Yes, there’s a difference between “endangered” and “threatened” species
Federal district court tells FWS its discretion to decide on the less protected designation has limits
A recent ruling from the federal District Court in DC provides a vital lesson that the US Fish and Wildlife Service would do well to heed: the agency has limited discretion to search out that species are threatened fairly than endangered.
Under the Endangered Species Act (ESA), species will be listed as either endangered (“at risk of extinction throughout all or a significant slice of its range”) or threatened (not now endangered but “more likely to develop into an endangered species throughout the foreseeable future”). The designation determines the degree of management flexibility, especially for animal species (plants get less protection altogether, but that’s a story for one more time). Endangered animals are protected against “take,” broadly defined (plants get less protection, but that’s a subject for one more day), and is probably not the topic of economic activity. For threatened species, section 4(d) of the ESA allows the listing agency to find out the degree to which those protections apply. That implies that endangered species usually tend to get in the way in which of economic activity than threatened ones. So there’s a specific amount of pressure on the listing agencies to designate species as threatened if possible, and sometimes they succumb to that pressure beyond what the statute permits.
This problem shouldn’t be unique to the present administration. In 2013, the Obama administration proposed to list the Northern long-eared bat as an endangered species. The chief threat to the bat is white nose syndrome, a disease that has spread rapidly and decimated bat populations because it was first described in 2006. FWS found that bat populations within the northeastern portion of the range had declined by 96% attributable to white nose syndrome (WNS). The agency concluded that the disease is already present in about 60% of the bat’s range, including the core of that range. FWS acknowledged that there isn’t a known solution to slow the spread of the disease, which it expected to increase across your entire range inside a couple of years, causing similar population declines. Nonetheless, it ultimately listed the bat in 2015 as threatened, fairly than endangered.
Judge Sullivan remanded the listing decision, concluding that FWS had erred in multiple respects.
Judge Sullivan rejected FWS’s conclusion that because 40% of the range was not yet affected by WNS, and populations outside WNS areas were currently stable, the bat was not yet endangered. Judge Sullivan noted that the western portions of the bat’s range, where WNS has not yet spread, had all the time been more sparsely populated, and a big portion of the bats there may be summer residents who spend their winters in areas subject to WNS. FWS did not articulate a rational explanation for why, even when WNS never affected the western range, those populations would could be sufficient to qualify the species as an entire as threatened fairly than endangered.
Although Judge Sullivan didn’t emphasize it, it seems critical that FWS expects the bat’s entire range to be subject to WNS inside 13 years or less. Since there isn’t a solution to prevent the spread of disease, that short delay doesn’t perceptibly lessen the danger of extinction. It merely extends the timeline. FWS has confused those two in other cases as well, including that of the polar bear. The main target needs to be on the predictability of threats affecting the species, and subsequently on the necessity to manage threats. There could be little point in waiting until WNS actually hits the remaining of the range (or within the case of the polar bear, ice cover shrinks further) to extend protections for the species, when it’s known now to a high degree of certainty that the disease will spread (or the ice will recede). Only by listing it as endangered now and imposing the complete protections of the law can the species be conserved.
Judge Sullivan also found that FWS had failed to contemplate the potential cumulative impacts of other stressors, resembling tree removal, together with WNS; that it had improperly failed to offer sufficient notice of and opportunity to comment on its application of its understanding of the definition of “threatened” to the bat; and that FWS cannot decline to contemplate whether the species is endangered in a significant slice of its range just because it has decided the species as an entire is threatened.
FWS did get one win — applying Skidmore deference, Judge Sullivan decided that the agency’s determination, first announced within the context of the polar bear listing, that endangered status applies only to species “on the point of extinction” was persuasive and subsequently valid.
Does any of this actually matter? What difference would endangered versus threatened listing make, on condition that a disease with no known control is the foremost threat? It seems that the difference may be substantial.
An endangered listing is more protective, or perhaps more accurately, is protective in ways which are less subject to agency manipulation under political pressure. Endangered (animal) species are protected against take, including unintentional harm or harassment, unless FWS issues an incidental take permit for the precise proposed activity. Permit issuance requires affirmative findings that the precise activity proposed is not going to jeopardize the species’ continued existence and that its impacts can be minimized and mitigated to the utmost extent practicable. In contrast, for threatened species FWS can issue what is known as a 4(d) rule (since it is allowed by ESA section 4(d)), allowing whole categories of activity with none individualized review.
Indeed, FWS issued a strikingly broad 4(d) rule for the bat, authorizing all types of incidental take outside areas affected by WNS, and all incidental take inside WNS areas with the minor exceptions of take throughout the caves during which the bats hibernate and cutting of trees known to support maternity roosting or very near known maternity trees. With that rule in effect, the listing can have almost no impact on economic activity throughout the bat’s extensive range. It also will do almost nothing to conserve the bat. If the bat should be listed as endangered, nonetheless, as Judge Sullivan’s opinion strongly suggests, there can’t be a 4(d) rule, and activities throughout the bat’s range that may cause incidental take might want to undergo individualized permit review. That’s more likely to make a noticeable difference each to the quantity of logging and other development permitted, and to the bat’s population status.
The difference between endangered and threatened listings could also be much more essential now, given the Trump administration’s changes to the ESA regulations. Prior to those changes, FWS gave all threatened species the complete protection of the ESA’s take provision. Now (pending the consequence of ongoing litigation), threatened species will get only any protections announced in a 4(d) rule. That makes it all of the more critical that the road between threatened and endangered species be drawn in a defensible, and comprehensible, location.
Judge Sullivan’s opinion is a superb step toward ensuring that FWS doesn’t entirely erase the road, and in so doing effectively erase key ESA protections for species that need them.