The Endangered Species Act (“ESA”) has seen a 99% success rate in protecting listed species since its inception in 1973. After celebrating its 52nd anniversary this year, there are diverging views about how to continue to advance this success while developing efficiencies in the decision-making process. Most recently, the US Fish and Wildlife Service (“USFWS”) published four proposed rulemakings in quick succession that generated thousands of comments from the public, zoo and animal foundations, and other interested parties. The four proposed rules specifically relate to listing and delisting decisions, interagency cooperation and consultation, allowance of economic factors in decision-making, threatened species protection, and critical habitat exclusions. The comment deadline for all four proposed rules was December 22, 2025, despite requests from multiple organizations for an extension of the comment period to March 2026. Over 300,000 comments were received on each proposed rule prior to the deadline.
Proposed Changes to the listing, delisting, and critical habitat provisions under 50 CFR Part 424
USFWS proposed to restore the 2019 regulatory framework governing listing, delisting and critical habitat determinations. Reverting to the 2019 framework allows economic impacts to carry weight in decision-making. For example, one of the revisions removes the phrase “without reference to possible economic or other impacts of such determination” when making classification determinations. Conservationists and advocates of the ESA argued that this will cause the scales to inappropriately tip in favor of political and economic considerations at the expense of threatened and endangered species.
However, industrial stakeholders support the notion of a transparent and holistic decision-making process that better aligns with the statutory text. For example, the Western Energy Alliance (“WEA”), which represents major natural oil and gas companies in the West, commented that Section 4(b)(1) allows the Secretary to consider “commercial data” which accounts for “data that could be considered ‘economic’ in nature.” WEA also commented that USFWS should be able “to consider and inform the public of economic or other impacts of designation.”
The proposed rule also revises the meaning of “foreseeable future” under Section 424.11(d) which is used to determine the time frame during which species are likely to become extinct. The 2019 framework limits the scope of “foreseeable future,” explaining that the “foreseeable future extends only so far into the future as USFWS can reasonably determine that both the future threats and the species’ responses to those threats are likely.” Conservationist organizations raised concern that this could heighten the evidentiary burden to establish the potential impacts of long-term risks (like climate change and habitat fragmentation) on species.
On the other hand, industrial stakeholders find that the 2019 definition of “foreseeable future” better aligns with the statutory text and avoids speculative projections of threats to species and their impacts. WEA argued that Congress established temporal guardrails on listing determinations and that the 2024 framework eroded these limits. The industry perspective is that the 2024 rule implied that a potential future threat, or an uncertain response to a future threat alone sufficed to justify a listing. This created uncertainty and undermined the predictability of listing decisions.
Another proposed change is the prioritization of occupied over unoccupied areas for critical habitat designation. Unoccupied areas will only be designated as critical habitat if 1) limiting the designation to occupied areas results in inadequate conservation of the species, and 2) there is reasonable certainty the unoccupied area will conserve the species and the area has a biological feature conducive to the species’ conservation. Conservationists raised that this may be detrimental to species whose long-term survival depends on geographical expansion into unoccupied habitats. However, stakeholders in the energy industry argued that under the 2024 framework, unoccupied areas were considered without a clear demonstration that occupied areas were insufficient or that additional areas were essential for conservation. This created uncertainty and complicated project planning. To many industry players, the 2024 rule also raised a transparency issue as project proponents questioned why some unoccupied areas, including areas with existing infrastructure and active operations, might be designated.
Proposed changes to interagency cooperation provisions under 50 CFR Part 402
Finding that the 2019 consultation framework aligns with the decision in Loper Bright Enterprises v. Raimondo (overturning Chevron), USFWS jointly proposed reinstating the 2019 definitions of “environmental baseline” and “reasonably certain to occur” under Section 402.02. Environmental baseline refers to the condition of the species at the time of consultation and the term “reasonably certain to occur” relates to the probability of the effects of agency action. The 2019 regulatory framework’s definition of “reasonably certain to occur” incorporates a proximate cause analysis to help “determine whether a consequence is appropriately attributable to the proposed action.” The proximate cause analysis dictates that a consequence cannot be attributed to agency action when the agency does not have the authority to prevent it.
Conservationists argued that this will exclude predictable harm from the definition of “effects of the action” in instances where threats outside the agency’s authority will also contribute to the harm. For example, a proximate cause analysis might determine that the effects of agency action upon a species already stressed by climate change need not be considered in consultation because the agency action would not have the same impact on a healthier population. However, major stakeholders in the electric power and oil and gas sectors commented that the proposed rule clarifies the definition of “effects of the action” and provides USFWS with a workable “but for” and “reasonably certain to occur” standard. A proximate cause analytical framework allows USFWS to focus on substantive effects of agency action in lieu of categorization disputes.
USFWS also proposed removing the 2024 offset provisions from “reasonable and prudent measures” (RPMs). RPMs are measures that make up for incidental takes. Agencies are required to implement measures to avoid or reduce the impact of an incidental take.
The 2024 offset provisions under Section 402.14(i)(2) provide that RPMs “may include measures implemented inside or outside of the action area that . . . offset the impact of incidental take.” The offset provisions effectively established a compensatory mitigation policy, the removal of which conservationists argue will result in more severe impacts on species when an incidental take occurs.
