Loyola University Chicago School of Law, JD, 2025
On January 20, 2021, his first day in office, President Biden passed Executive Order 13990, directing all executive departments and agencies to “immediately review” existing regulations, orders, policies, etc. that were “promulgated, issued, or adopted” by the previous administration between January 20, 2017 and January 20, 2021 and identify those that are or may be inconsistent with “important national objectives” regarding protecting public health, the environment, and restoring science. The order further directs agency heads to review such policies and consider whether to take any agency actions to fully restore and enforce important national objectives. A key focus of this order was to strengthen and fully enforce the Endangered Species Act, emphasizing the importance of conservation efforts and wildlife protection.
What is the Endangered Species Act?
Originally implemented in 1973, the Endangered Species Act (ESA) is a key U.S. federal law aimed at safeguarding endangered and threatened plant and animal species, as well as their habitats. The ESA places a mandate on federal agencies, compelling them to take measures to prevent any actions they authorize, fund, or undertake from jeopardizing listed species or their habitats. Scientists have praised the effectiveness of the ESA, stating that without it, several species would now have been extinct, such as the humpback whale, the peregrine falcon, and the Florida manatee, just to name a few. On June 4, 2021, in direct response to Biden’s Executive Order, the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and the National Marine Fisheries Service (NMFS) proposed a plan to strengthen and improve the ESA, which had been significantly weakened under Trump.
The Endangered Species Act under the Trump administration
In 2019, there were notable alterations to the implementation of the ESA under the Trump administration—all of which allowed “new mining, oil and gas drilling, and development in areas where protected species live.” Specifically, the ESA changed course and allowed economic considerations to be factored into decisions about categorizing species as either “endangered,” the highest level of protection, or “threatened,” a lower level of protection. Critics of the Trump administration’s changes to the ESA say the new rules would reverse years of progress, eliminating any consideration of climate change on the health of wildlife and their habitats, surely jeopardizing at-risk species. Overall, the changes to the ESA during the Trump administration placed more of an emphasis on the expansion of big business and allowed economic decisions to override the protection of endangered and threatened plants and animals. These changes, however, are on track for reversal next year.
Biden’s efforts to restore the Endangered Species Act
As stated previously, the Biden administration aims to reverse these harmful policies through Executive Order 13990. The FWS and NMFS proposed several changes, including: reinstating a base level of protection for all endangered and threatened species, and ensuring that the listing of endangered and threatened animals is done so based purely on science, not on economic factors. Officials in the Biden administration say the goal is to bring the ESA “into alignment with its original intent and purpose” of protecting threatened and endangered species. The modifications to the ESA are slated to be finalized next year.
While many environmentalist groups label this a “win,” others, however, are not as impressed. McCrystie Adams, the managing attorney of conservation law for the Defenders of Wildlife, says the changes to the ESA are not as far-reaching as they should be—its language still contains notable gaps that create loopholes for companies to continue practices that greatly threaten endangered plants and animals. Critics also slammed Biden for taking more than two years to act on some of the Trump-era policy changes, especially because, as experts have said, we are in the “midst of an extinction crisis.”
The Endangered Species Act: reflecting on successes, failures, and the urgent need for action
Since the inception of the ESA, more than 100 species of plants and animals have been delisted due to recovery or improved conservation status. While this is a big win for species formerly in peril, this month, the FWS is delisting 21 species from the ESA that could not be saved and are now considered extinct. FWS Director, Martha Williams stated that, “federal protection came too late to reverse these species’ decline.”
The original intent of the ESA was to use the best available science and effective public policy to identify threatened and endangered species, protect their environment, and allow them the conditions and protections to thrive and recover. Data from the Department of the Interior indicates that the ESA has been extremely effective in its mission, and is credited with saving 99 percent of listed species from extinction. The Trump administration’s efforts to interject business and economics into decisions about protected species did nothing to advance the mission of the ESA. The steps taken by the Biden administration are essential for assuring that big business does not drive ESA policy. Environmentalists, therefore, have a right to be frustrated with the two-year delay in re-implementing these pre-Trump policies. If we have learned one thing from the recent delisting of species due to extinction, quick action is necessary for safeguarding species teetering on the brink of extinction. Two years was two years too long.