Endangered Species rollback faced early pushback within administration, emails show

The U.S. agency responsible for marine fisheries considered pulling out of a recent Trump administration rollback of the Endangered Species Act (ESA) over a disagreement with political appointees at the Fish and Wildlife Service (FWS), according to emails obtained by The Hill.

The emails from a Freedom of Information Act request show that during last year’s rulemaking process, the National Marine Fisheries Service (NMFS) considered withdrawing its support for a joint rule with FWS that makes it harder for areas to receive critical habitat protections.

The emails, though heavily redacted, reveal that NMFS officials were concerned with the “course” chosen by Trump officials at FWS in pursuing the rollback.

NMFS, a part of the National Oceanic and Atmospheric Administration (NOAA), appeared ready to back out in April.

“We appear to be at a fork in the road,” FWS assistant director for ecological services Gary Frazer wrote to agency director Aurelia Skipwith.

The next paragraph in the email was redacted, but Frazer added that NMFS and NOAA would “stay on board” if FWS was open to working through White House Office of Management and Budget comments and “willing to consider substantive changes to the draft.”

A day later, Frazer wrote to FWS colleagues that he “heard back from the director” and that “she and the rest of the political team understand that this course may cause NMFS and NOAA to withdraw from this rulemaking.”

Spokespeople for NMFS and FWS, which is part of the Interior Department, declined to provide specifics on what caused the dispute.

Critics say the emails indicate that efforts by Interior Secretary David Bernhardt to roll back the ESA have encountered pushback, even within the administration.

“Interior under Dave Bernhardt is just gunning to gut the ESA, and the fact that clearly they were proposing things that were a bridge too far even for the Trump NOAA and National Fisheries Service is pretty telling,” said David Henkin, an attorney with Earthjustice.

The emails showed that FWS officials even started making contingency plans in case they lost support from NMFS.

Frazer told agency officials to get information about whether “converting this to a FWS-only rule” will impact its location in the Code of Federal Regulations.

Ultimately, both agencies jointly issued the habitat definition rule. It was finalized last month.

Spokespeople for both agencies declined to say how a resolution was reached or if any changes were made to the rule, which narrows the definition of a habitat under the ESA.

In order for an area to be classified as a critical habitat for endangered species and receive protections under the ESA, it must first be classified as a habitat.

The new rule, which was first proposed over the summer, says a habitat must be an area that can currently support species.

Environmentalists argue the revised definition ignores factors that could alter landscapes, including climate change, and the government needs to be able to protect land that could support species in the future.

Supporters of the change have argued that the previous rule was too burdensome on farmers and other industries.

An FWS spokesperson said the rule “importantly brings the ESA into the 21st century by more effectively balancing science-based conservation with common-sense policymaking.”

Shortly after issuing the rule, FWS alone issued a related one that further excluded certain areas from habitat protections under the ESA.

That rule said FWS can exclude an area from critical habitat protections if an analysis determined there are more benefits to taking no protective action.

Those analyses could prove beneficial to companies who want to use the land for other purposes, and opponents argued that the evidence they can consider could tip the scale in favor of industry.

FWS spokespeople would not say why that rule was issued separately by the agency. 

Environmentalists say it’s unusual that the second rule does not also apply to NMFS-designated habitats.

“I don’t know of any substantive, material conservation-related reason why … exclusions would apply differently” said Jacob Malcom, director of Defenders of Wildlife’s Center for Conservation Innovation.

Malcom added that he believes the habitat rulemaking is part of a larger pattern of putting politics over science in the Trump administration.

“I don’t think that it matters what the domain is, whether it’s endangered species or climate or clean water or clean air where they haven’t done everything they can to remove science from the process,” he said.