An executive order signed Monday by President Donald Trump could have a surprising effect in Idaho: potentially complicating efforts to delist the Yellowstone grizzly.
Monday’s order aims at fulfilling a campaign promise to reduce regulatory burdens on business. The order directs the Office of Management and Budget to calculate the economic costs of regulations — often no simple task — and for the new rules to have a net economic benefit. And for every new rule, two existing rules must go.
The order could have sweeping consequences, from loosening regulations on Wall Street to weakening limits on air and water pollution. But because of the the way the Endangered Species Act works, and because of the broad, generic language of the executive order, it may be more likely that the Yellowstone grizzly will remain listed into the future, despite efforts by state and federal managers to push toward deregulation.
Under the Endangered Species Act, a listed species as threatened or endangered is delisted through the publication and approval of a delisting rule. Though the effect of such a rule is to reduce federal regulatory authority over management of a species and turn authority over to states, it is nonetheless a federal regulation.
Brett Hartl is director of Government Affairs at the Center for Biological Diversity, an environmental group that closely follows federal rules. “Every time you repeal a rule, you are passing a rule,” said Hartl, an attorney.
The U.S. Fish and Wildlife Service had been considering, though it recently delayed a new rule after being inundated with public comments. Now the calculus may change fundamentally.
State and federal officials have fought for delisting, which would relax depredation rules and allow the state to establish potentially lucrative trophy hunts, saying that the grizzlies in Yellowstone are at healthy numbers. Fish and Wildlife officials didn’t return repeated calls by press time.
Under the Trump executive order, Fish and Wildlife may have to identify two regulations to eliminate, on top of delisting the Yellowstone grizzly. That task could prove much more difficult than merely passing a delisting rule that will stand up in court. So it could be easier to stand pat.
Trump’s order directs the director of the Office of Management and Budget to issue “guidance” on what qualifies as a new regulation and what qualifies as an offsetting cut. It’s possible that guidance could clarify the process going forward, but Trump’s OMB nominee has yet to get a confirmation hearing.
Another wrinkle: White House Chief of Staff Reince Priebus directed federal agencies not to implement new rules unless they had first been reviewed by a Trump appointee. While Trump has nominated Rep. Ryan Zinke, R-Mont., to become secretary of the interior, Trump has yet to nominate a director of Fish and Wildlife or assistant secretary for fish, wildlife and parks. So right now, there is no one to complete such a review.
Hartl said he thinks the order is likely “illegal” and certainly “a recipe for litigation chaos.”
“This is not how rule making is supposed to work. You don’t justify something by the decision to repeal something else,” he said.