The Trump Administration Is Dismantling the Endangered Species Act

And there's a bunch of different ways in which the Trump administration is dismantling the Endangered Species Act. And I know a lot of people know that there's something going on, but don't really know what it is, and this is the place to find out. Um, there are two cases in particular that we're gonna go into.

Maybe not as deep as sometimes we have the opportunity to, but, you know, at least covering the basics so people know what's going on, 'cause it's not good. It's really important, though. Uh, so welcome, Eric. Thank you so much for being with us.

Eric Glitzenstein: Happy to be here.

Mariann Sullivan: I just have one announcement I have to do before we go on, and that is about Vermont Law School.

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And, uh, all right. So now we can find out why we need all those lawyers. 'Cause I really think, as d- as depressing as this all is, like, when I started reading about these cases, 'cause I was one of those people who know, I know they're fucking a lot with the, um, Endangered Species Act, but I don't really know how.

Uh, and when I started reading it, I was like, "This is nuts. I mean, this is just nuts." Um, there's more going on here than we can hope to cover, but let's start with this, the definition of the word harm, which is really important here. Can you just go, like, start with a little history? What does the statute say?

It's a statute which was passed quite a long time ago. What did the regulations always say, uh, vis-à-vis harm, and, and what do they say now?

Eric Glitzenstein: Sure. And, um This particular provision has a long, uh, and the regulatory aspect of it has a long history, so it is useful to provide some context for where we are now, 'cause it's really quite extraordinary. And, um, before getting to that, I'd just say, and I think this should become clear as we talk about all these issues, this is the most extreme attack on the Endangered Species Act that we're gonna be discussing today that we've seen, I think it's pretty fair to say, in the history of the act since it was first enacted.

Uh, we're seeing this administration take positions that no other administration even literally thought about, let alone gone down this road. And we're talking about very, you know, right-wing administrations, conservative administrations who have taken various positions against the ESA, but nothing remotely close to what is happening in this administration.

So when we talk about this really dire situation that we're in, uh, it's not rhetorical. I mean, this really is trying to undercut the act. Now, the harm definition in particular, uh, stems from, uh, the statute itself, which broadly, uh, proscribes the take of any endangered or threatened species without authorization from one of the agencies that primarily implements the act, and that's the Fish and Wildlife Service in the Interior Department for terrestrial species, uh, the National Marine Fishery Service for marine species, an agency within the Department of Commerce. Um, and, uh, the statute itself, um, pro- provides the take is, uh, is prohibited by the statute. Uh, and take is broadly defined by the statute itself to, uh, mean, uh, harm, kill, wound, injure, a whole list of words. Um, and pretty much since the beginning of the statute or shortly thereafter, the agencies that implement the act, uh, have made clear that harm by its plain terms encompasses a certain level of habitat loss or habitat degradation. and, uh, they started doing this in the 1970s. The statute was passed in 1973. There was an early definition of harm that encompasses habitat loss and degradation. and then, uh, subsequently during the Reagan administration, they adopted a pretty restrictive definition, but still included, um, habitat loss and degradation.

And specifically, what it provided was that, uh, harm would encompass, um, anything which actually kills or injures wildlife, including habitat loss and degradation, where it actually kills and injures wildlife. So it attached this very narrow kind of proviso, uh, but nonetheless, um, encompassed a level of habitat loss and degradation that could rise to that level of impact on the species.

So if you go down out and cut down a forest where there are nesting marbled murrelets, or if you, uh, go and, uh, destroy habitat through a mining operation that would directly injure and kills, you know, species by impairing essential behavioral attributes like feeding, uh, sheltering, breeding, those sorts of things, that has been covered by the act's harm definition, uh, for many, many years, decades. Um, including, again, as I say, during these, um, administrations that otherwise were not deemed to be too friendly to the Endangered Species Act. Now, one important other sort of historical note about why this was added to the statute and, and what it all, you know, relates to, um, is an early case called, uh, TVA versus Hill, uh, which as people may know, is the infamous snail darter case or famous snail darter case, where a huge project was blocked, uh, in order to protect, um, one species called the snail darter, a small species. And as a result of that, Congress has adopted various amendments over the course of time. They've added various ways in which people can get authorization, uh, to have an adverse impact on a species, so long as certain measures were taken, certain steps were taken to protect the species. Um, and one thing that's important to understand is there are two main mechanisms in which that, uh, can come into play. One is for federal agencies, there's something called the Section Seven consultation process, which means any federal agency which is gonna take an action which is gonna have an adverse impact on a s- a listed species, an endangered or threatened species It has to consult with the, one of these two agencies, expert agencies I mentioned a moment ago, to see whether or not that action will jeopardize the continued existence of the species, cause extinction, um, or destroy or adversely modify critical habitat of the species. Um, but also during that process, what the statute says is that the agency, uh, is supposed to determine whether or not any take will occur. And if take will occur, then various kinds of measures have to be adopted by one of these expert agencies, the Fish and Wildlife Service or the National Marine Fisheries Service, and the, what's called the action agency, the agency taking the action. The Forest Service, uh, the, uh, uh, you know, one of the agencies that regulates, um, actions in the ocean, et cetera, they have to basically consult in order to determine whether or not take will occur and to minimize and mitigate that take. Now, for purely private actions, there's a separate process called the incidental take permit process, uh, in which what the statute says if you wanna have an adverse impact on a species, including through habitat loss or degradation, you have to go and apply for one of these incidental take permits, but you can only get those if you have a habitat conservation plan that will help offset the effect of those actions. Now, all that was adopted by Congress in amendments over the course of time, including in response to TVA versus Hill, to provide this kind of process that ag- that people can go through, both federal agencies and private parties and states, in order to mitigate their effects, uh, on habitat. But all that has now been wiped away by this recent change in the regulatory apparatus that's been adopted by the Fish and Wildlife Service and National Marine Fisheries Service.

But that's a little bit of historical background for how we got to where we are now.

Mariann Sullivan: Yeah, that's really helpful. And, uh, just to emphasize the point that you just made, those were provisions that were put in there by Congress to account for how you deal with incidental take, which has to do with habitat. So Congress apparently this wasn't some mistake Congress made like that they never noticed that this was in there, and, and that the agency had just gone, like, crazy and said that, uh, yeah, habitat modification isn't part of this statute.

Obviously it was.

Eric Glitzenstein: Yeah. I mean, one thing to be clear in that regard is when you look back at the original legislative history of the act, Congress identified two major causes of species extinction at that time. Um, overhunting and fishing to the point where some species were literally be driven e-, you know, extinct. You know, infamous examples like the passenger pigeon and other species like that, that literally were, uh, driven extinct by people just basically killing them to the point where they didn't exist anymore.

But the other major impact that Congress identified was habitat loss and degradation. That was in 1973 when the statute was first enacted, and then later when Congress came along after TV versus Hill and said, "We wanna fine-tune the statute," put into place a specific provision designed to address incidental take from habitat loss and degradation.

