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TOM WHEELER:

Welcome to the Econews Report. I'm your host this week, Tom Wheeler, executive director of EPIC, the Environmental Protection Information Center. And joining me is my friend and colleague, climate attorney here at EPIC, Matt Simmons. Hey, Matt. And we are also joined by Jen Marlow, professor of environmental law at Cal Poly Humboldt. Hey, Jen.

JENNIFER MARLOW:

Hey, Tom. Hey, Matt.

WHEELER:

All right, and I'm also glad that we are joined by Scott Greacen of Friends of the Eel River. Hey, Scott.

All right, so if we have this cast or crew on, you know that it's gonna be a Law Nerd episode of the Econews. And if you are tracking the news, you'll know that Trump invoked the Endangered Species Committee, also known as the God Squad, recently for oil and gas efforts in the Gulf of Mexico. So we are going to break down what this means and the potential risks for here in Northern California.

So I think at the very beginning, we should have an understanding of how the Endangered Species Act works. And I imagine that throughout this conversation, we will probably forget to say the Endangered Species Act and instead say the ESA. So you'll know, dear listener, if we say ESA, that is the Endangered Species Act. So would any of you like to do a bare bones explanation of the different sections of the ESA and how they interplay with each other? Or I'm happy to.

All right, well, I will go then. So fundamentally, the ESA is based around this prohibition against taking. Taking is broadly defined to mean things that harm, harass, wound, trap, capture, or attempt to engage in any of those sort of activities of any endangered species. And many threatened species too, but we'll forget about that for now.

So everybody is prohibited from this activity. The federal government is prohibited from taking. Private individuals are prohibited from taking. Corporations are prohibited from taking an endangered species. So this can include things like, here in the Pacific Northwest, cutting down the forest that a marbled murrelet uses for nesting. That would be a prime example of harming murrelets by habitat modification. It could also include things like shooting a species, like a gray wolf, to the extent that gray wolves still have protection under the ESA. Or it could include things like oil and gas development in the Gulf of Mexico, where there are ship strikes on endangered whales, or there are oil and gas leaks that also impact endangered whales.

So if you're prohibited from doing all these activities that may harm or harass or kill, wound, trap, capture an endangered species, that might cause some sort of economic backlog, some sort of economic damage. And Congress thought about this. And so there are various ways to exempt yourselves from the takings prohibition. You can get a habitat conservation plan and associated incidental take permit if you are a private timber company like Green Diamond Resource Company or Humboldt Redwood Company. Both have incidental take permits for northern spotted owls. If you're the federal government, you can go through section seven of the ESA and go through this thing called formal consultation where you talk with the U.S. Fish and Wildlife Service and the U.S. Fish and Wildlife Service makes recommendations for how you can reduce the impact of your activities. And you can also get an incidental take permit.

But there is a backstop on all of this. There is a point by which the U.S. Fish and Wildlife Service cannot allow you to continue to engage in this activity. And that is if you are going to jeopardize the continued existence of the species. So here is kind of a firm line or was a firm line in the ESA when it was passed. And then in 1978, Congress amended the ESA and said there may be certain circumstances under which we think that it is more important to allow for some sort of economic activity than the prevention of the extinction of a species. And we will create an exemption for this jeopardy standard. And that is the Endangered Species Committee. Matt, do you wanna talk a little bit about the Endangered Species Committee and its composition and how it's supposed to work under the law?

MATT SIMMONS:

Yeah, the Endangered Species Committee -- Tom called it the God Squad earlier, I also like Extinction Committee -- is made up of six permanent members. The members are the Secretary of the Interior, the Secretary of Agriculture, the Chairman of the Council of Economic Advisors, the Administrator of the Environmental Protection Agency, the Administrator of the National Oceanic and Atmospheric Administration, and one representative from each of the, from the applicant. And in this case, we actually didn't have a normal applicant, we had the Secretary of Defense, Pete Hegseth, as the applicant.

And so essentially, the purpose of this God Squad, or this Endangered Species Committee, is for all these important high-ranking officials to get together and analyze the economic, or in this case, national security threat posed by the continued existence of the species, and to decide to allow the extinction, to create an exemption to the Endangered Species Act, and decide to allow the activity to continue in order to do this. Now, if you're wondering why this sounds archaic and weird to you, it's because the committee has only ever been called three times before this week, and in two of those three cases, the committee actually decided not to allow the extinction of the species.