Conservationists argued that offsets, or compensatory mitigation, allowed industry and biodiversity to coexist while industry players offset the effects of their activities on biodiversity while participating in the biodiversity offset market. However, considering the Loper Bright decision, stakeholders in the sustainable energy industry argued that the 2024 offset provisions amounted to an impermissible reading of Section 7 which unlike Section 10, does not explicitly mention (or even imply) a compensatory mitigation requirement. Sustainable energy stakeholders also argued that the offset provisions created uncertainty by potentially requiring industry to expand beyond established minimization concepts.
Changes related to threatened species protections under 50 CFR Part 17, Section 4(d)
USFWS is proposing eliminating the blanket option and implementing a species-specific framework for each threatened species. Again, USFWS found that this interpretation of the ESA aligns with the decision in Loper Bright. The proposed species-specific framework requires the consideration of both conservation and economic impacts.
Section 9 of the ESA automatically protects endangered species and prohibits certain actions including those that result in a take of endangered species. Under the blanket rule, species that were newly listed as threatened species automatically received the same Section 9 protections as endangered species. Conservationists argued that although USFWS proposes a framework tailored specifically to each threatened species, removing the blanket rule increases USFWS’ workload and may leave newly listed species unprotected until they are near extinction while the USFWS draft and promulgate species-specific regulations.
However, energy industry representatives commented that the blanket rule approach to conservation taxes both USFWS and regulated entities unnecessarily in the long term. Although the blanket rule obviates the need to create species-specific rules, it requires UFSWS to administer the ESA to threatened species as it does to endangered species. For example, the Energy and Wildlife Action Coalition (“EWAC”), whose members include renewable energy producers, highlighted that USFWS has prepared and processed multiple habitat conservation plans (HCPs) for a number of threatened species. EWAC argued that the proposed rule would require a species-specific rule before an HCP is even necessary, and if such a rule exists, the HCP could focus on a narrower range of actions than would otherwise constitute take under the blanket rule.
Industry stakeholders also argued that species-specific rules would further conservation efforts and reduce regulatory burdens by focusing USFWS resources on the particular threats facing a species. According to EWAC, the National Marine Fisheries Service (NMFS) demonstrates successful implementation of this approach. The NMFS has never used a blanket rule, yet it has achieved a recovery rate nearly three times higher than the USFWS.
USFWS has, however, highlighted in the proposed rule that there would be no immediate changes to protections for currently listed threatened species that are covered by the blanket rule.
Proposed changes that expand circumstances that justify “critical habitat” exclusions under 50 CFR Part 17, Section 4(b)(2)
Section 4(b)(2) of the ESA requires the Secretary to weigh the benefits of excluding an area from critical habitat designation against the benefits of including it. The Secretary is required to consider economic impacts, national security impacts, and any other relevant impacts in conducting this “exclusion analysis.”
USFWS is reinstating its 2020 rule to provide certainty to landowners and project proponents. The 2020 rule seeks to provide clarity by explaining what constitutes economic impacts in the exclusion analysis and providing categories of “other relevant impacts” that could be considered. Under the rule, economic impacts include the economy of a particular area, productivity, jobs, and any opportunity costs arising from the critical habitat designation.
Conservationists argue that the 2020 framework expands the circumstances under which areas are excluded from critical habitat designation and that critical habitat designation has been the ESA’s most effective tool with endangered species in such habitats recovering at more than twice the rate at which species without such habitats recover.
On the other hand, stakeholders in the renewable energy industry argued that the 2020 rule provides certainty and transparency to project proponents. The industry perspective is that the 2020 rule allows USFWS to engage landowners and project proponents at the proposed designation stage which reduces uncertainty and avoids surprise designations. Industry stakeholders argue that regulated entities should have the opportunity to submit comments detailing the economic impacts of a proposed designation. Such an opportunity allows USFWS to consider all the relevant factors that warrant an exclusion and ensures transparency within the designation process.
Finally, the 2020 rule differs from the previous 2016 policy with respect to federal lands exclusions. Under the previous policy, federal lands were generally not excluded from critical habitat designation. Under the 2020 rule, USFWS “will consider the avoidance of the administrative or transactional costs associated with the [Section 7] consultation process” as a benefit to excluding federal lands from critical habitat designation. Conservationists argued federal lands to be the most important habitat for listed species and that excluding such lands based on economic considerations undermines a key source of protected habitat for threatened and endangered species. However, energy industry stakeholders highlighted the impact that federal land designation has on non-federal entities. For example, EWAC commented that many energy generation, distribution, and transmission facilities operate or plan to operate on federal lands, and critical habitat designation over those lands would result in significant implications on costs and project timelines. Industry stakeholders commended USFWS’ effort to consider the effects of critical habitat designation on project proponents using federal lands.
Conclusion
The proposed rules form a part of the regulatory tug of war that has been ongoing for over 15 years. For the most part, the proposed rules undo Biden-era ESA regulations and reinstate the regulatory framework under the previous Trump Administration. All four proposed rules cite and aim to achieve the goals set forth in the January 20, 2025, Executive Order, “Unleashing American Energy.” This EO directed all departments and agencies “to identify those agency actions that impose an undue burden on the identification, development, or use of domestic energy resources.” The proposed rules, however, engendered comments from various stakeholders that demonstrate the tension between ESA advocacy and industrial development, particularly in the energy sector. Final rules arising from the proposed revisions will likely face judicial challenge. Additional updates will be provided as the rulemaking develops.