” Together, they comply with Trump’s Unleashing American Energy executive order, as well as provisions in the original Department of Government Efficiency order. Secretary of the Interior Doug Burgum had followed up with a secretarial order to remove regulatory burdens.

The new rules would “largely mirror the regulatory program in place in the latter part of the first Trump administration,” according to JDSupra, a legal analysis blog, on November 26.

“This is the pendulum swinging between administrations,” said Jonathan Wood, vice president for law and policy at Bozeman-based Property and Environment Research Center. “[The Trump administration is] proposing a different vision, maybe a more effective one. If we prioritize recovery in a different way, we’re going to need new tools.”

All four revisions reverse a Biden administration change to a first-term Trump revision. The changes are posted on the Federal Register and open for public comment through December 22. They include:

·  Using economic impact data when considering listing, delisting and critical habitat decisions. This changes three factors: U.S. Fish and Wildlife Service’s ability to propose critical habitat where endangered species might thrive although they’re not currently present; the agency’s ability to define hazards in the “foreseeable future,” and its ability to reject critical habitat designations considered “not prudent.” Adding economic impacts to species consideration could offset biological data by questioning whether saving an animal or plant is worth the expense.

·  Applying the Loper Bright Supreme Court doctrine to the ESA’s requirement that federal agencies consult with FWS on activity that might affect endangered species. Loper Bright struck down “Chevron deference,” which required judges to presume agencies had the best information on which to base decisions. Instead, the judges themselves are to decide what Congress meant in contested laws.

·  Eliminating the Blanket Rule that automatically gave second-class “threatened” species the same federal protections as first-class “endangered” species until more specific recovery plans are approved.

·  More flexibility to use economic, national security or other “relevant impacts” to justify excluding areas from critical habitat designations.

“This administration is restoring the Endangered Species Act to its original intent, protecting species through clear, consistent and lawful standards that also respect the livelihoods of Americans who depend on our land and resources,” Burgum said in the November 19 press release. “These revisions end years of legal confusion and regulatory overreach, delivering certainty to states, tribes, landowners and businesses while ensuring conservation efforts remain grounded in sound science and common sense.”

Fish and Wildlife Service Director Brian Nesvik added in the same release that the actions would work “hand in hand with America’s energy, agricultural and infrastructure priorities. By restoring clarity and predictability, we are giving the regulated community confidence while keeping our focus on recovery outcomes, not paperwork.”

Most of those rules attracted court challenges in the first Trump administration, and were on their way to losing before the Biden administration rewrote them.

The environmental law firm Earthjustice warned the changes would “make it easier for federal agencies to greenlight destructive logging and drilling that threaten species.” Other environmental advocates made equally dire predictions.

“If these Trump proposals had been in place in the 1970s, the only place you’d find a bald eagle today is on the back of a dollar bill,” said Stephanie Kurose, deputy director of government affairs at the Center for Biological Diversity. “This is about letting the biggest companies in the country drill for oil, log our old-growth trees, and mine for coal even if it causes iconic species to go extinct and cheats our children out of their natural heritage.”

PERC and the Missoula-headquartered Rocky Mountain Elk Foundation together sued FWS over its use of the Blanket Rule last summer. Wood said the goal was to push species recovery to more “proactive, voluntary actions” through incentives to landowners.

“Under the existing rules, they’re worse off,” Wood said. “That’s why we’re not seeing big, voluntary investments in habitat restoration and maintenance.”

With the Loper Bright doctrine in control, Wood said judges would have to interpret what Congress meant based on their reading of the law, rather than asking an agency like the Fish and Wildlife Service for its current position.

“That means there’s lots of questions that might need to be reconsidered after Loper Bright,” Wood told Mountain Journal. “I do expect seeing lots of things across every agency, looking for where legal vulnerabilities might be. They’re going to be asking, ‘What does this law actually mean, what does the court hold, and are we in compliance with that?’ It may upset some precedents.”

But using Loper Bright could also backfire on the agency, according to several legal analyses. Harvard Law School’s Jessica Graham in Ecology Law Quarterly noted the Supreme Court specifically warned future challengers not to use that ruling to go back and change past decisions that were based on agency expertise. 

Graham added that many other court rulings had confirmed that harm meant damage to habitat, and concluded that using Loper Bright to interpret the ESA would show the law “was drafted in intentionally broad terms to account for all possible harms and methods of protecting the nation’s most vulnerable species … the direct opposite of what the Service proposes to do.”