A- and by the way, when we say incidental take, I think it's important to recognize what incidental means in this context. It doesn't necessarily mean that, oh, you're just an innocent bystander and you have no idea what impact your activity has on the species. You could know perfectly well that when you cut down the forest, you're gonna be impacting endangered or threatened birds that live in that forest.

You know perfectly well when you engage in the mining operation, you're gonna destroy the last remnants of whatever species, plant or animal species that are occupying that habitat. Or when you engage in extensive fishing operations, that you're gonna basically harm whale species or other species. Um, incidental simply means that's not the purpose of the activity.

It doesn't mean it's just simply like something nobody ever thought about. You could know with absolute certainty that the thing you're doing is gonna harm the species, maybe even drive it to extinction. But, uh, so long as it's not your direct purpose, that's what incidental means. And Congress basically said, "We don't care whether that's really what your purpose is.

We only care if it's gonna have the effect of driving these species to extinction or, or in o- some other way setting back their recovery in a way that we want the act to address." So yes, Congress knew perfectly well that this was a major cause of species decline, and adopted amendments that were clearly designed to address that, while on some level allowing activities to proceed, while also taking into account these kinds of, of impacts and, and o- and offsetting them as best they could be offset

Mariann Sullivan: Well, I guess we should get to, uh, what the Fish and Wildlife Service, um, and, and I guess both of them, both of the, the services, uh, did that, that kicked off this particular litigation. What did they do with this definition that was in their regs?

Eric Glitzenstein: Well, this had been in their ranks for many, many years, as I mentioned, and, uh, as part of the current administration's Uh, efforts to basically dismantle conservation efforts pretty much across the board. This is really of a piece of, of many, many other activities they've undertaken. They came out a number of months ago with a proposal that they've now finalized essentially eliminate the definition of harm, um, as it's been on the books for many years entirely. and there's what they did, and there's their rationale for it. In some respects, the rationale is even more problematic than what they did. So as I mentioned, they defined harm for many years as activities that actually cause death or injury of members of endangered or threatened species, and then went on to say in the same definition that that can encompass habitat loss and degradation where it has that effect on species. And what they proposed to do and have now done as a final matter is eliminate that definition. It is probably accurate to say that they never had to put in such a definition in the first place. You can make an argument the statute on its face, and this is an argument that we have made and will make in the conservation, um, animal protection community, that harm under the statute itself clearly encompasses habitat loss and degradation. So arguably, they didn't need to put in a definition in the first place, and if they came in out and said, "Well, we d- we didn't really need to put in a regulatory definition, we think the statute is clear enough," that would be one thing. But they didn't do that. Instead what they did was support the elimination of the definition they had put in for many years, decades, by adopting an incredibly narrow interpretation of what harm means and what even more broadly, what the take prohibition means. And what they did quite clearly is adopt a dissenting opinion from Justice Antonin Scalia, uh, from a 1995 Supreme Court decision called Sweet Home, that's its sort of popular reference point, um, in which this regulation had come before the Supreme Court on a facial challenge, that certain timber interests that wanted to basically log in the habitat of the northern spotted owl, um, and other species, came, uh, to the courts and said, "We think that harm as defined to include habitat loss and modification, uh, is illegal.

It goes beyond what take should mean under the Endangered Species Act. It's not supported by the statute of the legislative history." And they got that case up to the US Supreme Court, and on a six to three decision, the Supreme Court rejected that challenge brought by the timber interests and said, "No, we think the facial, um, re, uh, challenge is objectionable for a multitude of reasons," which we could go into a little bit more. But the bottom line ruling was that the regulation was a permissible interpretation of the Endangered Species Act under the familiar Chevron framework that existed at that time. And we've shifted the way we construe statutes, as people, um, likely know. We could talk about that a little bit, it becomes very

important here.

Mariann Sullivan: I do wanna talk about it 'cause I don't like, I don't un- what are they talking about? It's really hard to understand. I kept reading it and thinking, "I, I don't understand this. I must not, I must not get it." And then I realize...

Eric Glitzenstein: Well,

Mariann Sullivan: I'm sorry. I don't, I don't mean to preview, but I just can't figure out, like, why they think that, that, that, that now you should d- go with the dissent.

Like,

Eric Glitzenstein: Yeah. Well, so th-- just, uh, yeah, before, yeah, just a part of that, the first thing they said was, "We're gonna go with the dissent," right? "We're not going with the majority opinion." We-- Which basically said, "This is a perfectly reasonable way to construe the act." Congress clearly cared about habitat loss. That was one of the real crucial objectives of the statute. We've got this incidental take provision I just mentioned a moment ago. All kinds of ways, uh, in which the statute could reasonably construe, be construed that way. Um, but, uh, Justice Scalia had his dissenting opinion on behalf of three justices, Justice Scalia, Chief Justice Rehnquist, and Justice Thomas. becomes really important to an understanding of where we are because of all the justices in, who were on the court at that time, the only one still on the court is Justice Thomas. but any event, uh, Justice Scalia comes out with this very narrow interpretation of take, and in the rule that's now in, in effect, in the preamble to the rule, the r-rescission of the rule, the Service has said, "We have decided that Justice Scalia's view is the right view." rather ironically or perversely one might say, they relied upon Loper Bright, which is the change in the con- way of construing statutes to support their view. So what they say is that while it's true that the Supreme Court upheld the old definition, the old construction as covering, um, habitat loss, but that was under the Chevron framework. And all the Supreme Court said at that time was that that was a reasonable interpretation of the statute. They didn't say it was the best interpretation of the statute. That opens the door for us now under the new Loper Bright world in which the Supreme Court has recently, as I'm sure people know, said, "We no longer defer to reasonable agency interpretations.

Now it's the job of the courts to decide what is the best reading of a statute. And we have decided, lo and behold, after all these years and decades, that Justice Scalia's interpretation is the best reading of the statute. therefore, the door is open to us, and we hereby adopt that as our interpretation.

Mariann Sullivan: It's crazy.

Like up until a certain point, okay, if somebody wanted to litigate and say that, you know, Sweet Home was decided like with a deferential review and it needs to be re-reviewed, it's not a good argument, but you could make that argument. But then how do you get to Scalia's dissent? Like the, the agency is, has, has been made less relevant by, uh, Loper Bright, and instead they're saying, "No, now we're the agency, so we can co- totally reinterpret this."

Eric Glitzenstein: Yeah, absolutely. You're, you're-- It's right on the-- hits the nail right on the head. What Loper Bright said, the courts can reinterpret based upon the best reading. It didn't come along and say, "Agencies are now free to basically pick up on long-discredited views and suddenly turn those into the best reading of the statute." and so that's one major problem with their-- what they've done. Another major... There are so many problems. Another major problem is that one of the things that Loper Bright said was that, "Oh yeah, in response to the argument that we're reopening everything that previously decided, we still think that what they refer to as statutory stare decisis should still apply." Meaning, seemingly, that for things that the Supreme Court itself has previously upheld under the Chevron framework, those would still continue to be binding on courts and agencies, at least until the Supreme Court itself decided to overrule or do something different. and so they've got that huge problem too, and if you read the preamble and the rule itself, have to say, it's almost gobbledygook on the, on the stare decisis point. Um, what they say is, "Well, it's not stare decisis because we have decided this is the best reading," but that was the whole point of the Supreme Court saying the stare decisis would continue to apply.

