WEBVTT - Polar Bears At Risk Under Trump Environmental Law

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com slash podcasts. The reason you

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<v Speaker 1>can still see a bald eagle, a humpback whale, or

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<v Speaker 1>the California condor is the Endangered Species Act, the landmark

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<v Speaker 1>law that has protected fish, plants, and wildlife since it

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<v Speaker 1>was signed into law by President Richard Nixon. But now

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<v Speaker 1>the Trump administration has announced changes that will profoundly weaken

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<v Speaker 1>the Act. Polar bears and seals, whooping cranes, and belooga

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<v Speaker 1>whales are some of the animals that are at risk.

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<v Speaker 1>Joining me as pat parento and environmental law professor at

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<v Speaker 1>Vermont Law School, Pat explain how the Trump overhaul will

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<v Speaker 1>change the Act. Well. Probably the most significant changes that

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<v Speaker 1>admit of station is saying that they will now take

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<v Speaker 1>economics into account at the stage at which you decide

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<v Speaker 1>whether a species should be listed. The statute clearly prohibits

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<v Speaker 1>that the case law over the last forty five years

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<v Speaker 1>has reinforced that so the idea that you would include

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<v Speaker 1>in your consideration the economic costs, of course, which are

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<v Speaker 1>very speculative at the earliest stages. It's just flatly illegal.

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<v Speaker 1>The Trump administration is claiming that they don't intend to

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<v Speaker 1>actually rely on the economic data when they make the decision,

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<v Speaker 1>but nevertheless they're going to consider it and disclose it.

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<v Speaker 1>And the law says that that agencies cannot consider irrelevant

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<v Speaker 1>or improper factors when they're making decisions. And I would

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<v Speaker 1>say that the consideration of economic costs has nothing to

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<v Speaker 1>do with whether or not a species is in danger.

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<v Speaker 1>That's a purely scientific question. So I don't have any

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<v Speaker 1>doubt that the courts are going to strike that particular

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<v Speaker 1>aspect of the rule down. It's supposed to be about

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<v Speaker 1>the science, not the price tag. What about the impact

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<v Speaker 1>of climate change? Is that also being taken out of

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<v Speaker 1>the consideration. Yes, they're they're narrowing the definition of what's

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<v Speaker 1>reasonably foreseeable, and they're requiring a higher level of proof

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<v Speaker 1>um that climate change will in fact jeopardized species such

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<v Speaker 1>as the polar bear, the ring seal, the bearded seal,

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<v Speaker 1>the penguins, the wolverine. These are all species that are

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<v Speaker 1>very much at risk from the changes the climate change

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<v Speaker 1>is is creating within their habitats, whether they're in the

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<v Speaker 1>Arctic or in the high elevation habitat. Of species like

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<v Speaker 1>the wolverine, we know beyond doubt that climate change is

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<v Speaker 1>altering their habitats to the point where if it continues,

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<v Speaker 1>they will go extinct. It's just a matter of time,

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<v Speaker 1>and that time maybe decades, not not centuries. So the

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<v Speaker 1>idea that you were going to raise the bar of

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<v Speaker 1>proof of when and how climate change is going to

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<v Speaker 1>drive these species to extinction again flies in the face

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<v Speaker 1>of the policy and the language of the Endangered Species Act.

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<v Speaker 1>The Supreme Court in the in the famous Teleco Damn

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<v Speaker 1>case said, the statute is the institutionalization of caution. And

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<v Speaker 1>so the idea is that you act while there's still

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<v Speaker 1>time to avoid extinction, not wait until the science is conclusive,

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<v Speaker 1>by which time it's too late. The Environmental Species Act

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<v Speaker 1>is a pretty popular law among the public, and, as

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<v Speaker 1>you mentioned, a landmark law. So what groups are going

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<v Speaker 1>to benefit from this oil and gas industry, fossil fuel industry,

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<v Speaker 1>to some extent, users of public lands, people that grays, livestock,

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<v Speaker 1>uh timber, companies, mining companies, mostly extractive industries, that the

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<v Speaker 1>real damage to endanger species habitat comes from these really large,

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<v Speaker 1>industrial scale extractive industries. UM Urban sprawl certainly contributes a

