The story of the Trump administration has been clumsy but meaningful action where action is possible. Congress is an impenetrable swamp and so the only legislative proposals that have passed have been a tax cut that Paul Ryan worked on for 20 years, and a bipartisan criminal justice reform proposal.
In the Senate, Mitch McConnell has rammed through judge after judge, ensuring the legacy of the Trump Administration will long outlive the president. And in the executive branch, steely-eyed think tank alums and former corporate sector bureaucrats have donned their protective eyewear and taken a chainsaw to the federal code of regulations. For every one new regulation the Trump bureaucracy creates, a staggering 13 are repealed.
But there is one beast, colloquially called the pitbull of environmental laws, that even the Trump Administration has been loath to challenge directly — the Endangered Species Act (ESA).
Signed into law in 1973 by the most aggressively green president of the 20th century, Richard Nixon, the ESA was designed to equip the federal bureaucracy with the tools to stop the extinction of at-risk plants and animals in the United States.
The Department of the Interior uses a variety of terms to describe species that are under its magnifying glass for purposes of preservation. “Candidate” species are under consideration for official listing. “Threatened” status is assigned to species likely to become endangered. “Endangered” is the designation that unlocks the most regulatory power and is invoked when a species is in danger of extinction throughout all or a significant portion of the area it occupies. (RELATED: ‘Political Showmanship’: Interior Department Responds To Democrats’ Threats To Cut Salaries)
The Dunes Sagebrush Lizard is one of the hundreds of species that is currently holds “candidate” status. Found in Southeastern New Mexico and West Texas, the rare lizard has had its territory threatened by booming economic activity in the region, largely caused by oil and gas development. For nearly 30 years the lizard’s population status has carried with it the economic future of an entire community.
In contrast with the oligarchic Petro-states of the second and third world, most oil and gas producers in America are independent small- and medium-sized companies, and the year-over-year explosion in growth in that sector in Texas has led to opportunity for millions of middle class and poor people.
The shale revolution — fracking — has not only buoyed the entire American economy, but it has provided a level of energy security that national security experts have craved for generations. The current escalation of tensions with Iran would be significantly more troublesome if the specter of an oil and gas shortage loomed behind the diplomatic fracas. (RELATED: Bernie Sanders Pledges To Ban ‘Fracking’ If Elected President In 2020)
Uncertainty in the 2000s over the lizard’s status would eventually lead to Texas’s Comptroller of Public Accounts, Susan Combs, brokering an agreement with the Parks and Wildlife service to protect the lizard’s environment. This deal was scrapped in December 2018, and while a new plan awaits negotiation, environmental groups sued the Trump administration earlier this month to have the lizard listed.
These environmental groups, like the Center for Biological Diversity, devote enormous resources towards assessing the populations of target species and petitioning for their listing as a threatened or endangered species under the ESA. During Democratic administrations their efforts are largely focused towards advocacy and public pressure campaigns, whereas under Republican administrations groups like CBD pool resources to launch protracted legal battles with the intent of forcing government action.
Kathleen Hartnett White, the Director of the Armstrong Center for Energy and the Environment the Texas Public Policy Foundation has studied the implantation of the ESA for years, and says that the prioritization of singular species over job-rich industries is nothing new. She referenced a series of legal battles called the Owl Wars that dominated the Northwest for many years.
The Spotted Owl was listed as threatened under the Endangered Species Act in 1990, an action that crippled the logging industry in the Pacific Northwest. A Wall Street Journal article from 2011 detailed the consequences of that policy decision, just as advocates began calling for even more regulation to protect the owls.
“Despite a 90% cutback in harvesting on federal lands (which constitute 46% of Oregon and Washington combined), the population of spotted owls continues to decline, as do rural communities that once prospered across the Northwest. In some areas, spotted owls are vanishing at a rate of 9% per year, while on average the rate is 3%.”
The failed regulatory experiment wasn’t without consequences
“In the 1980s, before the owl was listed as threatened, nearly 200 sawmills dotted the state of Oregon, churning out eight billion board feet of federal timber a year. Today fewer than 80 mills process only 600 million board feet of federal timber. In Douglas County, for example, several mills dependent on federal timber have closed. Real unemployment in many Oregon counties exceeds 20%, double the national average.”
White calls the almost singular focus of some environmental advocates on endangered species protection over human flourishing “misanthropic,” and the deep bench of similarly ludicrous incidences like the spotted owl wars give weight to her claim. (RELATED: Gov’t-Funded Study Claims Illegal Pot Farms Are Poisoning Spotted Owls)
One of the worst fires in American history ravaged the community of Bastrop, Tex. in 2012. Just as the cleanup process began in earnest, however, a plane full of “biological monitors” descended on Bastrop and dictated the terms of the cleanup, all because of the overlap between the area consumed by the fire and the habitat of the endangered Houston Toad.
Their interference severely delayed recovery efforts and may have almost doubled the cost of the cleanup.
Jobs and fire recovery are one thing, but the overwhelming regulatory power of the ESA has even risked essential human resources. During the height of the California droughts several years ago there were attempts to distribute water resources by pumping water from other parts of the state in order to ensure statewide water supply. These efforts were blocked because the Delta Smelt, a tiny freshwater fish, had been prioritized over the people’s general welfare, worsening the water shortage for millions of Californians.
Most of the ESA battles of the past few decades have been fought over species on public lands that served an important human-oriented role like commerce or vital resources. In recent years, however, environmental groups have turned their attention to states with high proportion of private land, like Texas. The Department of the Interior hasn’t discouraged this new advocacy by articulating if the ESA is even applicable to private land in the first place.
This ambiguity has emboldened activist groups who see the government as an enemy on conservation efforts as opposed to an ally to be lobbied, as they did during the Bush administration. Lawsuits like the one over the Dunes Sagebrush Lizard are commonplace.
Environmental organizations have converged with other liberal advocacy groups, using lawfare against the Trump administration as a sign of their #Resistance. Groups like the Center for Biological Diversity use the courts as a fundraising tool, displaying prominently on their website the number of lawsuits they’ve filed against the Trump administration.
CBD’s number currently sits at a cool 143, displayed in large block text over a graphic of a smiling bear.