Mariann Sullivan: Right. That is, that's what stare decisis is. Like, like you follow it.

Eric Glitzenstein: It, it, it makes really no sense. Um, but even if you get past all of those problems, the even bigger problem they have is if you read the majority opinion from Sweet Home Yes, it's true.

It was technically decided under the Chevron framework, but they didn't-- The Supreme Court did not say, "Oh, this is a really tough one, and we're gonna ultimately defer to the agency." The Supreme Court majority, an opinion written by Stevens, and by the way, joined by Justice Souter, joined by Justice Kennedy, joined by Justice O'Connor, who wrote a very influential concurring opinion we could talk about in a moment, uh, 'cause it's important to...

It puts some sideboards on what harm meant, 'cause Justice O'Connor was trying to come up with something of a middle ground position, as she tended to do. But nonetheless, they basically said, "The plain language of the statute clearly covers, uh, habitat loss and degradation. We've got this incidental take permit provision that you can't explain by anything other than it covering habitat loss and degradation. The overarching purpose of the statute clearly covers habitat loss and degradation." And so therefore, it's true, they ultimately said at the very least, this is a reasonable construction under Chevron, but the only fair way of reading the majority opinion is that they clearly thought that was also the quote unquote, "best interpretation" of the statute.

They didn't have to say that under the Chevron framework, but those are all the problems that they have in what they've done now. But nonetheless, as one might imagine with this administration, none of that would deter them from adopting what is clearly an ideologically driven effort to, like, just limit the reach of a law like the Endangered Species Act as much as they can. And so they have come out and declared to the world at large, "Not only are we rescinding the definition, but we are telling you the world at large that we no longer think that anything beyond purposeful take, uh, is covered by the Endangered Species Act.

Mariann Sullivan: Like you are going out with a gun to shoot an endangered species, that's what's covered. Or

Eric Glitzenstein: That's correct.

Mariann Sullivan: Something along those lines. Something along those lines.

Eric Glitzenstein: Unless there be any doubt about it, people may have seen just a few days ago, there was a huge article in The New York Times because, uh, people have gotten their hands on an internal memorandum, uh, that was generated inside the Fish and Wildlife Service, which took the Sweet Home analysis in this rule and took it, you know, to its logical or illogical conclusion by saying, "Yes, unless you are going out there intentionally to do something aimed directly at an animal that's covered by the Endangered, uh, Species Act, then it's no longer a, a impermissible take."

And the examples they give are really striking. Just to give... You know, one of the examples is, if you know that the boat you're strike- g- going out and driving is gonna hit a right whale of which there are 350 left on the planet, and you know for absolutely certain that your boat is going to kill that right whale, if th- even if the... As long as that's not the purpose of your activity, it's no longer covered by the take prohibition. If you're gonna go and cut down the roosting tree of the India- last remaining Indiana bat, that's no longer a take unless your purpose is to kill the Indiana bat and not engage in timber activity. Um, to take an example from Sweet Home itself, which all the opinions talk about, if you drain a s- a, a swamp or a lake with the last member of an endangered turtle in it, knowing that it's going to d- drive the species to extinction, that is no longer impermissible activity under the Endangered Species Act, as long as your purpose was to drain the swamp for some other reason and not to, not kill or get at the turtle. So that's, that's literally as extreme as their position is, and they have now

made that even clearer under this memo that was just basically issued to all Fish and Wildlife Serv- uh, personnel.

Mariann Sullivan: It's insane. It is truly insane. Um, and I'm really glad you, you, you spoke about, uh, the majority in, in Sweet Home, because I did not, shockingly, reread it. Um, and, and I was kind of wondering whether they, you know, there was a reluctance or just a, just a, a sense that they were just going along with the agency because th- they were showing deference to the agency, and so I'm, I'm really glad you pointed out that that was not the spirit of that decision.

Eric Glitzenstein: Certainly not the spirit the most objective readers would come away with. but you know, again, there is the objective analysis which this administration is not interested in, and then there's the wiggle room that they think they could exploit.

Mariann Sullivan: I mean, there really is no wiggle room.

Eric Glitzenstein: You know, and the reality is, you know, they're banking on, um, ultimately their position being upheld.

You know, maybe not by lower courts, but

Mariann Sullivan: Right. Of course, of course, of course

Eric Glitzenstein: see happening all the time. They, they think, they think they, they take these positions across the board in many areas assuming they may lose in the lower courts, and then they hope that at some point they get up to a tribunal that's gonna take their, um, their position seriously. Whereas most people would look it and say it's, it's not a serious position

Mariann Sullivan: And in the America we're living in right now, that's entirely possible, so I shouldn't be, I shouldn't be making fun of them for being so outrageous 'cause they know what they're doing. All right, te- just tell us, I mean, we have a lot to cover and, and we d- we need to get to the other case, which is equally important, but I, we haven't really talked about the lawsuit itself.

Can you just tell us, like, who's suing? There's a lot of states suing, right?

Eric Glitzenstein: Yes. Yes. Um, so there are now, by my count, five cases that have been filed challenging this. Uh, I think the three, uh, forums, uh, where they've been f- filed are, uh, Seattle, which is where we have a c- case currently pending, along with some other groups, uh, represented by Earthjustice as well as some Center attorneys. Um, we have a case pending in the Northern District of California brought by other conservation groups, but also by a whole coalition of states led by California, which has recently filed their case. Um, and then the Southern Environmental Law Center, on behalf of some groups, filed a case in, uh, South Carolina, uh, which is in the Fourth Circuit, as people know. So, uh, those cases are still in their early stages. The government has not responded yet. Um, and so we will see how those cases unfold. But they basically are all facial challenges to the withdrawal of the harm definition, um, and basically make some pretty straightforward claims, um, as you might imagine. Um, that this is arbitrary and capricious and not in accordance with law under the Administrative Procedure Act 'cause it's in flagrant disregard of Sweet Home itself, as well as the plain language of the statute, history, et cetera. Um, ignores what the Supreme Court said about stare decisis, what we said a moment ago, um, as well as claims that are brought under both NEPA, National Environmental Policy Act, because they did no environmental analysis whatsoever in making this decision. Uh, they invoke what's called a categorical exclusion under NEPA. and so we don't have any analysis of what impact this will have on listed species. In fact, one of the kind of amazing things they say when they're adopting the rule is, "Oh yeah, we recognize that habitat is really important for species, and we're not discounting that at all.

We just think that our hands are tied because we really can't extend this take prohibition any further than this direct kind of take. Um, and by the way, it's okay because these other provisions of the Endangered Species Act will adequately cover, um, habitat impacts while simultaneously basically undercutting those provisions as well," which gets us a, a little bit into the other case we're

Mariann Sullivan: The other case, okay

Eric Glitzenstein: Um, but, um, uh, and the other claim, uh, is kind of getting a little bit in the weeds, but it's something called, uh, intra-, uh, service, intra-agency Section 7 consultation. Which is when you take an action under the act, you're supposed to determine whether or not, as I said before, what adverse impact you're having upon endangered and threatened species. And when the service itself undertakes an act, it's supposed to engage in that process itself, and it didn't do any of that along with doing no NEPA review. So those are the basic claims that, you know,

Mariann Sullivan: Those are pretty big claims. Like, if you had one of those claim, a good argument on one of those claims in many of your cases, you'd feel pretty cl- you have all of them. I mean, you have every possible argument here.

