The protection of threatened species will now be weighed against the economic benefit their extinction might mean. Meanwhile, states would no longer be able to review the impact of projects on water quality, in accordance with the decades-old the Clean Water Act
JACQUELINE LUQMAN: This is Jacqueline Luqman with The Real News Network.
Recently, the Trump administration has announced a twofer: a swing at the Clean Water Act and a whack at the Endangered Species Act. There are proposals aimed at weakening the laws that are now staples of the federal environmental review process that were ushered in during the Nixon era.
For the Clean Water Act, the US Environmental Protection Agency announced a shortening of the time period for regulatory review of major projects to a time period of no more than one year for states and tribes. It also allows the federal agencies to override state’s decisions on water issues to deny permits for projects in some situations. And for the Endangered Species Act, just days later, the Trump administration announced that the US Department of Interior finalized a rule calling on the federal government to weigh economic factors before categorizing a species as endangered or threatened, despite what the science may say about the matter. Further, those species listed as threatened will no longer have the same level of safeguards as those who are endangered.
But what will this mean in action in real life for environmental and climate protections? Well, we have some guests to talk about these seismic shifts in the environmental regulatory landscape. One of them is Ryan Shannon, a staff attorney for the Center for Biological Diversity. Welcome, Ryan.
RYAN SHANNON: Thanks for having me.
JACQUELINE LUQMAN: And the other is Elizabeth Klein, Deputy Director of the State Energy and Environmental Impact Center at New York University School of Law. Welcome, Elizabeth.
ELIZABETH KLEIN: Thank you.
JACQUELINE LUQMAN: Thank you both for joining me. So let’s start, Elizabeth, with the Clean Water Act. I want to ask, the compliance with the act, it’s a routine part of federal environmental reviews for major projects. What exactly is the Trump administration’s proposal? What are they changing and what will the potential impact be if this change is adopted?
ELIZABETH KLEIN: Well, what they’re considering here is really a fundamental shift in how water quality certifications have been reviewed and processed by states. The Clean Water Act sets out a pretty clear process that’s been used for decades now that allows states, actually gives them the authority to ensure that major infrastructure projects like pipelines or other projects that might be on the landscape for years and years, even decades, won’t impair the water quality of bodies of water in their states. The act is very clear that states have the authority to review requests for these certifications.
And what the administration is doing is really a full frontal assault on the states’ authority to review and decide whether or not projects are going to impair water quality. And so they are shortening the timeframe. You mentioned a year. In fact, the EPA wants to make it possible for certain agencies, like the US Army Corps of Engineers and the Federal Energy Regulatory Commission, to shorten that timeframe to as little as six months. They want to be able to exercise an amount of federal oversight that’s really inappropriate and reach in and decide whether or not they think the state has made a good decision on whether or not a project will impair water quality, which is inconsistent with the act and just decades of implementation of this process.
JACQUELINE LUQMAN: And the proposed changes to the Clean Water Act would also impact tribal authority. Could you explain a little bit how that would change if this rule is adopted?
ELIZABETH KLEIN: Well, what they’re trying to do, again, is really reach into these processes that states, and in some limited cases tribes, have the authority to also issue these water quality certifications. The federal government is trying to impose a process where they could, for instance, decide that a state or a tribe’s review of whether a project meets the water quality certifications of an area in fact does or does not do that and they are going to inject apparently their views on whether or not the project is something that should trump the water quality of these bodies of water. So again, it’s really – it’s an assault on the whole system of cooperative federalism that had been set up by the act that gives the authority to states and tribes, the ones who are actually on the ground and understand the bodies of water that are going to be affected. It really trumps their authority to do what they have done for years, which is determine whether projects are going to impair water quality.
JACQUELINE LUQMAN: That pun I’m sure is completely intended. So now over to you, Ryan. Let me ask you. The Trump administration said that economic factors will now be a major part of its endangered categorization process in regard to the Endangered Species Act. Is there any legitimacy to the claims of negative economic impact to designating an area that contains a threatened or an endangered species, that was the reason that was cited that this change, this rule change, would be implemented? Is there any legitimacy to that claim?
