Democratic states promised Monday to sue the Trump administration for its move to “eviscerate” the Endangered Species Act by modifying how the federal government implements the law in a manner more accommodating to businesses.
Democratic Attorneys General Xavier Becerra of California and Maura Healey of Massachusetts said they would file a lawsuit, along with “many” other states, in the coming weeks.
“This is another attempt by the Trump administration to end-run existing law and find a way to eviscerate it through rulemaking,” Healey told reporters on a press call. “These new rules are misguided, they are dangerous, and they are illegal. We are going to do everything we can to oppose these actions, which put our local communities and our environment at risk.”
Becerra and Healey led a coalition of 10 states in submitting comments to the Trump administration earlier this year when it introduced the draft of the rule changes, arguing the modifications are “in clear violation of” the law’s “overriding conservation purpose.” It is likely that those states will be a part of the lawsuit. Environmental groups are also planning to sue, said Jamie Clark, president and CEO of the Defenders of Wildlife.
“This administration’s attempt to twist and reinterpret the law in ways that are illegal completely violates the spirit and intent of the law itself,” Clark said on the press call. “Regulations cannot change law. Only Congress can.”
The states are basing their lawsuit on three allegations, Healey said: the administration acted “arbitrarily” by not adequately considering science; that it failed to properly absorb public comment; and the changes violate the text and purpose of the statute to protect vulnerable species from extinction.
The Trump administration is casting the changes as less far-reaching than Democrats and environmentalists claim, with the aim of making the law more efficient and less cumbersome.
“Nothing in here is a radical change from how we have been listing species in the last decade or so,” said Gary Frazer, assistant director for endangered species at the U.S. Fish and Wildlife Service, in a press call with reporters.
Industry groups said the Democratic states are overreacting, and accused the attorneys general of acting out of political opposition to the Trump administration.
“Everybody knows how hard it is to change anything related to Endangered Species Act because of the demagoguery surrounding it,” Kathleen Sgamma, president of the Western Energy Alliance, told the Washington Examiner. “You try to do anything to make ESA work more practically and you would think someone is out there shooting polar bears. These blue states can’t stand the Trump administration at all.”
The new rules allow the federal government to consider economic analyses in listing threatened or endangered species, which opponents say would make it more difficult for a species to qualify for protection.
It would end the so-called “blanket rule” of automatically granting protections to species that are classified as threatened, and would instead make a distinction between “threatened” and “endangered” species. Threatened is a weaker classification than endangered that provides for looser regulations.
Another change gives the government more flexibility in determining whether species face threatening conditions in the “foreseeable future,” defining the term in a narrower way that critics say would discount longer-term effects, such as climate change.
The administration will also toughen the standard for the government designating “critical habitats” that need to be preserved to protect species, creating exemptions for areas that were once occupied by species but have been abandoned. This would potentially leave those habitats open to energy development.
Democratic states and environmentalist groups say the changes amount to a dramatic weakening of the Endangered Species Act, which since its inception in 1973 is credited with saving the bald eagle, humpback whale, American alligator, and others.
“This is not nibbling around the edges,” Beccerra said. “You cannot change an act through an executive regulation. So this administration is trying to change the law by breaking the law, and that’s not going to stand.”
