1 00:00:03,480 --> 00:00:07,560 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,640 --> 00:00:10,440 Speaker 1: day we bring you insight and analysis into the most 3 00:00:10,480 --> 00:00:13,399 Speaker 1: important legal news of the day. You can find more 4 00:00:13,480 --> 00:00:18,040 Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud, 5 00:00:18,320 --> 00:00:22,239 Speaker 1: and on Bloomberg dot com slash podcasts. The reason you 6 00:00:22,280 --> 00:00:24,919 Speaker 1: can still see a bald eagle, a humpback whale, or 7 00:00:24,920 --> 00:00:29,040 Speaker 1: the California condor is the Endangered Species Act, the landmark 8 00:00:29,160 --> 00:00:32,159 Speaker 1: law that has protected fish, plants, and wildlife since it 9 00:00:32,200 --> 00:00:35,560 Speaker 1: was signed into law by President Richard Nixon. But now 10 00:00:35,560 --> 00:00:39,440 Speaker 1: the Trump administration has announced changes that will profoundly weaken 11 00:00:39,520 --> 00:00:42,720 Speaker 1: the Act. Polar bears and seals, whooping cranes, and belooga 12 00:00:42,760 --> 00:00:45,400 Speaker 1: whales are some of the animals that are at risk. 13 00:00:45,920 --> 00:00:49,120 Speaker 1: Joining me as pat parento and environmental law professor at 14 00:00:49,240 --> 00:00:54,000 Speaker 1: Vermont Law School, Pat explain how the Trump overhaul will 15 00:00:54,080 --> 00:00:58,320 Speaker 1: change the Act. Well. Probably the most significant changes that 16 00:00:59,600 --> 00:01:01,560 Speaker 1: admit of station is saying that they will now take 17 00:01:01,600 --> 00:01:04,720 Speaker 1: economics into account at the stage at which you decide 18 00:01:04,760 --> 00:01:08,960 Speaker 1: whether a species should be listed. The statute clearly prohibits 19 00:01:09,040 --> 00:01:11,839 Speaker 1: that the case law over the last forty five years 20 00:01:11,880 --> 00:01:15,920 Speaker 1: has reinforced that so the idea that you would include 21 00:01:16,120 --> 00:01:20,600 Speaker 1: in your consideration the economic costs, of course, which are 22 00:01:20,680 --> 00:01:24,520 Speaker 1: very speculative at the earliest stages. It's just flatly illegal. 23 00:01:24,840 --> 00:01:27,600 Speaker 1: The Trump administration is claiming that they don't intend to 24 00:01:27,640 --> 00:01:31,280 Speaker 1: actually rely on the economic data when they make the decision, 25 00:01:31,360 --> 00:01:34,440 Speaker 1: but nevertheless they're going to consider it and disclose it. 26 00:01:34,880 --> 00:01:38,959 Speaker 1: And the law says that that agencies cannot consider irrelevant 27 00:01:39,080 --> 00:01:41,920 Speaker 1: or improper factors when they're making decisions. And I would 28 00:01:41,959 --> 00:01:45,360 Speaker 1: say that the consideration of economic costs has nothing to 29 00:01:45,360 --> 00:01:47,840 Speaker 1: do with whether or not a species is in danger. 30 00:01:47,920 --> 00:01:51,120 Speaker 1: That's a purely scientific question. So I don't have any 31 00:01:51,160 --> 00:01:53,760 Speaker 1: doubt that the courts are going to strike that particular 32 00:01:54,080 --> 00:01:57,240 Speaker 1: aspect of the rule down. It's supposed to be about 33 00:01:57,280 --> 00:02:01,560 Speaker 1: the science, not the price tag. What about the impact 34 00:02:01,600 --> 00:02:04,640 Speaker 1: of climate change? Is that also being taken out of 35 00:02:04,640 --> 00:02:09,360 Speaker 1: the consideration. Yes, they're they're narrowing the definition of what's 36 00:02:09,360 --> 00:02:13,240 Speaker 1: reasonably foreseeable, and they're requiring a higher level of proof 37 00:02:13,880 --> 00:02:18,519 Speaker 1: um that climate change will in fact jeopardized species such 38 00:02:18,560 --> 00:02:22,880 Speaker 1: as the polar bear, the ring seal, the bearded seal, 39 00:02:23,000 --> 00:02:27,120 Speaker 1: the penguins, the wolverine. These are all species that are 40 00:02:27,240 --> 00:02:30,359 Speaker 1: very much at risk from the changes the climate change 41 00:02:30,360 --> 00:02:33,120 Speaker 1: is is creating within their habitats, whether they're in the 42 00:02:33,320 --> 00:02:36,760 Speaker 1: Arctic or in the high elevation