Trump Energy Policy Aims to Unplug Endangered Species Act

President Donald Trump has explicitly targeted the Endangered Species Act as an obstacle to his energy policies and appears intent to evade the 51-year-old law in other ways.

Section 5 of Trump’s Declaring a National Energy Emergency directs all federal agencies with energy projects to use emergency consultation rules to resolve any Endangered Species Act issues.

Section 6 revives a 1979 committee known as the God Squad to meet quarterly and “consider any lawful applications” from agencies, state governors or permit applicants needing exemption from Endangered Species Act regulations. Another section directs the U.S. Army Corps of Engineers to use its special permitting provisions to override Clean Water Act regulations.

“They did this last time,” Center for Biological Diversity Government Affairs Director Brett Bartl said on Friday. “[The Trump administration] went around and identified what they thought were burdensome environmental regulations.” 

Congress created the God Squad, officially known as the Endangered Species Act Committee, during the Carter administration. It’s made up of seven presidential cabinet and agency officials to provide a way of evading ESA restrictions on some federal projects. It famously found in favor of the snail darter fish over the Tellico Dam in 1979 (which Congress later OK’d anyway), but ruled against the northern spotted owl in approving 13 old-growth timber sales in 1991. It’s rarely been mentioned, let alone convened, since.

A different executive order, Unleashing American Energy, aims to make the United States the “leading producer of non-fuel minerals, including rare earth minerals.” To do that, it gives federal agencies 30 days to “develop and begin implementing action plans to suspend, revise, or rescind all agency actions identified as unduly burdensome,” which could include the ESA and the National Environmental Policy Act. It states “all agencies must prioritize efficiency and certainty over any other objectives, including those of activist groups, that do not align with the policy goals set forth in Section 2 of this order or that could otherwise add delays and ambiguity to the permitting process.”

The “Unleashing” order also tells the U.S. attorney general to review all federal court cases affecting energy development and “request that such court stay or otherwise delay further litigation, or seek other appropriate relief consistent with this order.”

“We would note that the repeal and replacement approach had mixed success under the first Trump Administration,” an analysis by the American Public Power Association stated. “However, determinations of the likelihood of success will be bolstered by the Supreme Court's 6-3 conservative majority.”

The APPA also observed that previous attempts to change NEPA through administrative action had also been struck down in court. That was the fate of several other Trump ESA rules from his first term, including changes to how the Fish and Wildlife Service listed species and critical habitat, how it extended protections to threatened as well as endangered species, and how it limited consultations between agencies over ESA protections.

Trump justified the energy-related executive orders on claims that “The policies of the previous administration have driven our Nation into a national emergency, where a precariously inadequate and intermittent energy supply, and an increasingly unreliable grid, require swift and decisive action.” He elsewhere stated “In recent years, burdensome and ideologically motivated regulations have impeded the development of these resources.”

U.S. oil production is actually at record levels, according to energy industry analysts. 

The executive order Regulatory Freeze Pending Review tells agency leaders to “consider postponing for 60 days from the date of this memorandum the effective date for any rules that have been published in the Federal Register … for the purpose of reviewing any questions of fact, law and policy that the rules may raise,” and “consider re-evaluating pending petitions involving such rules.”

This could apply to the Fish and Wildlife Service’s grizzly bear Endangered Species Act listing rule, which retains the bear’s threatened status. It was triggered by petitions from the governors of Montana, Wyoming and Idaho aiming at delisting grizzlies from the ESA.

This executive order only calls for opening a comment period on the affected rule, and the FWS grizzly rule already had a public comment period set up. FWS also produced a 398-page Species Status Analysis justifying the bear’s continued protection. So, if a reconsideration of the governors’ petition aimed at a new decision delisting grizzlies, the Trump administration would have to refute that existing analysis to survive a court challenge.

The grizzly bear is found mainly in Montana, Wyoming and Idaho, and its Endangered Species Act protections have little to do with energy projects such as oil and gas development. Those threats usually come from timber sales, grazing permits, recreation plans and occasional mining projects that build roads into grizzly habitat.

However, the energy executive orders also apply to mining for non-fuel critical minerals, such as gold, silver, cobalt, copper and rare earths. Mines in the Rocky Mountains have been frequently challenged or blocked over environmental threats to species such as bull trout, Canada lynx and grizzlies.

“As president, Trump had one of the most anti-endangered species administrations, and we’re seeing that start to materialize again,” said Bartl with the Center for Biological Diversity. “If they turn into actual things, we’ll see him in court.”