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<v Speaker 1>significant amount of habitat loss as well pollution invasive species,

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<v Speaker 1>but the really big hit on species habitat is coming

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<v Speaker 1>from the consumption of natural resources that are way beyond

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<v Speaker 1>the capacity of ecosystems to recover in time to save

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<v Speaker 1>these species from extinction. We've talked before about lawsuits to

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<v Speaker 1>try to save northern spotted owls and snail darters and

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<v Speaker 1>other creatures. In Massachusetts and California have said that they

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<v Speaker 1>are going to file a lawsuit against this revision by

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<v Speaker 1>the Trump administration. Is that an uphill battle or an

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<v Speaker 1>easier case, Well, it's going to depend on each issue.

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<v Speaker 1>Like I said, on the economic question, I think there's

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<v Speaker 1>a certainty that the courts will strike that down, that

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<v Speaker 1>that at at best it's an irrelevant factor, and at worst,

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<v Speaker 1>it's poisoning the decision making process and of course riling

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<v Speaker 1>up all kinds of political opposition to Listing some of

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<v Speaker 1>the other changes they've made, one in particular, where they're

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<v Speaker 1>no longer going to automatically protect species that are listed

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<v Speaker 1>as threatened as opposed to endangered. That's probably frankly within

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<v Speaker 1>their discretion. So that's going to be a hard one

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<v Speaker 1>to challenge legally, But practically, what that means is species

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<v Speaker 1>that are listed as threatened, and that's the way most

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<v Speaker 1>of the species are currently being listed, will will not

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<v Speaker 1>have the same protections that they have had historically unless

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<v Speaker 1>and until the Fishing Wildlife Service adopts a rule that

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<v Speaker 1>defines what constitutes harm to the species. Problem with that

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<v Speaker 1>is that the Fishing Wildlife Service doesn't have the budget

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<v Speaker 1>to even keep up with the current workload that they

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<v Speaker 1>have their way behind. They have been for years in

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<v Speaker 1>listing species and designating critical habitat and protecting them. So

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<v Speaker 1>this is just another layer of bureaucratic workload for which

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<v Speaker 1>they don't have the resources or the budget, and for

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<v Speaker 1>which the Trump administration has proposed to cut the Fishing

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<v Speaker 1>Wildlife Service budget for money by So the administration is

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<v Speaker 1>talking out of both sides of their mouth. On the

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<v Speaker 1>one hand, they're saying they're trying to make this act

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<v Speaker 1>more efficient and more effective, and on the other hand,

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<v Speaker 1>they're saddling the Fish and Wildlife service with demands for

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<v Speaker 1>which they don't have resources, and haven't there been some

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<v Speaker 1>species that have not been saved despite the Endangered Species Act.

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<v Speaker 1>I'm thinking I think it's the caribou. Yes, the woodland

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<v Speaker 1>cariboo sadly has now disappeared from the United States territory

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<v Speaker 1>they formerly occupied in Montana. The very last living survivor

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<v Speaker 1>of the woodland cariboo died this year. There's still a

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<v Speaker 1>small herd of woodland cariboo in Canada, but we've lost

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<v Speaker 1>that part of our natural heritage. And there's been about

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<v Speaker 1>eight species that have gone extinct waiting to be listed.

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<v Speaker 1>So anything that you do to further complicate and delay

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<v Speaker 1>the listing process increases the likelihood that these species are

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<v Speaker 1>going to go extinct by the time they do get listed.

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<v Speaker 1>The scientists call it an extinction vortex. When these species

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<v Speaker 1>begin to decline and they dropped below a critical population mass,

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<v Speaker 1>they're pretty much gonners. No matter what we tried to do.

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<v Speaker 1>You mentioned the condor. The only reason we saved the

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<v Speaker 1>condor as we collected all the ones that were in

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<v Speaker 1>the wild, took him into captivity and bred captive condors

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<v Speaker 1>and then released them. That's the only way they saved

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<v Speaker 1>that population. Thank you so much for joining us. Pat.

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<v Speaker 1>That's Pat Parento. He's a professor at Vermont Law School.

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<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

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<v Speaker 1>subscribe and listen to the show on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com slash podcast. I'm June Brosso.

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<v Speaker 1>This is Bloomberg Ye.