habitat. Of species like 43 00:02:36,800 --> 00:02:41,000 Speaker 1: the wolverine, we know beyond doubt that climate change is 44 00:02:41,040 --> 00:02:43,880 Speaker 1: altering their habitats to the point where if it continues, 45 00:02:44,240 --> 00:02:47,000 Speaker 1: they will go extinct. It's just a matter of time, 46 00:02:47,040 --> 00:02:50,800 Speaker 1: and that time maybe decades, not not centuries. So the 47 00:02:50,840 --> 00:02:53,359 Speaker 1: idea that you were going to raise the bar of 48 00:02:53,560 --> 00:02:57,120 Speaker 1: proof of when and how climate change is going to 49 00:02:57,240 --> 00:03:01,000 Speaker 1: drive these species to extinction again flies in the face 50 00:03:01,440 --> 00:03:04,520 Speaker 1: of the policy and the language of the Endangered Species Act. 51 00:03:04,760 --> 00:03:07,360 Speaker 1: The Supreme Court in the in the famous Teleco Damn 52 00:03:07,400 --> 00:03:12,240 Speaker 1: case said, the statute is the institutionalization of caution. And 53 00:03:12,280 --> 00:03:14,600 Speaker 1: so the idea is that you act while there's still 54 00:03:14,600 --> 00:03:19,880 Speaker 1: time to avoid extinction, not wait until the science is conclusive, 55 00:03:20,000 --> 00:03:24,040 Speaker 1: by which time it's too late. The Environmental Species Act 56 00:03:24,240 --> 00:03:27,920 Speaker 1: is a pretty popular law among the public, and, as 57 00:03:27,960 --> 00:03:31,480 Speaker 1: you mentioned, a landmark law. So what groups are going 58 00:03:31,520 --> 00:03:36,440 Speaker 1: to benefit from this oil and gas industry, fossil fuel industry, 59 00:03:37,240 --> 00:03:42,360 Speaker 1: to some extent, users of public lands, people that grays, livestock, 60 00:03:42,920 --> 00:03:47,480 Speaker 1: uh timber, companies, mining companies, mostly extractive industries, that the 61 00:03:47,520 --> 00:03:52,440 Speaker 1: real damage to endanger species habitat comes from these really large, 62 00:03:52,480 --> 00:03:57,960 Speaker 1: industrial scale extractive industries. UM Urban sprawl certainly contributes a 63 00:03:58,000 --> 00:04:02,880 Speaker 1: significant amount of habitat loss as well pollution invasive species, 64 00:04:02,920 --> 00:04:07,640 Speaker 1: but the really big hit on species habitat is coming 65 00:04:07,720 --> 00:04:11,400 Speaker 1: from the consumption of natural resources that are way beyond 66 00:04:11,800 --> 00:04:15,680 Speaker 1: the capacity of ecosystems to recover in time to save 67 00:04:15,720 --> 00:04:20,000 Speaker 1: these species from extinction. We've talked before about lawsuits to 68 00:04:20,080 --> 00:04:23,680 Speaker 1: try to save northern spotted owls and snail darters and 69 00:04:24,080 --> 00:04:30,120 Speaker 1: other creatures. In Massachusetts and California have said that they 70 00:04:30,120 --> 00:04:34,200 Speaker 1: are going to file a lawsuit against this revision by 71 00:04:34,240 --> 00:04:37,840 Speaker 1: the Trump administration. Is that an uphill battle or an 72 00:04:37,839 --> 00:04:41,400 Speaker 1: easier case, Well, it's going to depend on each issue. 73 00:04:41,480 --> 00:04:44,200 Speaker 1: Like I said, on the economic question, I think there's 74 00:04:44,200 --> 00:04:47,719 Speaker 1: a certainty that the courts will strike that down, that 75 00:04:47,640 --> 00:04:51,320 Speaker 1: that at at best it's an irrelevant factor, and at worst, 76 00:04:51,640 --> 00:04:54,960 Speaker 1: it's poisoning the decision making process and of course riling 77 00:04:55,040 --> 00:04:58,400 Speaker 1: up all kinds of political opposition to Listing some of 78 00:04:58,440 --> 00:05:02,040 Speaker 1: the other changes they've made, one in particular, where they're 79 00:05:02,080 --> 00:05:05,280 Speaker 1: no longer going to automatically protect species that are listed 80 00:05:05,279 --> 00:05:09,840 Speaker 1: as threatened as opposed to endangered. That's probably frankly within 81 00:05:09,880 --> 00:05:12,560 Speaker 1: their discretion. So that's going to be a hard one 82 00:05:12,600 --> 00:05:17,000 Speaker 1: to challenge legally, But practically, what that means is species 83 00:05:17,000 --> 00:05:19,200 Speaker 1: that