RYAN SHANNON: No. There really is none, and we should be clear about what this exactly is proposing to do. What they’re intending to do is inject economic considerations into what is fundamentally a scientific decision. Is a species threatened or endangered? And Congress was very clear when it wrote the Endangered Species Act and when they amended it, that listing decisions are solely based on the best available science. That amendment to the Endangered Species Act actually came about because the Reagan administration tried to do the very same thing and inject economic considerations into the listing process. And what this is going to do is either result in listing decisions that are undermined by undue economic considerations. Or at best, it’s going to bring the listing process to a grinding halt, as the service goes through these costly and time-consuming economic impacts analysis.
Now, we should be clear that there’s two pieces. There’s the listing of an endangered or threatened species, and then there’s the designation of critical habitat. When designating critical habitat, they can take into account the economic decisions and then they may decide to exclude certain areas from a critical habitat decision. But when they’re considering listing a species, it’s very, very clear that it’s only based on the best available science and economic considerations play no role. So that begs the question, if economic considerations are entirely irrelevant to the listing process, why do them at all?
JACQUELINE LUQMAN: And that does bring us to the next question, which is a question I want to ask both of you. For both of these rules changes, what’s the motive for these rules changes? In other words, cui bono, who benefits? And how strictly enforced where these laws and regulations? And did they ever serve to slow down federal project proposals, which is another excuse that has been used, or I should say another justification, that has been used from making these claims? Elizabeth, what do you have to say about that?
ELIZABETH KLEIN: Well, honestly the proposal to strip and fundamentally weaken the authority of states and tribes to review water quality certification applications – I’m not exactly sure who benefits. If I were a proponent of a large infrastructure project, for instance, if I was working for an energy company or for a housing development or for any of the large infrastructure projects you can think of that might affect or impair water quality in some way, I would be very concerned about what they’re proposing here.
The proposal is fundamentally at odds with what’s in the statute itself. EPA even went so far in its proposal to suggest that it disagreed with an opinion of the Supreme Court, of all things, that the Supreme Court had gotten a decision wrong about the ability of states to decide what the scope of water quality means. And so, it’s not clear to me who this benefits. Potentially the administration thinks that this will benefit their ability to be reelected. It seems very political and separate and apart from what’s actually called for by the Clean Water Act.
JACQUELINE LUQMAN: And Ryan, what’s your take on this in regard to the Endangered Species Act? Who benefits from this rule change?
RYAN SHANNON: What we know for certain is that endangered and threatened species will not benefit at all from these rule changes. And then I think the folks that do benefit are David Bernhardt’s former clients. The Department of Interior right now is staffed with numerous individuals who have described endangered species as incoming Scud missiles. And Karen Budd-Falen, who’s the acting Assistant Deputy of Fish, Wildlife and Parks, once said that if given the chance, she would repeal the ESA in a heartbeat.
JACQUELINE LUQMAN: So in fact, climate and environmental activists, which both of you have expressed, say that the proposed changes in the Clean Water Act and the Environmental Protection Act could lead to expedited permits for pipelines, especially in regards to the Clean Water Act and other related infrastructure. And interestingly, EPA administrator, Andrew Wheeler, who is a former fossil fuel industry lobbyist, agreed in an interesting and odd way with the environmental activists when he said in a comment, “Under President Trump, the United States has become the number one oil and gas energy producer in the world. When implemented, this proposal, the change to the Clean Water Act, will streamline the process for constructing new energy infrastructure projects that are good for American families, American workers, and the American economies.”
So clearly these rules changes are for the benefit of, at least from the administration’s perspective, the energy suppliers that want to circumvent these laws to build their infrastructures, to extract more fossil fuels from the ground and destroy our ecosystem in the process. So this brings us to the next question. Ryan, what’s the significance of the change to the act that’s calling for species categorized as threatened, which is one step below endangered, no longer receiving the same protections as species in the endangered category? What will this mean in real life and how will that be carried out if it’s adopted?
RYAN SHANNON: So what this means in real life is that species that are listed as threatened in the future, won’t receive the protections that they have received for the past 40 years. The Fish and Wildlife Service, early on in the implementation of the Endangered Species Act, decided that presumptively it was going to provide all of the protections provided to endangered species, to threatened species as well. Primarily, this means that they’re protected from take. Take is a term of [inaudible], which basically means that you can’t harm, harass or kill an endangered species. And so threatened wildlife presumptively had that protection provided to them as well. Now, the act always has had this provision called the Section 4(d). And under Section 4(d), fish and wildlife was always free to issue a species-specific 4(d) rule. And that could change that blanket protection and provide certain exemptions or provisions that were intended to benefit the species— basically allow a little bit of flexibility.
