Senate Permitting Deal Threatens Bedrock Endangered Species Protections

Defenders of Wildlife today strongly condemned Endangered Species Act provisions reportedly included in a Senate permitting package, warning they would weaken critical protections for imperiled wildlife.

“If it comes to pass, this deal would bulldoze America's most important wildlife law,” said Andrew Bowman, president and CEO of Defenders of Wildlife. “We can build the infrastructure America needs without sacrificing the wildlife we have a responsibility to protect and that Americans cherish. Development should not come at the expense of science, accountability or the ability of America’s most imperiled wildlife to survive.”

The reported agreement would make sweeping changes to the Endangered Species Act, which requires federal agencies to ensure actions they authorize, fund or carry out do not jeopardize threatened and endangered species or destroy or adversely modify their critical habitat. Consultations on the impacts of projects on endangered species under the ESA are already fast – with the median formal consultation lasting just two months, and the median informal consultation lasting just two weeks.  

Among other changes, the proposal would:

• Condense endangered species reviews, cut key consultation timelines and create new onerous avenues for project applicants to challenge delays in court.
• Shift significant federal responsibilities under the ESA to states, including some consultation and incidental take responsibilities.
• Rewrite requirements governing the “best scientific and commercial data available,” prescribing how agencies evaluate data, models and scientific uncertainty.
• Exempt certain right-of-way projects from key ESA consultation requirements.
• Restrict judicial review of ESA decisions.
• Change injunctive standards to tie the hands of judges and allow a project to continue even if a judge finds that it violates the law.

Taken together, these provisions go far beyond improving permitting efficiency. They would weaken the scientific review, federal oversight and accountability at the heart of the Endangered Species Act.

“Congress should be looking for ways to make permitting more efficient rather than a Trojan horse to weaken the Endangered Species Act,” Bowman said. “Efficiency and conservation are not opposing goals. A durable permitting bill should deliver both. Congress should not lock in permanent damage to the Endangered Species Act simply to get a deal today.”

Defenders of Wildlife will closely review the legislation and urge senators to reject provisions that weaken the Endangered Species Act.

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