Eric Glitzenstein: Yeah, as I say, we feel pretty confident that these are, these are viable claims. On top of the fact that this has been the interpretation of the agency, like literally for many decades, um, during multiple administrations and, you know, even without having Chevron deference anymore, as people may know, Loper Bright, the Supreme Court said, "Yeah, we're getting rid of Chevron deference," but we could have this lesser kind of...

It's not really deference, but at least respect when there's a long-standing agency interpretation. Um, and here we have that up the wazoo. I mean, we've got like, you know, this agency saying this for like, you know, literally decades, that this is the appropriate interpretation of the statute. So even if there was some doubt about plain language or anything else, we also have on our side this long-standing agency interpretation that lo and behold, they've-- these, these the current administration has decided after so many years and decades, "Gee, I guess we were wrong from the very beginning about what the statute actually means and what it, what it applies to." So yeah, we... You know, again, there's gonna be a long, uh, row to hoe on this thing, uh, but we feel pretty confident that these are, these are pretty compelling claims.

Mariann Sullivan: What's the story on a stay? Uh, and how much damage can they do if, uh... Well, I guess that depends on what happens in November. But, uh, just, just lay out how much damage can occur if, and is there a possibility of a stay?

Eric Glitzenstein: Uh, there was a lot of damage. Uh, to this point, nobody has sought an emergency injunction or a stay. And part of that is based upon the calculation that we believe the strongest case we could put forward is by getting an administrative record to show just how weak the defense of this thing is. And there's also timing considerations in terms of making sure we get the lower courts to take their best hit at this before it may end up eventually, um, in a court that we may regard as not as favorably inclined as, as lower courts that we may go up through. So at this point, we're basically waiting to see what the government's response is. I think the other important

point to keep in mind is from our vantage point, um, when they apply this newfound understanding of the statute, um, there's no reason why people cannot bring what are referred to as applied challenges or case-specific challenges.

So if they come out and say, "We're gonna let the boats go off and, you know, kill right whales or any other species," um, regardless of what they've said in withdrawing the harm definition, there's always opportunities to address those in more of a case-by-case basis.

Mariann Sullivan: Okay

Eric Glitzenstein: You know, given the environment that we're in, um, without going too much in the weeds on internal strategy, there are calculations that have to be made about how do we offset the harm, but also how do we litigate these cases in a way that maximizes our chances not only of short-term success, but the ultimate success, which is really obviously, um, which is as critical as, as staving off some of the harms.

And part of it is, uh, we're waiting... As, as bad as it looks right now, we're waiting to see exactly how far the agencies go on a day-to-day basis. And quite amazingly, these agencies themselves don't seem to know exactly what they're doing in implementing this thing. They've just made it clear they don't think anything other than this intentional and purposeful take is covered, yet we still have some of the agency decisions coming out, which seem to basically be, uh, along different lines and continue to cover some level of incidental take.

So there seems to be a sort of mass confusion,

Mariann Sullivan: Yeah. Uh, well, really

Eric Glitzenstein: tell the federal bureaucracy, "By the way, the way that we've been doing things for the last, you know, thirty, forty years, we're not doing any of that

Mariann Sullivan: Some of whom may actually believe in it too and, and believe it was all a good idea.

Eric Glitzenstein: They believe in it certainly, and when you've hollowed out the federal workforce, the people you rely upon in the bureaucracy to ma- to make those day-to-day decisions are scratching their heads going, "What?

What are we supposed to be doing?" So part of it's like seeing to some degree how some of the confusion pans out and what's happening. But I mean, those are the kind of calculations, you know, the kind of factors we're taking into consideration as we, as we pursue this.

Mariann Sullivan: Yeah, it really is. I mean, they have taken Lober Brite to mean that the agency can do whatever it wants, which is really, really surprising, a surprising interpretation. Um,

Eric Glitzenstein: Yeah. Well,

we all knew, you know, not to get too far afield on Loper Bright and Chevron, we all knew when Loper Bright came along the world was gonna change. Um, and to some degree, you know, from our standpoint, that is the conservational animal protection standpoint, for the better, 'cause we've had some longstanding interpretations of laws, as you know, that were terrible,

Mariann Sullivan: Yeah. From the animal law perspective, the A- Animal Welfare Act is, you know, the agency has completely misinterpreted it in favor of not the animals.

Eric Glitzenstein: So this, this opened the door obviously to some degree for people to come in and challenge those kinds of things, but also these guys, you know, from their, from what my, you know, what I would characterize as a perverse vantage point, looking at it and saying, "Hey, what can we get away with that we couldn't get away with before?" So they're trying to see how far they can go with that and, you know, uh, when you take a step back purely from an academic standpoint, um, it'll be interesting to see how some of that shakes out.

Mariann Sullivan: Anything else I should ask you before we move on to the God Squad?

Eric Glitzenstein: No, I think we've covered it pretty well. The one thing I would say about, um, Scalia's, uh, analysis, which people who are interested in this kind of thing may want to take a look at is, a lot of it is sort of hearkening back to what we know the Supreme Court really cares deeply about these days, which is historical analysis. And so he basically takes the word take, which as we know has a long, you know, history in the law, in the common law, and goes back, you know, literally not only to early Supreme Court cases, a famous case called Geer, which talked about what take meant and when states could regulate hunting and those kinds of activities, but even goes back to sort of British common law. Um, and you know, they're really trying to set this up because they even refer to 1,000 years of precedent and trying to like, obviously appeal ultimately to this sense of like history and tradition, um, ignoring the fact that we have Congress coming along in 1973 and saying, "This is what we mean by it.

We're not bound by what the, you know,

Mariann Sullivan: The language could have shifted.

Eric Glitzenstein: You know, at the, yeah, at the time of the Norman Conquest. We're interested in what it means like in 1973."

Mariann Sullivan: I mean, if they were int- if they were interpreting the Magna Carta or something, okay. But...

Eric Glitzenstein: Yeah, exactly. Uh, but anyway, I just thought people who are interested in the way the Supreme Court generally looks at the... And how they're obviously trying to play into this, what clearly turns out to be very re-result oriented foray into history.

Mariann Sullivan: No kidding

Eric Glitzenstein: That's clearly, you know, that's part of what Scalia's analysis...

And, and I would say, you know, his analysis is entertaining. Um, I always disagree with Scalia, but he writes in a way which is much more entertaining than the usual opinions. So, uh, if people really want a good, a good flavor, a lot of this will turn on what the majority meant and what Scalia meant, and how persuasive that is.

So if people wanna take a look at that, um, that would be an interesting thing for people to also be aware of.

