Biden administration leaves
ESA 'habitat' undefined
The Biden administration moved Oct. 27
to undo Donald Trump’s Endangered Species Act reforms,
proposing to give federal officials a free hand in
designating habitat deemed critical for recovery of a
Opening a comment period, the U.S.
Fish and Wildlife Service said it plans to repeal a
definition that limited “habitat” to land that could support
The agency said it will leave habitat
undefined and decide case-by-case the area a species needs
based on the best available science.
The agency also said it planned to
repeal a rule that requires the benefits of designating land
as critical habitat to outweigh the economic costs.
If finalized, the actions will restore
the ESA’s “original intent and purpose,” Assistant Secretary
for Fish and Wildlife and Parks Shannon Estenoz said in a
By repealing the Trump ESA reforms,
President Biden will fulfill a campaign pledge. It also
sides with blue states such as Washington, Oregon and
California that sued to overturn the rules.
The ESA proposals follow by a few
weeks the Biden administration’s announcement it will repeal
Trump reforms to the National Environmental Policy Act.
The Biden administration is returning
to complicated and burdensome rules that do little to
advance conservation, American Farm Bureau President Zippy
Duvall said in a statement.
“Adding uncertainty to environmental
regulations creates another obstacle for farmers as they
work to keep America’s pantries stocked,” he said.
The Trump ESA reforms went into effect
on Donald Trump’s last full day in office. The next day,
President Biden signed an executive order directing agencies
to review Trump policies.
“This is unfortunate, where we have an
administration just throw out what the predecessor did,”
said Jonathan Wood, vice president of law and policy for the
conservative Property and Environmental Research Center in
“We go through this endless cycle
where we go back-and-forth,” he said.
Wood said he was surprised that the
Biden administration chose to repeal the Trump reforms and
revert to previous rules, rather than proposing its own
The Trump ESA reforms responded to a
unanimous U.S. Supreme Court ruling in 2018. The court
chided the Fish and Wildlife Service for designating a
Weyerhaeuser Co. tree farm in Louisiana as critical habitat
for dusky gopher frogs.
The frog couldn’t survive in the tree
farm, unless there were fewer trees. Chief Justice John
Roberts wrote that “critical habitat” implied the land was
The court, however, didn’t order the
agency to define “habitat.” The agency says that it has
reconsidered the court’s decision and concluded it can
address on a case-by-case basis when unoccupied areas are
“habitat” for a particular species.
“I suspect the court will think that
sounds pretty arbitrary,” Wood said. “I think the court has
sent a strong signal that habitat has to have a meaning.”
The Fish and Wildlife Service
criticized a Trump rule for requiring a cost-benefit
analysis when the agency was presented “credible
information” about the potential economic costs of
The rule was too rigid and gave too
much influence to “directly affected parties,” according to
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