Is the regulation executive order an obstacle to deregulation?

Last week, I was interviewed for a Greenwire story on what President Trump’s executive order requiring agencies to identify two regulations for repeal for every new one adopted means for the endangered species. Many Endangered Species Act regulations, like listing decisions, are mandatory and subject to statutory deadlines. So it’s not clear to what extent the executive order will affect those decisions.

But one area where the order could have a huge effect are delisting decisions. Although the Endangered Species Act requires federal bureaucrats to review each listed species every 5 years to determine whether it should be removed, they have been derelict in complying with this duty. What’s worse is that, when they do undertake this review—usually only after being sued—and the agency’s scientists determine that the species should be downlisted or delisted, they refuse to act on the recommendation. Instead, the species improperly remains on the list for years or decades and will only be taken off if someone is willing to incur the time and expense to sue the agency 3 or 4 times (to compel it to take each step in the process).

manatee_28psf29The manatee is a good example of this problem. The Service determined that this species should be downlisted a decade ago. But it has never acted on its own scientists’ determination. Five years ago, affected property owners petitioned the Service to have it carry out this decision. The Service ignored the petition, forcing the property owner to sue. Begrudgingly, the Service issued a required 90-day finding in response to the suit. But the follow-up 12-month finding never came. So the property owners had to sue again. To resolve the suit, the Service issued the finding and proposed to downlist the manatee. But, once again, it never followed through, forcing the property owners to sue—for the third time!

Clearly, something needs to be done to give the Service better incentives to comply with its obligations to review and timely downlist and delist species. The executive order could provide this incentive. As I explain in the Greenwire story:

While delistings are done via rules that impose some monitoring of recovered species, experts on the process predict that the president’s Office of Management and Budget (OMB) will look favorably on such regulations when it drafts guidance for implementing the order. “The decision to delist a species would likely be treated as a repeal of a regulation,” predicted Jonathan Wood, a staff attorney at the Pacific Legal Foundation, a property rights advocacy group. “I think if anything, [the executive order] will improve the incentives for the agencies to take seriously their obligation to review species that are on the list and get those off that no longer belong.”

The order would reward the Service for faithfully complying with its delisting obligations, by crediting it for the elimination of the regulatory costs previously imposed by the listing. The order imposes a regulatory cost budget on agencies and this is one way to effectively manage it without sacrificing environmental protection. It would also encourage them to remove unnecessarily burdensome regulations for species that have been downlisted to threatened.

This reform should be a welcome development not only for affected property owners, for whom a delisting or downlisting means fewer regulations and fewer threats from environmental groups, but also for listed species. There are only so many resources available for species conservation. Removing species from the list that shouldn’t be there would ensure that resources are diverted to those species that need it most.

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