Earth Protect Blog

The Center for Biological Diversity will file a legal challenge to an Obama administration policy, finalized today, that severely limits when a species qualifies for protection under the Endangered Species Act — a change that ignores both broad legal precedent and congressional intent. Under the Act a species qualifies for protection when it is “in danger of extinction in all or a significant of portion of its range.”

Both Congress and the courts have explained that the “significant portion of range” provision is vital for important conservation because it allows federal wildlife agencies to protect species before they are at risk of going extinct globally. But the newly finalized policy sharply restricts the use of this part of the Act, defining “significant” to mean that only when the loss of a part of a species’ range threatens the survival of the whole species would wildlife agencies protect that species under the Act.

The policy also restricts “range” to mean “current range” — ignoring the reality that most endangered species in the United States have suffered massive losses over the past and now cling to survival in only a small remnant of their historical home. As such the final policy defines “significant portion of its range” to make it superfluous: Only species at risk of extinction everywhere will now be protected.

“The policy finalized today eviscerates the key requirement that species need not be at risk of extinction everywhere before they can be protected,” said Brett Hartl, the Center’s endangered species policy director. “The policy absolutely undermines the spirit of the Endangered Species Act and will allow massive decline of our native wildlife along with the destruction of wildlife habitat.”

The approach outlined in the policy finalized today has already been rejected by multiple courts, including the 9th Circuit Court of Appeals, which concluded: “If, however, the effect of extinction throughout ‘a significant portion of its range’ is the threat of extinction everywhere, then the threat of extinction throughout ‘a significant portion of its range’ is equivalent to the threat of extinction throughout all its range. Because the statute already defines ‘endangered species’ as those that are ‘in danger of extinction throughout all ... of [their] range,’ the Secretary's interpretation of ‘a significant portion of its range’ has the effect of rendering the phrase superfluous. Such a redundant reading of a significant statutory phrase is unacceptable.”

“The Fish and Wildlife Service has long been criticized for only protecting species on the very brink of extinction, which makes recovery a difficult uphill slog,” said Hartl. “This policy would actually codify that approach, essentially saying: Let’s only protect these creatures when they’re in as desperate a state as possible.”

The idea that loss of historic range need not be considered when determining if a species is endangered in a significant portion of its range has been extensively criticized by scientists as a “shifting baseline,” whereby the history of species is ignored. A study published by the Center in the international journal Conservation Biology cited the Colorado River cutthroat trout as a case in point: The trout was denied protection even though Fish and Wildlife acknowledged it had been lost in 87 percent of its historic range, including the biggest and best streams, and continued to face many threats. A number of other species have similarly already been denied protection under the policy, including gray wolves and cactus ferruginous pygmy owls.

“This policy egregiously undermines both the precautionary nature of the Endangered Species Act and its mandate to protect the ecosystems endangered species depend on,” said Hartl. “There’s a real need to protect species before they’re in danger of going extinct everywhere, and this policy will make that nearly impossible.”