Pit Bull or Paper Tiger? The Endangered Species Act on Private Lands

• Pages: 46-58
• Date: 01 March 2026
• Published date: 01 March 2026
• Author: Melinda E. Taylor
• Subject Matter: Administrative & Public Law

ARTICLES

56 ELR 10130 ENVIRONMENTAL LAW REPORTER MAR/APR 2026

PIT BULL OR PAPER TIGER?

THE ENDANGERED SPECIES ACT

ON PRIVATE LANDS

by Melinda E. Taylor

Melinda E. Taylor is a Distinguished Senior Lecturer at the University of Texas School of Law.

Among the dozens of executive orders President

Donald Trump signed during the rst few days

of his second term were two that have poten-

tial to dramatically shift the regulatory landscape for

endangered species. First, in Executive Order No. 14156,

Declaring a National Energy Emergency, the president

directed federal agencies to treat certain energy devel-

opment projects subject to the Endangered Species Act

(ESA)1 as emergencies,2 a class of federa l actions that the

applicable regulation describes as “acts of God, disasters,

casualties, national defense or security emergencies, etc.”3

1. 16 U.S.C. §§1531-1544.

2. Exec. Order No. 14156, 90 Fed. Reg. 8433 (Jan. 29, 2025). e Order

denes “energy” or “energy resources” as “crude oil, natural gas, lease con-

densates, natural gas liquids, rened petroleum products, uranium, coal,

biofuels, geothermal heat, the kinetic movement of owing water, and criti-

cal minerals. ...” It does not include renewable energy sources, such as

wind and solar power. Id. §8(a).

3. 50 C.F.R. §402.05(a) (2024).

Executive Order No. 14156 directs federal agencies to treat cer tain energy development projects subject to

the Endangered Species Act (ESA) as emergencies; Executive Order No. 14181 will likely eliminate the safety

net for species in the San Francisco Bay-Delta ecosystem. These policies are the culmination of decades

of erosion of protection that the ESA provided, which is especially apparent on private lands. This Article

focuses on factors behind the Act’s waning power on private lands: lack of enforcement and the high bar to

prove “take” caused by habitat modif‌ication, the inconsistent use and uncertain impact of habitat conserva-

tion plans, and successful efforts by industry to defeat decisions to list certain rare species. It describes the

cases of the lesser prairie-chicken and dunes sagebrush lizard, two species that illustrate the political, legal,

and practical challenges of protecting species whose habitats overlap with powerful economic interests.

SUMMARYSUMMARY

Treating all fossil energy projects as emergencies means

they will be subject to a streamlined, much less rigorous

review process than other federal actions, with the likely

result that fewer measures to mitig ate project impacts will

be required of developers.4

Second, the president took a sledgehammer to protec-

tions in place for endangered species in California that are

imperiled because of diversions of water through the state’s

complex delivery system that transports water from the

northern, water-rich part of the state to the dry Central

Valley and L os Ange les.5 In Executive Order No. 14181,

Emergency Measures to Provide Water Resources in Cali-

fornia and Improve Disaster Response in Certa in Areas, the

president directed the Secretary of the Interior to “override

existing activities that unduly burden eorts to max imize

water deliveries” through the Central Valley Project and

4. Id. §402.05 (2024). e regulation related to emergencies requires that for-

mal consultation be initiated “as soon as practicable after the emergency is

under control.” Id. §402.05(b). It is unclear whether or how the Adminis-

tration will comply with this provision, however.

5. e Central Valley Project and State Water Project are huge water delivery

systems operated by the federal Bureau of Reclamation that divert water

from the Sacramento, San Joaquin, and Feather Rivers to farms in the Cen-

tral Valley and municipal users in Los Angeles. For years, the projects have

been required, because of the ESA, to ensure that several endangered spe-

cies, including the Delta smelt and chinook salmon, receive a minimum

amount of water to enable them to survive in the San Francisco Bay and

Sacramento-San Joaquin Delta.

Editor’s Note: The author represented Common Ground

Capital, a conservation banking f‌irm, for many years in

matters related to the lesser prairie-chicken. In that capac-

ity, she drafted comments on the second proposed listing of

the species and various other matters related to the West-

ern Association of Fish and Wildlife Agencies’ administra-

tion of the range-wide plan for the bird. She also drafted a

motion to intervene in the federal case that challenged the

second listing of the bird, which was denied by the court.

Copyright © 2026 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, https://www.eli.org