Have you heard of permitting reform?
It’s one of the hottest topics in the United States Congress, and four influential Senators (Senators Capito of West Virginia, Lee of Utah, Whitehouse of Rhode Island, and Heinrich of New Mexico) recently unveiled a new permitting reform bill aimed at speeding up industrial energy projects of all types, from oil and gas pipelines to wind and solar facilities. Permitting reform changes the rules and timelines that govern how large projects receive government approval.
Unfortunately, the new proposal includes major changes to the Endangered Species Act (ESA), and those changes raise an important question:
What does permitting reform have to do with endangered species recovery?
That question matters because the Endangered Species Act (ESA) was not enacted to facilitate industry projects. The ESA’s purpose is to stop extinction and recover imperiled wildlife and plants. At the time the ESA was signed into law, over a hundred species were nearly lost to us forever – the gray wolf, key deer, California condor, Apache trout, and Florida panther would be gone without ESA protections.
If Congress wants to consider changes to the ESA, those discussions should focus on what will best help species recover, not on what speeds up permitting for industrial energy.
But a new Senate bill inserts major ESA amendments into the broader permitting reform package, evaluating wildlife protections through the lens of industrial energy permitting reform – and making matters worse for both.
One Problem with the Senate Permitting Bill: State-by-State ESA Consultation
One of the Senate permitting bill’s most troubling sections shifts responsibility for ESA consultation – the review process for whether an industry project will push a species closer to extinction – from the federal government to individual state governments.
And the bill includes a contradiction that is hard to ignore.
For electricity transmission-related permits, the new Senate bill assumes that a centralized federal process is more efficient than navigating numerous different state systems. Yet for endangered species-related permits, it adopts the opposite approach, dispersing authority among the states.
The Endangered Species Act currently operates under a nationwide framework because wildlife and ecosystems do not recognize political boundaries.
Consider the rufa red knot, a shorebird famous for one of the longest migrations on Earth. During its annual journey, the species travels thousands of miles through numerous states and ecosystems. Its survival depends on a connected chain of habitats working together across its range.
A patchwork of state-by-state permitting decisions does not make sense on a migration map.
Different procedures, standards, staffing capacity, resources, and interpretations from state to state would lead to inconsistent protections for the same species. A decision by one state to allow an industry project to harm the rufa red knot could mean that people in another state will no longer see these incredible birds come to their shores.
Conservation outcomes should not depend on which state issues a permit affecting the species.
For our interconnected ecosystems and the species that rely on them, conservation works best when decisions are coordinated across their entire range.
Another Problem: Weakening Scientific Standards
The proposal also includes changes that would weaken science’s role in ESA decision-making.
At first glance, the changes may sound technical. In practice, however, they would significantly increase the amount of evidence needed before protective action can occur.
The new language would constrain wildlife agencies’ ability to account for uncertainty, future threats, and reasonably foreseeable risks when making decisions.
That is a problem because conservation rarely operates with perfect information.
Scientists and wildlife managers are often asked to make decisions while evidence is still emerging. They evaluate population trends, habitat loss, climate impacts, disease threats, and other risks before every possible question has been definitively answered.
Waiting for absolute certainty can mean waiting until it is too late.
The southern sea otter demonstrates why science cannot operate on a standard of absolute certainty. Wildlife managers must assess risks such as oil spills, disease outbreaks, harmful algal blooms, and other threats as they emerge. The ESA’s success has come from using the best available science to anticipate risk, not from waiting until extinction is imminent.
The proposed changes would make it harder to protect species and habitats until more damage has already occurred, when conservation efforts are often more costly and less effective.
The ESA Is Not the Permitting Bottleneck
The ESA only applies when industry projects may affect federally protected species or critical habitat. By definition, the ESA comes up only when an industry project may affect species already rare enough to warrant federal protection.
Even when ESA consultation is required, it is typically a relatively small part of the overall permitting process. Around 95% of ESA consultations are “informal,” and these are completed in about two weeks. For the around 5% that are “formal,” ESA consultation is about two months – and the goal is to ensure that the project doesn’t wipe a species off the planet.
Weakening endangered species protections will not address permitting issues that raise energy costs. It’s a lose-lose for wildlife and energy affordability.
Leave the ESA out of Permitting Reform
Congress does not need to rewrite any part of the ESA to advance permitting reform.
The Energy Bills Relief Act provides one example. The legislation is cosponsored by more than 160 congressional lawmakers and has attracted broad support of community organizations, environmental experts and energy industry stakeholders. Importantly, the bill seeks to address permitting and energy issues without amending the ESA or other bedrock environmental protections.
That approach recognizes an important reality: permitting reform and endangered species recovery are not the same policy challenge. The challenges for energy affordability in the United States, from transmission bottlenecks to interconnection delays and rising infrastructure costs, are distinct from endangered species protections.
The ESA should be judged by a simple standard: does it help recover species and prevent extinction?
In its over 50-year history, 99% of species protected by the ESA are still with us today – an incredible success rate for stopping extinction. The bald eagle has returned to skies across the nation, humpback whale populations have rebounded in our oceans, and the Florida panther persists today because protections helped pull it back from the brink.
These successes happened because the ESA places the long-term survival and recovery of species ahead of short-term pressures that could drive them toward extinction.
There may be ways to improve ESA implementation and strengthen recovery efforts, but those discussions deserve their own public process, informed by scientists, wildlife managers, Tribes, landowners, conservationists, and other stakeholders. The question should not be whether changing the ESA speeds up permitting. The question should be whether it helps recover species and prevent extinction.
Congress should leave the Endangered Species Act out of any permitting reform deal and have a separate conversation about what America’s wildlife truly needs: stronger recovery efforts, sound science, and a continued commitment to preventing extinction.