Mariann Sullivan: Um, alright, God Squad. I think most people, if they've heard of the God Squad, heard about it in law school and not since. Um, so, but this is part of the Endangered Species Act. They don't ca- call it that in the act. Can you explain what it is?

Eric Glitzenstein: Sure. So again, this is another of the things that came into effect, not in the original Endangered Species Act, but as a response to TVA versus Hill, the T- the snail darter case. Um, and when the Supreme Court had blocked that huge construction project from going forward, um, the Congress decided to come in again, make some adjustments to the statute.

Nothing that was like a wholesale ripping out of really the core of the act, but what they regarded as some sort of fine-tuning of the statute. And one of the things, other things they came up with was this cabinet level committee that would be impaneled in very rare circumstances, v- uh, only when the normal process would yield a irre- irreconcilable conflict between the need to protect the species and some other overriding national security or other overriding national interest. Um, and so what Congress created was this committee that would be impaneled and would have to go through a very, uh, rather cumbersome process, um, to obviously have hearings, to make findings that were very specific findings about why the normal process of the act couldn't reconcile the problem, why you needed some kind of a special exemption at the end of the day. And it's called the God Squad because literally it has the power at the end of the day to consign a species to extinction. To decide that whatever this paramount purported interest is, it overrides the normal protection of the Endangered Species Act, which Congress had declared was the highest of priorities when it adopted the statute.

And as TVA versus Hill said, Congress has decided we should not allow species to go extinct for all kinds of reasons, and, and they created this very narrow un- uh, very specialized process. One of the critical things about it was it could only come into play after the normal consultation process I referred to before had already been undertaken and had reached a certain result. And as I mentioned before, the outcome of that process, a determination by the, uh, expert agencies that either a particular activity will or won't jeopardize the continued existence of a species or destroy critical habitat. Uh, and even if they reach that conclusion, then under this normal process in the statute, they would have to come up with something called a reasonable and prudent alternative. Something that could be done that would avoid one of those effects but allow the action to proceed The way the statute reads in this, uh, God squad provision that was created, only at the end of that process, if the determination was made that there will be jeopardy or adverse modification of critical habitat, and there is no alternative we could come up with that would reconcile the interest that we're talking about with the species interest, only then would you be able to go to the God squad. As you might imagine, that has been extre- extraordinarily rare, and in fact, is basically invoked only a handful of times in the history of the act, and not for the last 40 years until earlier this year. But that's basically what the God squad apparatus was designed to do, um, and really, um, the role that was very, very narrow role it was intended to have, uh, according to Congress.

Mariann Sullivan: All right, so let's get to the specifics of, um, what happened here. It's in the Gulf of Mexico, uh, and involved a request by Hegseth. And, you know, I would say it was shocking, but nobody's gonna be shocked because it's impossible to shock us anymore. But, uh, what... So did they go through this process? What kind of, uh...

Who, who was on the God squad at this point? You said cabinet level, so one can imagine. And, and did they go through this process and, and go to these particular people in the cabinet and, and, and what did they wanna do?

Eric Glitzenstein: So the way, uh, to answer that question, I think, by telling how we and the rest of the public even found out that this was going on. Because normally, again, the way the process would work is there's a conclusion that you can't both do the action and also save the species. Everybody would know about that.

That would unfold for a long period of time. We'd all be apprised of that. None of that happened here. In March of this year, suddenly there's a federal register notice out of the blue saying, "The God Squad will be empaneled for the first time in 40 years." To address whether or not there should be an exemption for Gulf of America activities, um, oil and gas activities.

Gulf of America. I, I will call it Gulf of Mexico, as you did. Um, and no, no other indication as to what they meant, why that was happening, what was triggering any of that, okay? Not mentioned at that point anything about Hegseth. So, uh, The Center, we actually filed a complaint immediately thereafter and a motion for a temporary restraining order. At which point, for the first time ever, they were forced to come back and say, "Well, here's what's actually going on." Secretary of War, which I again I refuse to refer to as that, secretary. As far as I know, there is no such real thing. Secretary of Defense, Pete Hegseth, has invoked this other provision of the Endangered Species Act to declare a national security interest. Don't tell us what the national security interest, why they need to invoke some kind of specialized exemption for that. But as things play out, we then learn that when they actually get the God Squad committee together, which is empaneled by the Secretary of Interior, but has the head of EPA, it has several, uh, the head of, uh, Council of Economic Advisors, um, and is also attended by Hegseth themself. They had this meeting a couple of weeks later, where they basically declare that the reason why there has to be this extraordinary exemption for all oil and gas activities in the Gulf of, of Mexico, because people had sued over oil and gas operations in the past. And even though none of those lawsuits have to date shut down in any kind of broad way oil and gas operations in the Gulf of Mexico, that...

I, I'm literally not making this up. If you wanna look at the documents themselves. In the future, this may happen, they may shut it down in the future. Some court may issue relief in the future, and the mere potential that someone may bring a lawsuit like that, that could have that relief, if that were to happen, that would be a horrible development for US national security interests, 'cause we're so dependent on oil and gas from the Gulf of Mexico, that therefore Pete Hegseth has asserted this national security exemption, which we as the committee are obligated, not that we have the discretion to adopt.

That whatever Pete Hegseth says, because it's a national security exemption, we have to accept and therefore turn it into a, um, exemption from the Endangered Species Act for all, all oil and gas operations occurring in the Gulf of Mexico. That is literally how it came to pass. That is the extent of the agency decision-making.

There is a document from Pete Hegseth which would look comical if it was not, had such serious consequences, where that's, that's, that is exactly the analysis. People have sued, people might sue in the future. Some court might issue a ruling that has some effect on oil and gas operations, therefore I deem it necessary for national security.

That then becomes adopted wholesale with no discretion by the committee, uh, as the law of the land, and therefore exempts all of these activities from, uh, the normal operation of the Endangered Species Act. The take prohibition, the Section 7 process, any of the protections of the Endangered Species Act.

Mariann Sullivan: And so no specific species, just any end- endangered species that happen to be around, we don't have to worry about them?

Eric Glitzenstein: And, and it covers, you know, endangered or threatened turtle species, endangered or threatened whale species, including this extremely imperiled species called the Rice's whale, which people may have heard about, which is a a species, um, they, they frequent- they previously thought actually may have been part of another species, but have declared it to be its own species, of which there are only 51 remaining on Earth. This is a highly imperiled species. Uh, and literally if you basically allow these activities to proceed unimpeded, that may be the very first species that we see go extinct as a result of this.

But we're talking about sea turtles, we're talking about whales, we're talking about a whole host of endangered and threatened bird species. Um, Gulf of Mexico, as people may know, is an incredible biodiversity hotspot. It's got some of the highest biodiversity on the planet, let alone the United States, and they had basically just declared off of it, off limits to endangered species protection. Um, in one, you know, literally the stroke of a pen by Pete Hegseth of all people.

Mariann Sullivan: And, and the rat-

Eric Glitzenstein: Really quite remarkable.

Mariann Sullivan: The rationale that it is necessary for oil and gas exploration is just because we need oil and gas, so, so anywhere we can get oil and gas, that m- that's a national security concern?

