by Greg Walcher, E&E Legal Senior Policy Fellow
The Daily Sentinel
A good friend of mine hired a professional photographer, at great expense, to take pictures during a planned event. Afterward, when the finished pictures were delivered, virtually all of them were blurry, because the camera had been out of focus.
Laws are like that, too, when interpretation over a long period gets the whole purpose out of focus, leaving a blurry picture of what the law is. It’s common in government, and the poster child is the Endangered Species Act, passed in 1973 to stop the extinction of bald eagles, whooping cranes, and grizzly bears. The first endangered species list included 3 amphibians, 3 reptiles, 36 birds, 22 fish, and 14 mammals — a reasonable national goal that most people supported.
Almost all those original species are still listed, and the list has since grown to include 9 supposedly different toads, 20 different field mice, and 2,335 other species, subspecies and critters no one ever heard of. It’s a 173-page spreadsheet of birds, fish, plants, and animals in every corner of every state. No species is listed based on its current location, but instead is said to be endangered or threatened “throughout all or a significant portion of its historic range.” Hundreds have broad historic ranges such as entire river basins, coastlines, valleys, mountain chains, plains, and deserts. The historic ranges of listed species today include all terrestrial “ecoregions” in the Lower 48, all coastal zones and river basins, all of Alaska’s major regions, and all of Hawaii.
Everywhere in the U.S., there are species listed as threatened or endangered, though few people — even government officials — can explain the difference. That is one of the out-of-focus aspects of federal decisions that leave the issue blurry. Congress intended very significant differences in how “endangered” and “threatened” species are treated differently. But years ago, the government issued the “blanket rule,” requiring both categories to be treated with the same rules, restrictions, and enforcement. The first Trump Administration tried to re-establish the difference between threatened and endangered, but the Biden Administration reinstated the blanket rule, never part of the law itself. The new administration now proposes to return the original congressional intent, and the environmental lobby is apoplectic.
