When the Biden Administration proposed updating the Endangered Species Act last month, many in the conservation community felt a sense of relief. If finalized, the new rules would replace some of the worst regulations the Trump administration proposed in 2019 that undermine the law. The new regulations would make it easier for US Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service, the two agencies tasked with administering the ESA, to save habitat and protect imperiled species. 

However, those two agencies stopped short of fully revoking all of the Trump administration's policies. In doing so, the updates failed to meet the high hopes conservation groups had early on for the Biden administration’s conservation ambitions. Some organizations, like the Center for Biological Diversity, Earthjustice, and Defenders of Wildlife, say the newly proposed updates need to go further in strengthening the Endangered Species Act for the law to live up to its full potential. A coalition of groups, including the Sierra Club, sued the federal government in 2019 to cancel the Trump policies. A federal court refused to erase them altogether, leaving the challenged regulations in place while the Biden administration amended the rules. 

"What we were advocating for was a full rescission. Then we'd go back to the original regulations," said Kristen Boyles, a staff attorney with Earthjustice, the lead plaintiff in the lawsuit. "That's not what [the Biden administration] did. They rescinded some. They amended some. They left some alone."

Under the newly proposed rules, threatened species managed by USFWS would again automatically receive the same protections meant to keep endangered species from harm. Wildlife agencies would be required to only review the science when making listing decisions, without consideration of economic factors, as Congress originally intended. The scope of the phrase “foreseeable future” would be amended so that long-term threats like climate change could be factored into risk assessments. And there would be fewer obstacles to designating critical habitat outside a species' current range, a key tool in fostering recovery as habitat loss is the number one driver of extinctions, says Jane Davenport, a senior attorney at Defenders of Wildlife.

But there are still policies in place that conservationists want reversed. Most of them are related to the consultation process between federal agencies around projects, like a highway or logging, sited near areas where listed species live. One such regulation severely undercuts critical habitat protections. The policy says a development project must affect critical habitat “as a whole” before alternative projects are considered. This would protect a species with a small range because a major infrastructure project would likely destroy its entire area, and thus it would be hard to approve such development. Not so for species with large ranges, like northern spotted owls and gray wolves. There would never be an instance where habitat was destroyed as a whole for a species whose range includes hundreds, thousands, or even millions of acres. 

"The northern spotted owl has over 9 million acres of critical habitat, so no matter how big a clear cut of old-growth forest is, it's never going to impact all 9 million acres of that critical habitat," said Noah Greenwald, the endangered species director at the Center for Biological Diversity "It really just perpetuates that death by thousand cuts scenario for threatened and endangered species, and the Biden administration changes just don't even touch that." 

Another missed opportunity, conservationists say, was the chance to update the definition of "environmental baseline," a term used to describe the habitat of a listed species before federal agencies begin a project. Agencies are supposed to evaluate whether their activities jeopardize a species’ survival and recovery. The Biden administration decided to keep the 2019 rule that allows officials to overlook the cumulative effects of past decisions for ongoing projects. 

Dams in the Pacific Northwest, for example, have pushed salmon and trout runs to the brink of extinction. When a federal agency is looking to extend a dam’s operating license or approve a new dam operating plan, its consultation with the wildlife agency shouldn’t ignore those past effects on the species’ biological condition. The Trump rule that has been left in place allows them to do just that, Davenport says, which removes altogether the consideration that the dams drove these species to the brink of extinction in the first place. 

Finally, conservation groups warn the Biden administration has retained a 2019 rule that makes any mitigation measures intended to avoid or offset a project’s adverse effects non-binding and unenforceable at a time when biodiversity loss is accelerating at a record pace. Extinction rates are at least 100 times what they were before the industrial revolution. And in the US, more than 1,600 species are listed as threatened or endangered. For the Endangered Species Act to continue to work, 50 years after it became law, it must be overhauled, not incrementally improved upon, the groups say. 

To ensure that happens, they say that the Biden administration must revoke all of the Trump policies, and the US Fish and Wildlife Service and National Marine Fisheries need to have more funding. They should also be able to act freely, without the interference of special interests whose primary goals are contrary to saving endangered plants and animals. In many cases, like with the Mexican wolf, for example, recovery plans aren't being followed because of opposition from communities hostile to having wolves on the landscape. 

Conservation groups are asking their members and supporters to weigh in on the proposals during the 60-day comment period, which ends August 21st.

"US Fish and Wildlife Service is just badly broken. It's captured by special interests, and I'd like to see reform in the agency and new leadership that believes in following the science and adhering to the act’s purposes," said Greenwald. "An agency that is encouraged and allowed to make decisions based on best available science, like the law requires, is really needed. The Biden administration is not that, unfortunately."