So they always had that ability to provide certain flexibilities around threatened species. What this administration has decided to do is just remove the presumptive protection altogether and instead only provide protections if and when they issued these species-specific 4(d) rules. And these species-specific 4(d) rules historically have not been good for species. For instance, in 2014 there was a species-specific 4(d) rule issued for the Lesser Prairie Chicken and it effectively exempted oil and gas ranching and energy development projects from any restrictions on the Endangered Species Act. And was those very same actions that were threatening the Lesser Prairie Chicken in the first place. So you end up having a species that is listed as threatened, but doesn’t enjoy the protections that it should underneath the act.
And so going forward, threatened species just won’t receive the same kind of protections that they have in the past. These lifesaving protections that have prevented 99% of the species listed under the Endangered Species Act from going extinct. And what I think we’ll see is more and more species being listed as threatened rather than endangered, so that they do not receive the protections provided to endangered species.
JACQUELINE LUQMAN: And will the advent, the onset of climate change, the climate crisis as seeing the results of climate change, will that make this situation with the endangered species and threatened species, will that make the situation worse with this rule change?
RYAN SHANNON: Yes, it certainly will. I mean, we are living through the sixth mass extinction right now and more and more species are feeling the full brunt and effects of climate change. And what these rule changes do is both look to disregard climate science, the best available science. When listing a species, they seek to disregard the impact of climate. When considering listing a species as threatened, they look to disregard protecting critical habitat that is threatened because of climate change. And then also, there is a regulation that’s going to change the way that the US Fish and Wildlife Service and other federal agencies conduct Section 7 consultations under the act. These consultations ensure that federal agency actions do not jeopardize listed species or destroy or adversely modify their critical habitat, and they’ve effectively written climate change out of that process.
JACQUELINE LUQMAN: So Elizabeth, it looks like many states have already stated their intent to sue the Trump administration in regard to these changes to the Clean Water Act and the Endangered Species Act. Do you expect more states to jump in to sue the administration, to stop the implementation of these rules in their states? And what do you see as the potential success of these actions?
ELIZABETH KLEIN: Well, state Attorneys General have really from the beginning of this administration had been clear that they’re not going to stand by and ignore the administration’s attempts to flout the law and roll back really bedrock environmental protections under a whole suite of acts— the Clean Air Act, the Clean Water Act, the Endangered Species Act. The list is long. And although there is a large number of things they’ve had to become engaged in, state AGs really are continuing to fight against what they see as unlawful rollbacks that are harmful to public health, to their constituents and to the environment. And so with respect to the Endangered Species Act, that was a final rule that’s been issued by the administration, and you saw Massachusetts Attorney General Healey and California Attorney General Becerra come out strong out of the gate and indicate that they are upset and believe that these final rules are unlawful and they will challenge them.
With respect to the Section 401 proposed rule that’s come out from the EPA, there is still a process to go through before we would get to litigation necessarily. And so I would expect a number of states to jump in with pretty forceful comments to the EPA about how they view this new proposed rule as unlawful under the Clean Water Act and an inappropriate abdication of responsibilities that have been provided to the states. If EPA chooses to ignore those comments, I would assume that there will be legal challenges down the road. But right now, we’re in a rulemaking process. And so I suppose we could always have hope that the administration will listen and come to reason and decide that this is not the direction they want to go in.
JACQUELINE LUQMAN: It’s a pretty incredible state of affairs when what we have left is hope that the administration will listen to science. But that is where we are. And I want to thank both of you so much, Ryan Shannon and Elizabeth Klein, for joining me today to really dig into what could happen with these rules changes and what is happening with these rules changes to these two important pieces of environmental legislation. Thank you for joining me today, both of you.
RYAN SHANNON: Thanks for having me.
ELIZABETH KLEIN: Thank you.
JACQUELINE LUQMAN: And thank you for watching. This is Jacqueline Luqman with The Real News Network in Baltimore.