WHEELER:

No, I will do a clarification there. One time they did not allow, that was the Tellico Dam. The second time with Northern Spotted Owls, a court intervened to prevent the God Squad because they said that the God Squad unfairly colluded with the president and that contaminated the reasoning of the God Squad. But the committee did allow for another dam, I think in Montana, that would have impacted whooping cranes. So rarely invoked, invoked three times, two times in the late 1970s and one time in the early 90s.

MARLOW:

I was just going to say, maybe it'd be useful to just share how it got created. So after the Tennessee Valley Authority versus Hill case, which decided that this two-inch snail darter, whose critical habitat was the Little Tennessee River, would be critically threatened and this big dam on the Little Tennessee would jeopardize the existence of this little fish, after the Supreme Court held in favor of the snail darter in this particular case, there was a huge victory in the courts under the Endangered Species Act under Section 7, as Tom mentioned.

However, after this huge court victory, there was a backlash in the press and there was all this negative media about how this silly little fish would cause this huge dam to basically come down or to be canceled. And so that's why Congress amended the Endangered Species Act in 1978, directly following this Supreme Court decision. And I think it's just an interesting historical fact that we have this exemption process. However, there are all these procedural mechanisms that the God Squad or the Endangered Species Committee are required to follow under Section 7H1.

So just to say that they do have a rigorous process that is required to be conducted under adjudicatory hearings, where they have to determine, like, there's no reasonable and prudent alternative to the action. There's benefits to the action must clearly outweigh the alternatives that don't increase the risk of extinction. All of these have to be met. The proposed action has to have national or regional significance and be in the public interest. There shouldn't be an irreversible commitment of resources. And also, the order granting the exemption has to cover mitigation measures that are necessary and appropriate to minimize the adverse effects of agency action on the endangered species or the threatened species or the critical habitat. So there's all this need to provide sufficient justification. And this was what Congress intended for. And if you look at the actual procedures enlisted in the ESA, it goes through this very rigorous process.

So I think that, yes, we've had these three convenings, but they've all been conducted under this rigorous measure with opportunity for public experts, for scientists to have essentially evidentiary based hearings on the matters. And in this case, we should talk about how the God Squad met basically behind closed doors in contravence to the procedural requirements of the ESA. It was posted on YouTube because they cited the federal government cited a security threat to convening this meeting in the public. So I think that's just another interesting layer to the history.

SCOTT GREACEN:

Yeah, I was just gonna tag on to Jennifer's history that my own engagement with the God Squad in the Northern Spotted Owl context came in the context of the field hearings that were held for that process, including one in Portland. That was a very, very big deal at the time. And the idea that we're running this process without any public input is completely contrary to the way that it's supposed to work.

WHEELER:

Yeah, so that's a wonderful point. So in the 90s, when we did this, there were experts who came to testify. There were hearings. There were public meetings. It was it was an involved process. Ultimately, it was a 5-2 vote to approve the exemption. Later, it was overturned in a court case and the exemption never took place. But the H.W. Bush administration really took the invocation of the God Squad there somewhat seriously. By contrast, here, Pete Hegseth asked the secretary of the interior to invoke the God Squad for some sort of oil and gas development. Didn't really explicitly say what particular oil and gas development, but just broadly oil and gas exploration activities in the Gulf of Mexico. And instead of doing these sorts of expert convenings and having administrative law judges involved in doing like evidentiary based hearings, we just had seven members of the federal government all appointed by by Trump get together and make little speeches on YouTube. It's quite quite a distinct difference from the way that earlier God Squad applications have occurred.

GREACEN:

I think this is what we call the energy dominance agenda, fossil fuel dominance agenda. The Secretary of War invoking national security to proceed with unspecified unlimited future development of the Gulf of Mexico in the name of energy supplies while we are shutting down the Gulf of Hormuz, there's some contradictions there.

