Next week, lawmakers will vote on a measure intended to update the regulatory framework that burdens property owners and conservation efforts.
The Senate is set to review a cross‑partisan permitting agreement that promises to simplify how projects are built across the United States. From mining operations and pipelines to power lines and renewable-energy ventures, the Bipartisan American Affordability and Jobs Act (BAAJA) would trim back the regulatory thicket that slows development and drives up costs for sensible initiatives.
While much attention has focused on reforms to the National Environmental Policy Act, the bill’s provisions for the Endangered Species Act (ESA) are particularly promising in helping the law meet its aims while reducing unnecessary barriers to infrastructure, energy production, and economic growth.
More than five decades after its passage, the ESA has struggled to realize its fundamental objective: rehabilitating endangered species so they no longer require federal protection. Meanwhile, its regulatory requirements can deter conservation and create costly uncertainty for landowners and businesses.
A 2023 analysis by the Property and Environment Research Center found that only 3 percent of species listed under the ESA were delisted due to recovery. That represents 57 of 1,732 species over the law’s first 50 years. At the same time, the ESA’s costs are substantial. Federal agencies spend hundreds of millions of dollars each year administering the statute, but those outlays capture only a portion of its broader economic burden. The costs associated with delayed projects, restrictions on private property, and regulatory compliance remain largely unmeasured.
A central flaw in the ESA is the ambiguity surrounding its application. The statute requires federal agencies to rely on the “best scientific and commercial data available” when deciding on protections. However, Congress has never clearly defined that standard, leaving agencies with broad discretion to determine what evidence suffices, and courts frequently defer to those judgments.
Take the Delta Smelt, a small fish typically no more than three inches long, native to California’s Sacramento–San Joaquin River Delta. This compact species created substantial headaches for California farmers. In a 2008 biological opinion, the U.S. Fish and Wildlife Service (FWS) concluded that two major water projects delivering water from the Delta to California’s agriculture-heavy Central Valley needed to dial back operations substantially in order to protect the endangered fish.
In practical terms, federal protections for the Delta Smelt meant restricting water deliveries to farmers in one of the nation’s most productive agricultural regions.
Yet, the scientific basis for that decision raised serious questions. The FWS’ biological opinion imposed onerous water-pumping restrictions when smelt captured in the pumps reached a certain threshold, without accounting for the species’ overall population. This departed from standard industry practice, since raw numbers alone provide little context for assessing threats to a species without population data. When challenged in court, the Ninth Circuit Court of Appeals found that FWS had deviated from standard scientific methodology. Nevertheless, it upheld the agency’s approach, deferring to its determination of the “best scientific data available.”
The Delta Smelt controversy highlights a major weakness of the ESA: when Congress leaves a key scientific standard undefined, agencies can, and often do, exercise broad discretion over decisions affecting water supplies, private property, and economic livelihoods.
BAAJA would address this issue by establishing clearer scientific standards for such decisions. The bill defines best available science as “all relevant and objective scientific and commercial information available at the time of the agency action.”
It would also set criteria for evaluating scientific evidence, including whether models account for potential errors and employ accepted professional methods. These requirements would render ESA-related decisions more transparent and easier to evaluate, and would prevent agencies from placing an undue emphasis on selective data when assessing scientific evidence.
The legislation would also strengthen the role of states. State wildlife agencies often possess extensive population data and local expertise, yet federal decision-making does not always adequately incorporate their findings. BAAJA would oblige federal agencies to consider specific scientific information provided by states and create pathways for qualified states to conduct certain ESA consultations.
Perhaps most importantly for project developers, BAAJA would shorten the standard timeline for formal ESA consultations from 90 days to 60 days.
These consultations are required when federal projects may adversely affect protected species or their critical habitat. They can impact everything from mining operations to roads and energy infrastructure.
A 2015 study published in the Proceedings of the National Academy of Sciences found that roughly 20 percent of formal ESA consultations exceeded the applicable 135-day regulatory timeline. Some of them dragged on for years.
Shorter deadlines won’t eliminate every permitting delay. But they could help prevent prolonged reviews from creating unnecessary uncertainty and expense for businesses seeking to invest in American infrastructure.
Taken together, the proposed reforms would render ESA administration more transparent, predictable, and efficient while preserving its conservation responsibilities.
After more than half a century, Congress has an opportunity to reform the ESA to ensure it serves both wildlife and the people whose cooperation is essential to conservation. Protecting endangered species and enabling Americans to build, invest, and develop natural resources should not be mutually exclusive goals. BAAJA offers Congress a chance to move toward a framework that better achieves both.
