Before breaking for summer, the U.S. Senate confirmed Brian Nesvik as the head of the U.S. Fish and Wildlife Service (USFWS). This development is significant for Secretary of the Interior Doug Burgham, who will have to fill his role eventually. However, many other appointments in the administration remain stalled due to a combination of Senate Democratic tactics and delays with White House nominations, candidate filings, committee hearings, and votes. It seems like a mounting issue for the Senate GOP, who are promising to revamp the seemingly absurd confirmation process when they reconvene on September 3rd. We’ll see if that actually happens.
Nesvik’s appointment is noteworthy amidst ongoing threats to the Endangered Species Act (ESA), with the USFWS’s authority seemingly expanding beyond its original intent, potentially putting significant constraints on private land owners.
A current priority for the Trump administration, as some may see it, includes using executive orders to dismiss certain species and subspecies from being listed under the ESA. The rationale hinges on the concept of “declining historical range,” which has often been deemed politically motivated rather than scientifically grounded. For instance, the USFWS utilizes this metric to label various species—like the California Gnatcatcher and the San Diego fairy shrimp—as endangered, which critics label as excessively extreme.
Essentially, the process involves the USFWS pinpointing a species or subspecies to examine and subsequently estimating its historical habitat range versus how much of that range has been developed for human use, like buildings and roads. For example, take the coastal areas of Southern California, where development has significantly encroached on historical habitats over the last two centuries. After estimating the remaining habitat, officials use these calculations to predict future threats to species, determining which need protection under the ESA. This often results in restrictive regulations that can severely impede development efforts by private landowners.
Many landowners face challenges in obtaining permits from the USFWS; these can be costly and usually end up being a heavy burden in terms of regulatory compliance. Speaking from personal experience as someone who practiced law in this field for nearly 30 years, the situation has only worsened since I retired in 2015.
While ESA is a significant factor in the housing shortage in various regions, it’s not the sole cause. Local regulations and statutes further complicate matters, often resulting in delayed projects and budget overruns. This regulatory environment is quite perplexing, reliant on assumptions that might not hold up under scrutiny.
With intended changes, President Trump, along with Burgham and Nesvik, aims to address these challenges through executive orders aimed at removing hundreds of subspecies from the endangered list. This move could potentially streamline regulations surrounding housing and infrastructure projects.
It would also be good for pressing needs related to building more housing and infrastructure. The Supreme Court should focus on cases that clarify how regulatory authority is exercised, leading to consistent rules for property rights and potentially speeding up bureaucratic processes.
Moreover, Burgham and Nesvik could advocate for a “National Section 10(a) Permission” to facilitate projects like fire management and pipeline construction. These are vital public undertakings, often stalled by environmental regulations invoked under the ESA.
President Trump, along with his administration, will face challenges in revitalizing infrastructure and curbing regulations that restrict private property rights. Balancing these interests could be essential for future projects and land use in America.
