EPA Will Ignore Economic Impact for Endangered Species Act Decisions

The EPA has released their final rule about how they plan to implement the Endangered Species Act (ESA). The final rule looks largely unchanged from the proposed rule released last year. 

On June 22, 2023, the EPA released three proposed rules that would change the way they implement the ESA. The proposed rules were very similar to how the ESA was implemented prior to 2019, and all three produce noticeable differences.  

The first rule proposes to ignore the economic impacts of decisions to list species under the ESA. It also changes the factors for delisting a species to remove the requirement for them to do so, instead giving them an option to.  

The second rule expands when the agencies may act based on what they consider “reasonably certain to occur”. This will allow more flexibility for agencies to make regulatory decisions. 

The third rule gives full protection to species meeting qualifications for threatened, not just endangered. This is referred to as the blanket 4(d) rule and will only be overwritten by a specific exemption rule from FWS. This will allow regulation enforcement in many more areas.  

As noted, the final rule is largely unchanged from the proposed rules. The one change that does seem apparent is a more reasonable definition for the term “foreseeable future” when discussing threatened species.  

Under the new implementation standards, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) will have much more input on actions of other agencies if they could affect ESA species, including EPA’s pesticide approvals and the U.S. Army Corps of Engineers’ (USACE) dam operations. 

During the proposed rule stages, Nebraska Farm Bureau advocated that the rules were better developed as they were, and the proposed rules were primarily a regression. As seen from the final rule being mostly unchanged, the EPA disagreed with our analysis on the subject. We hope the EPA will be reasonable with their new implementation standards. 

You may find more information on the official press release. As always, if you have any questions, please feel free to reach out to Kole Pederson, director of Environmental & Regulatory Affairs, at

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