Barely a year into his administration, President Trump’s agenda to deregulate and roll back environmental protections has been clear across the board: from shrinking national monument to fast-tracking off-shore oil drilling to repealing Obama-era clean air regulations.
His latest proposal, the repeal of a little-known rule to protect threatened wildlife, the “Blanket 4(d) Rule,” will have the opposite effect by launching scores of new regulations that will further drive wildlife to extinction and waste millions in taxpayer dollars.
Section 4(d) is the part of the Endangered Species Act that requires the U.S. Fish and Wildlife Service to issue regulations to protect and conserve species, that while not yet considered endangered, are likely to become endangered in the near future if not provided some protection.
One way to protect a threatened species is to issue a species-specific rule. That’s exactly what has happened for about 10 percent of the 300 or so currently listed threatened species, including African elephants, grizzly bears and gray wolves. Issuing these species-specific rules involves an enormous investment of regulatory time and taxpayer funded resources. Not only must federal regulators wade through all of the scientific research to determine the most precise way to protect these species, but FWS must undertake a process known as notice and comment rulemaking.
Rulemaking requires the agency to publish its proposed regulation, along with a detailed rationale for the rule to solicit comments from interested parties. Often these regulations result in hundreds, if not thousands, of comments, each of which must be considered and responded to by the agency before it may finalize the regulation. And, of course, regulations pertaining to wildlife protection are often quite controversial, sparking litigation over the final rule by either environmentalists or industry.
To streamline threatened species protection, the government came up with a simple and elegant solution to this potential bureaucratic disaster 40 years ago when it issued the Blanket 4(d) Rule. The Blanket Rule essentially says that in the absence of a species-specific Special 4(d) Rule, any species that is listed as threatened will get the same default protections from taking, trapping, or killing that Congress — not just FWS — provided to all endangered species when it passed the ESA back in 1973. This solution not only avoided costly and contentious rulemaking, but it provided flexibility to the problem of threatened species protection. The blanket rule acted as a safety net to prevent extinction while the government retained to ability to create species-specific rules when they were needed.
Now, FWS wants to repeal the Blanket Rule, and it claims that it will be more than capable of issuing Special 4(d) Rules for all new threatened species, as it sees fit. What FWS won’t tell us is that it already has a backlog of hundreds of species awaiting endangered or threatened status.
The idea that the agency will somehow be able to manage issuing Special 4(d) Rules for each new threatened species without slowing the entire process to a halt is laughable. And Department of the Interior Secretary Ryan Zinke knows it. He also knows that if FWS chooses not to issue 4(d) rules and attempts to eviscerate all substantive protections from “threatened” listings, tremendous amounts of litigation will ensue, tying up the process even further.
This isn’t a rollback of regulation to allow property owners more control over their land; it’s just another attempt to jam and stall our system of environmental protection so much that it cannot function. And taxpayers are left footing the bill for the damages.
Michael is the Director of the Wildlife Law Program at Friends of Animals, an international animal advocacy organization. Elizabeth is the organization’s 2016-2018 Animal Law Fellow. Both are located in Centennial, Colorado.