Eric Glitzenstein: That's pretty much the extent of it. Um, it's, it's, it's literally a rationale that could be applied pretty much to any other resource, if you think about it. Um, you know, they can declare that, you know, and as, and just as an aside, um, you know, this is not an administration which has at all been, uh, uh, shy about, you know, invoking national security whenever they wanna accomplish any of their objectives.

So nothing stops them from declaring, "Oh, we've decided that the national forests are a national security, uh, objective, and therefore we have to make sure we're not protecting any species in the national forests."

Mariann Sullivan: Makes sense.

Eric Glitzenstein: Getting, yeah, getting, uh, you know, these rare minerals is a national security objective, therefore any species that are in the pathway of any of the mining operations, that's not...

I mean, literally this rationale could be applied to eliminate anything they want to eliminate from the protection of the... It is that broad. It is that insane. Um, and again, what they tied it into was the prospect of litigation, not, not the reality of litigation. And, and The Center has done litigation on this.

We've got some amazing litigators, Kristen Monsell and others, who have litigated under these provisions and have tried to accomplish expanding protections. But they didn't even like rely upon any concrete thing that a judge has said a-and has invoked as some kind of like broad limitation of an oil and gas operations.

It was simply the prospect that that may happen in the future, which you could apply to anything, um, especially because the Endangered Species Act intentionally creates a broad citizen supervision. And this is one of the other actually, you know, remarkably perverse things about what they've done for people to be aware of. They've taken the prospect of litigation and turned it into a reason to create an exemption.

But Congress cr- Congress created as, as the Supreme Court itself said in another case called Bennett versus Spear, Congress created a authorization of remarkable breadth in the Endangered Species Act citizen supervision so that at any citizen could bring an action to enforce the law.

That's what Congress wanted. They've taken that and turned that authorization into a reason to grant an exemption at the end of the process. So it is really about as bizarre as you could possibly imagine, both from a kind of a conceptual standpoint, but just the, the practical implications of it are, are mind-boggling.

Mariann Sullivan: Just crazy. I w- you know, when I was looking at it, I, I, I noti- it does seem like th- this, this happened shortly after we attacked Iran. I don't know whether they were predicting what a complete debacle that would be vis-à-vis oil and gas, but do you think that's related at all? I mean, and then actually it has become more true that we're a little desperate for oil and gas, um, since they've, they've destroyed the world supply.

I- is that... Did, did that have any im- I was just curious to if th- if that had any im- impact on what they were doing here.

Eric Glitzenstein: Yeah, I think as, I think as, uh, Hegseth's determination makes some general reference to, you know, other places in the world where we don't want to be reliant upon oil, um, I don't think it specifically refers to the war per se.

Mariann Sullivan: It was pretty early days then. They hadn't totally screwed it up

Eric Glitzenstein: you know. I don't think they were necessarily predicting it would turn into the debacle it's turned into.

I think more to the point from their standpoint is like, you know, never let a good crisis go to waste. I I think

that's been true about administrations too, but I think it's like this thing that we've started, how can we rely upon the very thing we've created as a rationale for doing the other things we wanna do?

Mariann Sullivan: Yeah. So it's more of, it's really more of a follow the money kind of rationale here?

Eric Glitzenstein: I think that's exactly right. I think it's, uh, you know, it's largely pretextual. We've got our buddies in the oil and gas industry. They want to be totally unhampered in their operations. What can we come up with that will, uh, give us an opportunity to do that? Um, and again, they've got, you know, whether you consider them clever or however you wanna characterize it, they've got people whose job it is to pore over the law books, pore over the statutes, pore over the regulations, find every little place they can exploit, no matter how far-fetched, how seemingly

fanciful, how fanciful, and say, "Hey, why don't we do that?"

And even if we're ultimately gonna be struck down by the courts, in the meantime, get away with it for x period of time.

Mariann Sullivan: We can make some money. Yeah

Eric Glitzenstein: We can make some money, we can create havoc, we can create uncertainty, we can stick it to the people, you know, who are on the, quote, "other side," um, which I think drives a lot of the way they view these things.

Mariann Sullivan: Interesting.

Eric Glitzenstein: So from their vantage point, yeah. And even if we lose, we end up back where we were before, which was everybody assuming we couldn't do this kind of thing. And by the way, I should have made this clear. This is the first time... I, I mentioned before how rarely they've invoked the God squad at all. This is the first time in history they've invoked it for a national security justification. The first time they've invoked this particular provision that Hegseth is relying upon. Never before in the history of, of the Endangered Species Act. So it's equivalent to the harm definition in that way that we talked about, which is literally finding something never done before, coming up with some justification for it, and then basically trying to use that to create a gaping hole, um, in the statute's protections.

Mariann Sullivan: Mm-hmm. Alright, you mentioned that you kind of entered into the fray even before they met. Can you tell us about what happened and then what litigation is going on now?

Eric Glitzenstein: Sure. So we filed a case, basically because we had no idea what they... As I said, what even this was about, because they have been pur- uh, purposely obscure. So we actually tried to get a TRO to stop the meeting from occurring, including on the grounds that they had not even told people what was happening. Uh, the God squad provisions have, in addition to the other things I mentioned, some very broad rights of public access, uh, that, uh, have been ignored in terms of the access to all the documents of the committee, et cetera. And we relied heavily on that to say, "You shouldn't let this meeting go forward, uh, until at least there's a kind of p- uh, access that should be allowed." Um, it's hard to get a TRO, especially of Cabinet level, uh, meet- committee meeting. Uh, the district court did not stop the TRO, um, and therefore let the meeting occur. And there were now, uh, have turned that into basically a regular case challenging the exemption itself. Uh, and there are two other cases pending in the District of Columbia by other organizations, all at this point pending, um, a resolution of a motion to dismiss. Without getting too much into the weeds, but it turns out to be extremely important how these cases are gonna unfold, the government argues that these cases belong, um, exclusively in the Court of Appeals. Um, we filed our case in the district court,

Mariann Sullivan: Oh yeah, I saw that. I was wondering what that meant. Yeah

Eric Glitzenstein: Yeah. So, so there's a provision, um, in the God Squad provisions where Congress basically said that when the committee comes out with a decision at the end of the long process I talked about, that would go to the Court of Appeals in the first instance. But Congress did not say that when you bypass that entire process based upon some crazy national security thing that the Secretary of, of Defense comes up with, um, without going through any of the process, without any of the criteria being satisfied, that that goes to the Court of Appeals. So our view is, uh, that goes to the District Court. But their argument is it goes to the Court of Appeals, um, because not only do they prefer to have it go to the Court of Appeals, but basically their view is that it should go to their preferred Court of Appeals, which is the Fifth Circuit.

Mariann Sullivan: Of course, yeah.

Eric Glitzenstein: And so that's basically part of what their approach is, but our argument is the very straightforward approach for people who have studied some of these specialized statutes which talk about where cases should go. The normal case goes to the District Court. It's only the exception where Congress has said, "We want this case to go to the Court of Appeals," that you go to the Court of Appeals. And it makes sense, if you think about it, that if you go through this huge process before the committee where they could have hearings and take evidence, yeah, what do you need a District Court for?

