Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. The reason you
Speaker 1: can still see a bald eagle, a humpback whale, or
Speaker 1: the California condor is the Endangered Species Act, the landmark
Speaker 1: law that has protected fish, plants, and wildlife since it
Speaker 1: was signed into law by President Richard Nixon. But now
Speaker 1: the Trump administration has announced changes that will profoundly weaken
Speaker 1: the Act. Polar bears and seals, whooping cranes, and belooga
Speaker 1: whales are some of the animals that are at risk.
Speaker 1: Joining me as pat parento and environmental law professor at
Speaker 1: Vermont Law School, Pat explain how the Trump overhaul will
Speaker 1: change the Act. Well. Probably the most significant changes that
Speaker 1: admit of station is saying that they will now take
Speaker 1: economics into account at the stage at which you decide
Speaker 1: whether a species should be listed. The statute clearly prohibits
Speaker 1: that the case law over the last forty five years
Speaker 1: has reinforced that so the idea that you would include
Speaker 1: in your consideration the economic costs, of course, which are
Speaker 1: very speculative at the earliest stages. It's just flatly illegal.
Speaker 1: The Trump administration is claiming that they don't intend to
Speaker 1: actually rely on the economic data when they make the decision,
Speaker 1: but nevertheless they're going to consider it and disclose it.
Speaker 1: And the law says that that agencies cannot consider irrelevant
Speaker 1: or improper factors when they're making decisions. And I would
Speaker 1: say that the consideration of economic costs has nothing to
Speaker 1: do with whether or not a species is in danger.
Speaker 1: That's a purely scientific question. So I don't have any
Speaker 1: doubt that the courts are going to strike that particular
Speaker 1: aspect of the rule down. It's supposed to be about
Speaker 1: the science, not the price tag. What about the impact
Speaker 1: of climate change? Is that also being taken out of
Speaker 1: the consideration. Yes, they're they're narrowing the definition of what's
Speaker 1: reasonably foreseeable, and they're requiring a higher level of proof
Speaker 1: um that climate change will in fact jeopardized species such
Speaker 1: as the polar bear, the ring seal, the bearded seal,
Speaker 1: the penguins, the wolverine. These are all species that are
Speaker 1: very much at risk from the changes the climate change
Speaker 1: is is creating within their habitats, whether they're in the
Speaker 1: Arctic or in the high elevation habitat. Of species like
Speaker 1: the wolverine, we know beyond doubt that climate change is
Speaker 1: altering their habitats to the point where if it continues,
Speaker 1: they will go extinct. It's just a matter of time,
Speaker 1: and that time maybe decades, not not centuries. So the
Speaker 1: idea that you were going to raise the bar of
Speaker 1: proof of when and how climate change is going to
Speaker 1: drive these species to extinction again flies in the face
Speaker 1: of the policy and the language of the Endangered Species Act.
Speaker 1: The Supreme Court in the in the famous Teleco Damn
Speaker 1: case said, the statute is the institutionalization of caution. And
Speaker 1: so the idea is that you act while there's still
Speaker 1: time to avoid extinction, not wait until the science is conclusive,
Speaker 1: by which time it's too late. The Environmental Species Act
Speaker 1: is a pretty popular law among the public, and, as
Speaker 1: you mentioned, a landmark law. So what groups are going
Speaker 1: to benefit from this oil and gas industry, fossil fuel industry,
Speaker 1: to some extent, users of public lands, people that grays, livestock,
Speaker 1: uh timber, companies, mining companies, mostly extractive industries, that the
Speaker 1: real damage to endanger species habitat comes from these really large,
Speaker 1: industrial scale extractive industries. UM Urban sprawl certainly contributes a
Speaker 1: significant amount of habitat loss as well pollution invasive species,
Speaker 1: but the really big hit on species habitat is coming
Speaker 1: from the consumption of natural resources that are way beyond
Speaker 1: the capacity of ecosystems to recover in time to save
Speaker 1: these species from extinction. We've talked before about lawsuits to
Speaker 1: try to save northern spotted owls and snail darters and
Speaker 1: other creatures. In Massachusetts and California have said that they
Speaker 1: are going to file a lawsuit against this revision by
Speaker 1: the Trump administration. Is that an uphill battle or an
Speaker 1: easier case, Well, it's going to depend on each issue.
Speaker 1: Like I said, on the economic question, I think there's
Speaker 1: a certainty that the courts will strike that down, that
Speaker 1: that at at best it's an irrelevant factor, and at worst,
Speaker 1: it's poisoning the decision making process and of course riling
Speaker 1: up all kinds of political opposition to Listing some of
Speaker 1: the other changes they've made, one in particular, where they're
Speaker 1: no longer going to automatically protect species that are listed
Speaker 1: as threatened as opposed to endangered. That's probably frankly within
Speaker 1: their discretion. So that's going to be a hard one
Speaker 1: to challenge legally, But practically, what that means is species
Speaker 1: that are listed as threatened, and that's the way most
Speaker 1: of the species are currently being listed, will will not
Speaker 1: have the same protections that they have had historically unless
Speaker 1: and until the Fishing Wildlife Service adopts a rule that
Speaker 1: defines what constitutes harm to the species. Problem with that
Speaker 1: is that the Fishing Wildlife Service doesn't have the budget
Speaker 1: to even keep up with the current workload that they
Speaker 1: have their way behind. They have been for years in
Speaker 1: listing species and designating critical habitat and protecting them. So
Speaker 1: this is just another layer of bureaucratic workload for which
Speaker 1: they don't have the resources or the budget, and for
Speaker 1: which the Trump administration has proposed to cut the Fishing
Speaker 1: Wildlife Service budget for money by So the administration is
Speaker 1: talking out of both sides of their mouth. On the
Speaker 1: one hand, they're saying they're trying to make this act
Speaker 1: more efficient and more effective, and on the other hand,
Speaker 1: they're saddling the Fish and Wildlife service with demands for
Speaker 1: which they don't have resources, and haven't there been some
Speaker 1: species that have not been saved despite the Endangered Species Act.
Speaker 1: I'm thinking I think it's the caribou. Yes, the woodland
Speaker 1: cariboo sadly has now disappeared from the United States territory
Speaker 1: they formerly occupied in Montana. The very last living survivor
Speaker 1: of the woodland cariboo died this year. There's still a
Speaker 1: small herd of woodland cariboo in Canada, but we've lost
Speaker 1: that part of our natural heritage. And there's been about
Speaker 1: eight species that have gone extinct waiting to be listed.
Speaker 1: So anything that you do to further complicate and delay
Speaker 1: the listing process increases the likelihood that these species are
Speaker 1: going to go extinct by the time they do get listed.
Speaker 1: The scientists call it an extinction vortex. When these species
Speaker 1: begin to decline and they dropped below a critical population mass,
Speaker 1: they're pretty much gonners. No matter what we tried to do.
Speaker 1: You mentioned the condor. The only reason we saved the
Speaker 1: condor as we collected all the ones that were in
Speaker 1: the wild, took him into captivity and bred captive condors
Speaker 1: and then released them. That's the only way they saved
Speaker 1: that population. Thank you so much for joining us. Pat.
Speaker 1: That's Pat Parento. He's a professor at Vermont Law School.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.
Speaker 1: This is Bloomberg Ye.