are listed as threatened, and that's the way most 84 00:05:19,200 --> 00:05:22,400 Speaker 1: of the species are currently being listed, will will not 85 00:05:22,600 --> 00:05:26,160 Speaker 1: have the same protections that they have had historically unless 86 00:05:26,640 --> 00:05:30,479 Speaker 1: and until the Fishing Wildlife Service adopts a rule that 87 00:05:30,560 --> 00:05:34,640 Speaker 1: defines what constitutes harm to the species. Problem with that 88 00:05:35,080 --> 00:05:37,400 Speaker 1: is that the Fishing Wildlife Service doesn't have the budget 89 00:05:37,720 --> 00:05:40,800 Speaker 1: to even keep up with the current workload that they 90 00:05:40,800 --> 00:05:43,440 Speaker 1: have their way behind. They have been for years in 91 00:05:43,640 --> 00:05:48,160 Speaker 1: listing species and designating critical habitat and protecting them. So 92 00:05:48,480 --> 00:05:51,800 Speaker 1: this is just another layer of bureaucratic workload for which 93 00:05:51,880 --> 00:05:54,760 Speaker 1: they don't have the resources or the budget, and for 94 00:05:54,800 --> 00:05:58,040 Speaker 1: which the Trump administration has proposed to cut the Fishing 95 00:05:58,080 --> 00:06:03,480 Speaker 1: Wildlife Service budget for money by So the administration is 96 00:06:03,520 --> 00:06:05,600 Speaker 1: talking out of both sides of their mouth. On the 97 00:06:05,640 --> 00:06:07,600 Speaker 1: one hand, they're saying they're trying to make this act 98 00:06:07,640 --> 00:06:10,760 Speaker 1: more efficient and more effective, and on the other hand, 99 00:06:11,000 --> 00:06:14,160 Speaker 1: they're saddling the Fish and Wildlife service with demands for 100 00:06:14,200 --> 00:06:17,599 Speaker 1: which they don't have resources, and haven't there been some 101 00:06:17,680 --> 00:06:23,240 Speaker 1: species that have not been saved despite the Endangered Species Act. 102 00:06:23,360 --> 00:06:27,000 Speaker 1: I'm thinking I think it's the caribou. Yes, the woodland 103 00:06:27,080 --> 00:06:32,120 Speaker 1: cariboo sadly has now disappeared from the United States territory 104 00:06:32,279 --> 00:06:36,200 Speaker 1: they formerly occupied in Montana. The very last living survivor 105 00:06:36,240 --> 00:06:38,920 Speaker 1: of the woodland cariboo died this year. There's still a 106 00:06:38,960 --> 00:06:42,120 Speaker 1: small herd of woodland cariboo in Canada, but we've lost 107 00:06:42,480 --> 00:06:45,440 Speaker 1: that part of our natural heritage. And there's been about 108 00:06:45,520 --> 00:06:49,000 Speaker 1: eight species that have gone extinct waiting to be listed. 109 00:06:49,040 --> 00:06:52,800 Speaker 1: So anything that you do to further complicate and delay 110 00:06:52,880 --> 00:06:56,960 Speaker 1: the listing process increases the likelihood that these species are 111 00:06:56,960 --> 00:06:59,719 Speaker 1: going to go extinct by the time they do get listed. 112 00:07:00,040 --> 00:07:03,520 Speaker 1: The scientists call it an extinction vortex. When these species 113 00:07:03,560 --> 00:07:07,680 Speaker 1: begin to decline and they dropped below a critical population mass, 114 00:07:07,960 --> 00:07:10,880 Speaker 1: they're pretty much gonners. No matter what we tried to do. 115 00:07:11,000 --> 00:07:13,600 Speaker 1: You mentioned the condor. The only reason we saved the 116 00:07:13,640 --> 00:07:16,200 Speaker 1: condor as we collected all the ones that were in 117 00:07:16,200 --> 00:07:20,640 Speaker 1: the wild, took him into captivity and bred captive condors 118 00:07:20,680 --> 00:07:23,640 Speaker 1: and then released them. That's the only way they saved 119 00:07:23,640 --> 00:07:27,160 Speaker 1: that population. Thank you so much for joining us. Pat. 120 00:07:27,560 --> 00:07:31,120 Speaker 1: That's Pat Parento. He's a professor at Vermont Law School. 121 00:07:32,600 --> 00:07:35,560 Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can 122 00:07:35,600 --> 00:07:39,320 Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud, 123 00:07:39,400 --> 00:07:43,320 Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso. 124 00:07:43,800 --> 00:07:47,600 Speaker 1: This is Bloomberg Ye.