Legal Protections for Wildlife in Jeopardy as House Hosts Oversight Meeting

GOP-led Natural Resources Committee questions efficacy of Endangered Species Act and Marine Mammal Protection Act.

Republican members of the U.S. House Committee on Natural Resources took aim Wednesday at the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA), arguing both landmark statutes are ambiguous and reach beyond federal authority.

The GOP lawmakers described the oversight hearing as the beginning of a reexamination of federal permitting processes affiliated with the conservation laws. Wildlife advocates said the hearing sets the stage to weaken protections for biodiversity and could strip species of their protected status. 

Led by Rep. Harriet Hageman, a Republican of Wyoming, the Republicans were emboldened by a recent U.S. Supreme Court decision overturning the so-called Chevron doctrine requiring courts to defer to federal agencies’ reasonable interpretations of ambiguous statutes.

The lawmakers said that the Endangered Species and Marine Mammal Protection Acts had been manipulated to bar economic activity, and that they aim to return federal decision-making to states, tribes, local governments and private landowners. 

“There is no denying that, after half a century, both laws need improvement, and the committee intends to do just that,” Hageman said. “Changes to the statutes will significantly improve the regulatory process for both federal regulators and the regulated community.” 

The ESA, enacted in 1973, works to list and protect endangered species and prevent their extinction, while the MMPA, enacted the year before, prohibits the “take”— harassing, hunting, capturing, collecting or killing—of most marine mammals in U.S. waters or by U.S. citizens on the high seas. 

The hearing wasn’t Hageman’s, nor the committee’s, first time tackling the ESA. The Natural Resources Committee held two oversight hearings and three legislative hearings on the conservation law during Congress’ last session. Those hearings resulted in eight bills related to the ESA, three of which passed the House, two of which also passed the U.S. Senate. Both bills were vetoed by President Joe Biden. 

The U.S. Supreme Court has examined the ESA and found it extremely clear, said Daniel Rohlf, a wildlife law professor at Lewis and Clark Law School, referring to a 1978 landmark case that ruled that the Tennessee Valley Authority was in violation of the ESA in building a dam due to the discovery of the snail darter fish in the Little Tennessee River.

“The court emphasized that, quote, ‘The plain intent of Congress in enacting this statute was to halt and reverse the trend towards species extinction, whatever the cost,’ close quote,” Rohlf said. 

More than 90 percent of endangered species are on track to make progress toward recovery at the rate envisioned in their recovery plans, Rohlf said. But states and landowners often have a different timeline than federal agencies for when a species should be delisted, or lose its detailed protections from harms, like loss of habitat or predation. 

For example, the U.S. Fish and Wildlife Service determined that grizzly bears should remain classified as a threatened species under the ESA following delisting petitions. But senators from Idaho, Montana and Wyoming, where most of the nation’s grizzlies are, have introduced a bill that would delist the bear from ESA protections. 

Rep. Sarah Elfreth, a Democrat from Maryland, is wary of leaving stewardship and protection of vulnerable wildlife to the states. Just like clean air and clean water, Elfreth said, wildlife doesn’t tend to respect arbitrary political boundaries.  

“I’m not sure that a patchwork approach from the states would be the right solution,” Elfreth said. “I don’t think it would provide any kind of certainty for the business community either by going about it in that manner.” 

Paul Weiland, a partner at Nossaman LLC in Irvine, California, told the committee that for decades, regulated communities have contorted themselves to follow rules from the two acts that lack sufficient scientific research. 

Before becoming a partner at Nossaman, Weiland worked in the law and policy section in the Environment and Natural Resources Division of the U.S. Department of Justice. 

Weiland cited the National Marine Fisheries Service vessel speed rule as an example of the overreach permitted through the conservation laws. The 2008 rule imposes a speed limit of 10 knots on most vessels greater than 65 feet in length on the busy Eastern Seaboard to reduce collisions with the endangered North Atlantic right whales. 

In 2022, the agency proposed to expand the rule to smaller vessels, those between 35 and 65 feet in length, but withdrew the rule in January. Between 2008 and 2022, there were five right whale vessel strikes involving the smaller vessels, according to the Marine Mammal Commission. 

“The proposed rule exemplifies one circumstance in which the precautionary principle can result in an absurd outcome, that is when the regulation of a vast amount of human activity that causes no harm occurs for the purpose of curbing a minuscule amount of human activity that causes harm,” Weiland said. 

The committee’s Republican members wrote in a memo ahead of the oversight hearing that while the ESA and MMPA are well-intentioned, the laws have been exploited by the federal government and radical environmental organizations. 

Rep. Lauren Boebert of Colorado echoed that sentiment Wednesday. 

“With the help of the Trump administration, both in his first term and now here, I’m looking forward to even more help,” Boebert said. “We’re working to ensure that the federal agencies are held accountable for their regulatory overreach and reform these statutes so they are implemented as Congress intended.” 

Many of the federal workers tasked with carrying out duties of these laws have been fired in recent weeks as the Department of Government Efficiency, an unauthorized government entity  run by Tesla CEO and tech billionaire Elon Musk, continued to slash federal programs and employees. 

The firings, coupled with Congress’ underfunding of ESA programs at federal agencies for years, have led to conflicts with endangered species listings, permitting and consultations regarding whether developments impact an endangered species or its designated habitat, said Rep. Val Hoyle, an Oregon Democrat. 

“The recent Trump administration actions, firing tens of thousands of federal workers without any strategic analysis as to the effect on agencies to do consultation, approve permits and recover species is irresponsible,” Hoyle said Wednesday. “[It] is another example of undermining the ability of government to do the work, then blaming federal agencies and those workers for not getting the job done.” 

Cover photo:  Rep. Harriet Hageman (R-Wyo.) leads an oversight hearing on the Marine Mammal Protection Act and the Endangered Species Act with a subcommittee of the U.S. House Committee on Natural Resources on Wednesday in Washington, D.C. Credit: U.S. House Committee on Natural Resources