AUSTIN – The Texas Public Policy Foundation (TPPF) submitted comments in connection with rules proposed by the U.S. Fish and Wildlife Service (FWS), the National Oceanic and Atmospheric Administration (NOAA), and the National Marine Fisheries Service (NMFS). The proposed rules were originally enacted during the first Trump Administration and were later undone during the Biden Administration. A key change would remove the so-called “blanket rule” that applies the same strict rules to threatened species that the legislature intended to apply to endangered species. The legislature envisioned encouraging landowners to prevent threatened species from becoming endangered (and subject to more strict rules), incentivizing landowners to take measures to rehabilitate species on their land. By erasing any distinction between endangered and threatened species, this misguided policy contravenes not only the Endangered Species Act but also the Constitution of the United States.
Additional comments focus on interagency cooperation and how economic, national security, and other relevant impacts must be considered before determining whether a piece of land should be excluded from critical habitat designation. A consistent theme of constitutional concern runs through all of TPPF’s comments, with the Foundation reminding the Agencies to be conscious of their limited power under the Commerce Clause. Thirty years ago, the Supreme Court stated that the Endangered Species Act requires protection of species ‘at any cost,’ which Congress never intended. That Supreme Court ruling caused decades of government overreach that has needlessly strewn havoc over property rights, economic development, and national security considerations.
“The proposed rules recognize that it is time to dispose of that wrong-headed approach, and the Agencies are on a firm legal footing to do so,” said TPPF Senior Attorney Ted Hadzi-Antich, “For decades, property owners have been burdened with overzealous regulators who have unintelligently championed the ‘at any cost’ doctrine of species protection. We believe the repeal of the blanket rule and the promulgation of the related rules will bring welcome regulatory relief to property owners who should be permitted to exercise their constitutional rights over their own properties.”
TPPF Attorney Laura Beth Latimer added, “In an overregulated, over-criminalized world, any steps we can take toward restoring individual liberty are worth their weight in gold.”
To read the comments, click here, here, and here.
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