The Endangered Species Act[1] (ESA) is a landmark piece of legislation that protects wildlife by categorizing species based on how threatened they are to become extinct.[2] Species that qualify are listed as endangered or threatened and receive statutory and regulatory protections, such as having their habitat designated as protected and prohibiting hunting of the species.[3] Naturally, one would assume that if a species was removed from the endangered or threatened list, it would mean that the goal of the ESA has been met and the species no longer needs to be protected. Indeed, social media posts about delisting often go viral as people celebrate the safety of the animal in question. Unfortunately, removal of protection under ESA is not always to be celebrated, as delisting is a complicated process with many factors that do not even consider the safety of the species. Thus, the current process allows for undesirable situations in which safe species remain on protected lists, while species that still need protection are removed.

Currently, two major paths to delisting from the ESA exist: regulatory and statutory. The regulatory path is rather arduous, as it requires a rule to be published in the federal register under relatively stringent conditions.[4] Under this pathway, the agency is required to use the best scientific and commercial data available in making any delisting determination.[5] Specifically, it must consider five factors in making a determination: threat to the species habitat or range, overutilization for commercial or other purposes, disease or predation, other regulatory protections, and other natural or manmade factors effecting its continued existence.[6] The species may only be delisted if it is found to be extinct, adequately recovered, or if the original data used was found to be in error.[7] The rule must also be available for public comment, and is subject to judicial review. Due to these guidelines, many attempts to delist, including the 2009 attempt to delist the gray wolf, have faced difficulties in getting past judicial review.

In 2009, before the inauguration of the new administration, the Fish and Wildlife Service (“FWS”) issued a rule delisting gray wolves in the Rocky Mountains except for Wyoming.[8] Upon judicial review, the District Court of Montana held that the agency could not get around the stringent requirements by separating a species into smaller sub-species.[9] This case is illustrative of the difficulty in removing a species from the list by regulation. In fact, only 1.3% of all species added to the list have ever been removed.[10] However, gray wolves did not remain on the list indefinitely, but were instead removed through the second and less scrutinous means of removal, a statute.

In 2011, a rider reaffirming the 2009 rule was attached to a budget bill, which was eventually passed and signed into law.[11] This rider stated that the rule would not be subject to judicial review, and consequently the courts would be unable to change it.[12] The Ninth Circuit affirmed Congress’ power to delist a species on its own and without facing judicial review.[13] This became the first formal delisting by virtue of statute, but it is likely not the last. Indeed, another attempt was made to delist additional gray wolves in 2017 via a budget rider, although it failed to pass the Senate.[14] Subsequent efforts by the FWS to delist other areas of gray wolves have been rejected by courts,[15] so it is likely that Congress will again attempt to delist the gray wolves and other species in the future.

It is important to note that there are more lists of endangered species than just the American list.[16] In particular, the International Union for Conservation of Nature (IUCN) keeps a red list of imperiled species.[17] The red list contains a plethora of species, including many that cannot be found on the American list.[18] The IUCN list contains different criteria for delisting, and more categories for wildlife to be placed on the list.[19] While IUCN is considered the foremost authority on the area, and many of their recommendations are put into effect by legislation around the world, they are not legally binding in the way that the ESA’s categories are.[20] There are many discrepancies between the two lists, such as the IUCN’s inclusion of many bird species not on the ESA’s list[21], and the great panda, which is only vulnerable on IUCN’s list.[22] So, while a species may be removed from the ESA list, it does not mean that it is evaluated as safe by all wildlife bodies, nor does it mean that it has lost all legal protection.

Due to the difficulty in delisting by regulation and increased political polarity on the topic of delisting, debates on the removal of species are unlikely to end soon. Statutory delisting may take a more central role in ESA conversations as regulatory attempts to delist continue to fail. Perhaps the United States could adopt UICN’s standards as many other countries do, in order to avoid politicization of the issue and create a universal standard congruent with the international community. No matter the solution, delisting will be an important part of any conversation regarding the ESA going forward.

[1] Endangered Species Act of 1973, 16 U.S.C. § 1531.
[2] Id.
[3] Id.
[4] 50 C.F.R. § 424.11.
[5] Id. at (c)–(d)
[6] Id.
[7] Id. at (d)
[8] Defenders of Wildlife v. Salazar, 729 F.Supp.2d 1207, 1211 (D. Mont. 2010).
[9] Id.
[10] Kevin Anderton, After 45 Years The Endangered Species Act Continues To Make Progress [Infographic], FORBES, (Apr. 23, 2018), https://www.forbes.com/sites/kevinanderton/2018/04/23/after-45-years-the-endangered-species-act-continues-to-make-progress-infographic/#79cab4897f89
[11] GRAY WOLVES AND WILD LANDS TARGETED IN FEDERAL BUDGET, (April 12, 2011) https://earthjustice.org/news/press/2011/gray-wolves-and-wild-lands-targeted-in-federal-budget
[12] Id.
[13] Alliance for the Wild Rockies v. Salazar, 672 F.3d 1170, 1175 (9th Cir. 2012).
[14] Laura Bies, House passes legislation to delist gray wolves, (Nov. 28, 2018) http://wildlife.org/house-passes-legislation-to-delist-gray-wolves/
[15] Kaitlyn Miller, Court upholds decision on Great Lakes gray wolf population, (Aug 4, 2017) http://wildlife.org/court-upholds-decision-on-great-lakes-gray-wolf-population/
[16] J. Berton C. Harris et. Al, Conserving imperiled species: a comparison of the IUCN Red List
and U.S. Endangered Species Act, Phillip Levin, (2011) https://www.biologicaldiversity.org/programs/biodiversity/endangered_species_act/pdfs/Harris_et_al_2011_ESA_and_IUCN.pdf.
[17] Id.
[18] Id.
[19] See id.
[20] See Id.
[21] Id.
[22] Gerry Shih, Are giant pandas really ready to come off endangered species list?, THE CHRISTIAN SCIENCE MONITOR, (Sep. 5, 2016) https://www.csmonitor.com/Environment/2016/0905/Are-giant-pandas-really-ready-to-come-off-endangered-species-list; GIANT PANDAS, https://www.fws.gov/international/animals/giant-pandas.html, (Last visited Feb. 14, 2019).