The 1973 Endangered Species Act (ESA) is the most powerful law for the protection of imperiled wildlife ever enacted by any nation. Among the most important parts of the ESA are section 7, which guards against federal agency actions likely to jeopardize species’ existence or destroy their critical habitat, and section 4, which provides for the listing of species as “threatened” or “endangered” under the ESA and the designation of “critical habitat” for listed species.
But the devil is often in the details. In addition to the ESA itself, the federal wildlife agencies (that is, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service) have enacted regulations providing more detail about how the law must be implemented. If well-drafted, these regulations have the potential to enhance and further conservation of imperiled species, building on the national commitment to preventing extinction that Congress made in 1973. But, if poorly drafted, the regulations can result in real harm to struggling species and their habitat.
In the past five years, as presidential administrations have come and gone, the ESA regulations have been revised, taken back, and revised again. Where does this leave imperiled species?
This three-part series from Defenders of Wildlife’s Biodiversity Law Center takes on that question. We’ve divided the most recent ESA regulations, from 2024, into “the good, the middling and the ugly.” Let’s start today with “the good.”
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The 2024 ESA regulations took a big step in the right direction for species protection by reinstating what’s often called the “blanket 4(d) rule.”
What is “4(d)”?
This is a reference to section 4(d) of the ESA, which allows the wildlife agencies to enact special regulations for species listed as “threatened.” See 16 U.S.C. § 1533. Threatened species need special regulations because they do not automatically receive some of the protections that cover “endangered” species (which, at the time of listing, are closer to extinction than threatened species). Most importantly, the ESA automatically shields endangered species against “take,” which means that as soon as a species is listed as endangered no one can kill, capture, or harm members of that species without a special permit. Threatened species are only protected against “take” if there is a rule under section 4(d) providing this protection.
What is the “blanket rule”?
For years, the U.S. Fish and Wildlife Service’s “blanket 4(d) rule” solved this problem for terrestrial and freshwater species by automatically protecting all threatened species from “take.” In 2019, however, the Fish and Wildlife Service rescinded the “blanket” rule.
What harm can come of failure to protect threatened species with a blanket 4(d) rule?
The rescission created multiple problems. First, newly listed threatened species no longer received the automatic protection they had so long enjoyed. Second, the new need to consider and adopt specific 4(d) rules for each newly listed threatened species consumed additional agency resources for the already under-funded Fish and Wildlife Service. Third, in the past some species-specific section 4(d) rules have contained problematic carveouts for activities known to harm the species. This paper from Defenders of Wildlife’s Center for Conservation Innovation details some of these carveouts. For example, the Utah prairie dog rule authorized take of the species on a large scale: tens of thousands of animals were legally taken under the rule from 1985 to 2013. In some years, over 10% of the total rangewide population was taken. See 77 Fed. Reg. 46,158, 46,169 (Aug. 12, 2012) (4(d) rule revision) (Table 3). The high levels of take authorized in the rule were challenged in court, with the agency acknowledging that the take levels “may not be biologically sound.” WildEarth Guardians v. Salazar, 741 F. Supp. 2d 89, 105 (D.D.C. 2010) (remanding rule on other grounds).
Fortunately, the 2024 ESA regulations reinstate the blanket 4(d) rule, restoring automatic protections to threatened species listed in the future. This is a win for conservation, and it shows the real good that can come from carefully crafted, well-drafted ESA regulations.
Author
Ellen Richmond
Areas of Expertise: Litigation, National Environmental Policy Act, Endangered Species Act, FOIA
Ellen Medlin Richmond advocates to protect imperiled species and their habitat across the West
Daniel Franz
Daniel’s litigation and legal advocacy work involves the protection of endangered species and their habitat across the country.
Before joining Defenders, Daniel was an environmental
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