by Greg Walcher, E&E Legal Senior Policy Fellow
The Daily Sentinel
In the 1950 movie version of Grimm’s Fairy Tale, the cruel stepmother scolds Cinderella, “You clumsy little fool — clean that up!” But of course, it was the stepmother, not Cinderella, who made the mess. Sometimes it seems like the world is full of people who expect others to clean up their messes.
It is a recurring theme among critics of federal agencies, which often regulate and even fine others for environmental damage, but rarely admit the role they themselves played in creating the problem. A lawsuit against the U.S. Fish and Wildlife Service (USFWS), filed by the Rocky Mountain Elk Foundation and the Property and Environment Research Center (PERC) has again focused attention on an agency blaming everyone but itself.
The suit accuses USFWS of impairing the recovery of threatened and endangered species by insisting on a process that ignores science and hinders habitat restoration. The Endangered Species Act of 1973 created two distinct lists for protection. Species in imminent danger of extinction throughout all or most of their range were to be listed as “endangered,” and those that might some day become endangered were to be listed as “threatened.” The regulatory process prescribed by Congress was completely different for the two lists. Killing any endangered species was prohibited, along with any action that degrades their habitat. Threatened species, though, could be “taken” and their habitat altered in certain circumstances, to be defined by a “4(d) rule.” USFWS was to design science-based regulations tailored to individual species, recognizing the coexisting human economic activity, and determine acceptable levels of “take.”
Before the ink was dry on that law, USFWS decided that was too complicated, and instead adopted what it called the “blanket 4(d) rule” bypassing that prescribed process, allowing it to ignore science and species-specific considerations, and simply enforce “threatened” and “endangered” species listings the same way. There has been almost no distinction between the two categories for 50 years, and the result is one of the most dismal failures in the history of conservation. By the end of 2023, more than 2,300 species had been listed as threatened or endangered and only 1.8% de-listed. Seventy-one species are now considered “recovered” but that includes eight that it turned out were listed by mistake, 13 that further research proved were never separate species and 11 were extinct. Only half of the species listed even have recovery plans, but all have federal protection and people can go to jail for killing them, even accidentally, or altering their habitat without permission.