You could go straight to a Court of Appeals. But they didn't do any of that. is a pure rubber-stamping of Hegseth's decision with no review by any adjudicative tribunal. So our view is not only did Congress not say that those kinds of things should go to the Court of Appeals, but it makes no sense for this to go to the Court of Appeals in the first instance.

We should have a regular District Court proceeding where they could take evidence, they could review whatever record exists, which we think is probably flimsy if, if not non-existent. We should be able to see, for example, who in the oil and gas industry was involved in coming up with this thing. Um, and they haven't given us any of the documents.

So we also have a mandamus claim in our case, 'cause the statute says that the committee shall make available to the public all records of the committee. it doesn't even have any of the kinds of exemptions like the FOIA has, Freedom of Information Act. So we have a mandamus claim saying we're also entitled to the documents, and that clearly also belongs in the District Court.

So we have this initial skirmish, over which court we should be in, and that's pending before the District Court of the District of Columbia. We'll see how that pans out. Um, but you know, this is gonna be o- another one of these cases raising an unprecedented issue that's gonna be basically going on for some time

Mariann Sullivan: Yeah, no, this is crazy. Uh, is this under the Endangered Species Act or under the Administrative Procedure Act or both or neither? What, what statutes are involved?

Eric Glitzenstein: Yeah, I mean, so our argument is that they have violated the entire process that the Endangered Species Act prescribes. But the claim is technically under the Administrative Procedure Act, um, because it is basically, without going into the technical weeds, um, it's refer-- the Bennett versus Spearwhat, this case I mentioned where the Supreme Court sort, sorted out different kinds of claims, uh, that you can have under, uh...

That basically involve violations of the Endangered Species Act, but some are pled under the APA, some are pled under the citizens with provision. Technically, this is arguing that there is a violation of the APA because they adopted an exemption, um, that cannot, cannot be adopted within the meaning of the Endangered Species Act. We also have a separate claim against Hegseth's national security determination, arguing that itself is an agency action.

Mariann Sullivan: Mm-hmm

Eric Glitzenstein: Especially since it was rubber-stamped by the committee, and that that is flagrantly arbitrary and capricious because there is no national security justification for this. And saying there is one because people may bring lawsuits and they may lead to some relief, that is the height of arbitrary and capricious to say that rises to the level of a national security justification.

So basically, it's just even though the issues are unprecedented, they're formulated as, as fairly straightforward APA, uh, violations.

Mariann Sullivan: You mentioned when we were talking about the other case that they intersect in some way. Can you, can you just, like if, if... Well, can you just go into that? I won't, I won't posit my bad ideas. Just tell me how.

Eric Glitzenstein: Well, you know, there's sort of the broad way in which they intersect, which is they're each trying to basically find distinct but overlapping ways of cutting out the heart of the Endangered Species Act. There are only two critical, most critical provisions. There are other important provisions, but one is this take prohibition I talked about, and the harm definition gets rid of that, then you have the Section 7 processes where, which is any agency action has to go through this consultation process with the services and lead to a determination about whether or not you will jeopardize a species or destroy critical habitat, and this is designed to create a gaping hole in that protection. So you basically have these two seemingly distinct pathways, but both are designed to basically cut out the core or try to cut out the core of those two critical provisions, and then there's a more specific way in which they overlap. One of the ironies in the take, uh, rationale is, oh, as I mentioned before, don't worry about getting a habitat through the take prohibition. We can deal with that through other parts of the statute. Well, what's one of the other parts of the statute? Oh, it's Section 7, the consultation process which results in a determination that you can't adversely modify critical habitat. Yet at the same time, they're basically cutting out a huge piece of the Section 7 process by saying, "Well, even if you're gonna destroy critical habitat, the thing we said we're gonna look to to defend, to, to protect habitat, well, that's, we can get rid of that

by declaring national security exemption whenever we want to.

So they c- you know, this is all part of a shell game to some degree, but it's not a very subtle one, where they're basically coming up with these and many other ways of basically undercutting the act, as well as just not enforcing some of the more pedestrian positions like listing species and, and, and designating critical habitat in the first place.

Mariann Sullivan: You expect them to be bringing up the God Squad more and more? Since it seems convenient

Eric Glitzenstein: You know, with these guys, um, I am loathe to make predictions. Um, anything is possible. I think we've seen that across the board. Um, they certainly seem to have the general approach of basically anything we can do, we'll do to the hilt. We don't see moderation or subtlety or anything along those lines. Now, whether they have decided to wait until they see how this one pans out in the courts before they invoke it somewhere else, I don't think we know the answer to that.

Mariann Sullivan: Mm-hmm.

Eric Glitzenstein: I think their rationale could be applied. They may have decided that, well, if we start doing it across the board when it's pending in the courts, that would make our position look even more far-fetched. But, you know, whether I'm willing to give them that level of, uh, you know, sort of foresight and strategy, uh, judgment, I, you know, I, I don't know. And as I said, the b- the only thing I can say is we have to make our decisions based upon what we know and what we can ascertain and try to take into account what may happen.

But we've learned with this administration that trying to bank on what they may or may not do, um, you know, is, is so difficult that all we can do is make the decisions based upon, you know, what's available to us at that time. And we have our hands full with the things that they have done. Um, and, uh, and that's what we try to respond to.

Mariann Sullivan: Like would there be any use of a stay in this? I mean, we don't even know what it is they're planning on doing here, right? And they already do oil and gas exploration. And I mean, is, uh, that already exists. Yeah.

Eric Glitzenstein: I mean, what, one of the things that we've pointed out, uh, when we heard they were gonna invoke this national security exception, um, we and others actually submitted very rapidly to Hegseth and to the committee as soon as we found out, a whole bunch of very, uh, specific factual information saying, "What are you talking about?

You're like doing extensive oil and gas. You've done it extensively, uh, in the Gulf for many years, if not decades. You basically got the highest production, you've had in years. So any notion that you're somehow being curtailed, uh, from doing oil and gas operations is non-existent to the factual matter," which leads into our legal argument.

And of course, they ignored that completely. So, um, there was really no factual reason for them to do any of this. Yes, it's true that having some protections for species, slowing some of the boats down somewhat to avoid hitting whales, having some other modest protection of species, maybe those would have some pretty minor effects on how they did oil and gas operations, which the oil companies would like to get rid of. Um, yes, all that is true, but the, the notion that they were somehow being seriously impaired from doing oil and gas by the Endangered Species Act or anything else, uh, you know, simply there's, there's no basis whatsoever for that.

Mariann Sullivan: I guess there's no point in trying to figure out what they're thinking because we've all wasted too much of our lives doing that. Uh, all right. Anything else I should ask you about this? And I do wanna ask you very briefly to go out, to tell us if there's anything else going on, 'cause I know there's a lot of other things going on.

But, um, first, should I have asked you anything about the God Squad case that I didn't?

