Re-Defining What is Foreseeable: Trump’s Near-Sighted Interpretation of the Endangered Species Act

Abstract

Although President Trump saw few prominent legislative accomplishments, his Administration impacted the country in ways sure to outlast his one term in office. From 2017 to 2020, the Republican controlled Senate confirmed conservative judicial appointments en masse. Meanwhile, the agencies within the Executive branch undertook considerable efforts to reshape federal regulatory policy on an array of fronts. Nowhere is this more pronounced than in the field of environmental law. The Trump appointees not only rolled back the regulatory efforts of the Obama Administration, but also went after some of the hallmark laws of the environmental movement in the United States, including the Endangered Species Act (ESA). Measured by the metric of how many species it has preserved, the ESA is one of the most successful pieces of conservation legislation in American history. The ESA has historically held bipartisan support, but developers and the fossil fuel companies have pressed Republican lawmakers to ease some of the Act’s protections. This note will begin by providing background on the ESA and discussing the current state of the law vis-a-vi the climate crisis. From there, this note will focus on one of the Trump Administration’s revisions to regulations which govern the listing of new threatened or endangered species under Section 4 of the Act. Next, this note will discuss, in the event that the rule change is upheld, the potential implications regarding the future listing of species whose primary threat is climate change. Lastly, this note will explore the legal arguments against the rule change, specifically that it does not warrant deference under the Chevron Doctrine.