Eric Glitzenstein: No, I think you've, uh, you've brought up everything. Um, you know, we've got to get through this, uh, jurisdictional hurdle. We'll see how that goes. Um, and then, you know, we'll see how the rest of the case pans out. Um, but I think we've touched on what the major issues are. And, uh, you know, obviously if people are interested in more about the pleadings or any of that stuff or the briefs, uh, you know, those are available, but I'm also happy to, uh, to make those available to people. Um, and yeah, we'll just have to see how that one pans out. So I think we've, I think we've covered that one pretty well.

Um, in terms of the other things, one of the ironies of this conversation, um, is that if we had basically not talked about either of the things we just talked about, but just talked about all the other ways in which they are going after the Endangered Species Act, we would have had more than an hour to talk. These are the huge ticket items because they're literally unprecedent- unprecedented, but they're also dismantling the act in other important ways, even though not as sort of eyebrow-raising as these. But they're doing things like trying to inject economic considerations into the consideration whether to list species in the first place, even though the law makes that completely illegal. Um, they're coming up with other ways of not designating critical habitat in the first place, which is really significant. Um, they've cut back on the protections for threatened species compared to endangered species. Um, and all those things are in the works, and some of that we've already challenged. Um, and then the other thing that they've done is basically just hollow out the agencies.

They have like made it so difficult for these agencies to do their job. Um, they're not listing species anymore. Um, a combination of just political resistance to listing any new species or just basically not having the personnel available to do it any longer. Um, so again, even if we were just left with the sort of more, I don't know how you wanna put it, routine, ordinary ways you might think an administration might go after an act like this, there would be more than enough to talk about. But those have to some degree, uh, in the public consciousness, I think take-- have been overtaken by these really sweeping changes that have even more far-reaching effect. But it's important for people not to assume that's all that's going on.

There are lots of other ways in which they are, uh, at a time when, you know, species are as just as imperiled, if not more so, than ever in the history of the act. They're coming up with many other ways of, um, kneecapping the statute and making it impossible if not, uh, make, make it difficult, not impossible to implement.

Mariann Sullivan: Well, on that cheery note, um, how's the morale in your office? How, how are people holding up?

Eric Glitzenstein: That's a really good question. Um, I was talking to people about that earlier today. Um, I think people are doing okay. I think the, one of the advantages, if you might wanna call it that, is having the ability to fight back, and I think people are seeing this in many other contexts.

Um, as bad as it is, knowing that, you know, you can fight back, um, knowing that there are tools that you can use. Um, the way I personally approach it is if I take a step back and think about... I mean, I tried to litigate under the statute, you know, for many, many years. if I think too much about the wholesale impact, it could be overwhelming, so the best thing to do is to think about what we can do today to, uh,

to respond. Um, and those are the only things within our control. So I would say, um, the morale is as good as you could hope that it would be, um, because people feel very strongly about... You know, this is true about throughout the animal, uh, community, conservation community. Um, you know, feel obviously incredibly strongly about protecting what we can protect. Um, and if you keep your focus on what can we do in an incredibly difficult environment, um, it's like going into war. Um, and how do people get through a war?

How do people in impossible circumstances... I don't want to compare it to a literal war, what people get through, but you get through it by figuring out what, what can you do on that day

You just have to fight back and make things better and try to set yourself up for something in the future, and I think that's, that's the morale I think, uh, our folks, incredibly impressive to me, have maintained. Um, and that's what I, you know, that's what all I can, like, sort of try to convey to everybody fighting these battles, is try to do it that way and think about it that way.

Mariann Sullivan: Yeah. No, that, that's very inspiring. It really is. And, uh, and what can people do to support you? Obviously they can donate, um, uh, and that's important. Anything, anything else? I guess, you know, I, I, I think that people who even who don't do this for a living, it's really important to try to, try to educate yourself so that you can communicate what's going on.

'Cause I, I do think this is one of those things that's flying under a lot of people's radar just because there's so much going on.

Eric Glitzenstein: Yeah, I mean, on so many levels and in so many way, areas that people care about and affect people's lives, so it's so hard. Um, but I think you touched on it. I think educating, um, yourself, being able to convey it to other people in fairly straightforward terms. I mean, yeah, there's a lot of complexity to these things, but s- some of they're pretty basic that I think people have gotten.

It's like, wait a second, habitat destruction is no longer a violation of the Endangered Species Act? People get that. Uh, there's something called the God Squad, which by the way, it's wonderful that it has that name 'cause it attracts people's attention, that suddenly Pete Hegseth could, like, declare anything...

Mariann Sullivan: He's the god?

Eric Glitzenstein: You know, some of that stuff could be distilled down to some pretty, you know, straightforward terms, and I think making sure people know, um, we have an election approaching and obviously, you know, a lot of peop- things that people care about, but trying to inject this stuff into the public discourse, uh, while the elections approach.

I mean, there's so many issues that people care about, but some of this stuff that people have cared about for years and decades, protecting animals, protecting wildlife, protecting species, trying to, like, letters to the editor. Um, you know, whatever the discourse can be so that people are aware of this stuff and in getting it out into...

So whatever happens in November, um, so that it basically stays on the radar after that. Um, and people are basically following up in whatever ways they can with officials, but on the local level as well. And the other thing to keep in mind is, as we cut back these federal protections, it makes it all the more important that state and local protections come into play and are enforced. And so if people can basically look to what they can do on the state and local... I mean, the response to data centers has been an amazing thing to watch, and it's got so many dimensions to it. But some of that is basically destruction of, of ecosystems and habitat. It hasn't gotten as much attention as some of the other features, but what it highlights is that people can have an effect on a local level and a state level.

So think about ways you could put pressure on local officials to care about these things and to take steps they can take. So I think there are ways in which people can, as I say, you know, on whatever level you're operating, in whatever way you're operating, not just to throw up your hands and say, "Oh, there's nothing we can do.

Hope is lost." It's understandable but I unfortunately think, you know, too easy a response. There are things we can do, and whatever way you can do it, I, you know, encourage people to, to think about creatively and band together with other people and, and take those steps.

Mariann Sullivan: Well, I, I mean, talking about banding together and taking those steps, I do have an announcement I wanted to give people before I let you go. Doesn't have anything to do with the endangered species or even endangered animals. Actually, they're very endangered animals, but their species is not. And, uh, so if you're listening to this on the day it comes out, you only have one more day.

You're f- if you're anywhere near North Rose, New York, which I am near, or you can get there, be there tomorrow for the final day of the 207-mile March to end animal testing and the convocation outside Marshall BioResources, where tens of thousands of animals are suffering. And this is, you know, this is one of those things where people are getting together and, and there's a lot of different issues that I think people are beginning to stand up and recognizing that things are gonna change, and let's, let's make sure that animals are included in, in those changes that are gonna happen.

So you can find out more about that for marchforanimals.org/marshall-protest. And for now, I just have to thank you, Eric, for joining us today. This was really remarkable. I understand so much more than I did. It's depressing, but it was really, really useful. And kinda depressing, but also kind of like when you hear how ridiculous their arguments are, it's kind of reassuring.

So thank you for that, and thank you to Vicki Beechler for her help in producing the podcast. Please remember to subscribe, like and comment, and we'll see you next time.

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