WHEELER:

Yeah. Yeah. Well, and I believe that the God Squad was actually invoked prior to our illegal war in Iran, wasn't it not? So we didn't quite have the same exigency as we might have now, but, you know, it's one of all of the administration's own creation too. Yeah, Jen.

MARLOW:

Pete Haggis ... I can't say his last name, Haggis ...

GREACEN:

Rhymes with peg stand.

MARLOW:

He just issued findings, and it was interesting, of 16 pages, and they're highly speculative and generalized, I think, as you've all alluded to, but there's very little level of specificity in the findings. And also, there's a note in there that says something about, it just contradicts earlier public statements, the downplayed risks associated with the disruptions in the Strait of Hormuz, where he had previously said, we don't need to worry about that, we don't need to worry about the closure of the Strait, and related energy shocks, but this exemption in the findings basically states just the opposite of that, arguing for the chilling effect of ESA litigation on national security, basically on oil prices, rather than citing any kind of concrete impacts. So we see this direct contradiction, even within this finding, that this war in Iran, we're not going to be subject to, we don't need to worry about these things, and yet now we're trying to use this mechanism, this elephant in a mouse hole, to basically allow fossil fuel to be operating without any regulation in the Gulf.

WHEELER:

So, we've talked about how this has differed significantly from previous invocations of the God Squad, and that it didn't kind of follow the procedural requirements outlined in regulations interpreting the Endangered Species Act. There is a section of the ESA that has an exemption for national security. So I will read it in full. Notwithstanding any other provision of this chapter, the Committee shall grant an exemption for any agency action if the Secretary of Defense finds that such exemption is necessary for reasons of national security. So this is seemingly what is happening here. And we've seen a reticence from courts to question the federal government when it invokes issues of national security, that this is somehow in the exclusive avenue of the executive branch.

SIMMONS:

Well, I can just give one recent contradictory example. When the Trump administration issued stop work orders on five offshore wind projects on the East Coast, because as we are trying to drill as much oil in the Gulf as possible, we're also trying to stop domestic renewable energy production. One of the reasons given was national security concerns. And then on top of that, they said that the national security concerns were confidential, and that they couldn't actually publicly state what the concerns were, but we're just gonna shut them down anyway. The developers, as well as the several states, sued to get the projects restarted. The judges were shown confidential descriptions of what the national security concern was in that case, and the judges actually still found that concern to be arbitrary and capricious. So we do have a recent example of district court judges directly contradicting the national security argument for offshore wind. It'll be interesting to see whether or not judges are willing to do the same thing for offshore oil.

WHEELER:

You are listening to the Econews Report. We're talking about the God Squad and Trump's invocation of it to allow for oil and gas development to result in the extinction of endangered species in the Gulf of Mexico. And zooming out, if we look at all of the cases that have been brought against the Trump administration, especially related to ICE enforcement, that the presumption that the federal government is operating under the law that used to exist is seemingly disappearing or seemingly disappearing for a certain slate of judges. There are, of course, all the federalist judges, many of whom were appointed by the Trump administration, that, like Judge Eileen Cannon or whatever her name is out of Florida, that are overly deferential to the Trump administration. But it seems that there are certain judges that look at this Trump DOJ, that look at this federal executive branch and say that they are no longer worthy of trust. Yeah, Scott.

GREACEN:

I just want to put a point on that, Tom, because you're talking about the presumption of regularity, which is judges' assumption that when lawyers speak for the government and officials speak for the government, they're speaking in good faith on the basis of facts known to them. And it is being overturned, really, inverted into what's increasingly, in many contexts, a presumption of irregularity. And I don't know how to exaggerate the importance of that, that courts are having to assume that government officials are lying to them. But it is the inevitable outcome of this administration's practices, and it's going to make things extremely difficult for environmental arguments in the future, because we have always been able to proceed on the basis of a pretty simple formula. The government says X, but it also says Y, and those two things can't be true. But when everything the government says is subject to this level of deep skepticism, for good reasons, then it becomes very difficult to establish what the reality actually is. So I'll just leave it there.

WHEELER:

We're in the post-truth world. What was that thing from the first Trump administration? Alternative facts? Jen?

MARLOW:

I was just going to say, maybe we could talk about that exemption a little bit because one of the words you used was action, any agency action, right? So can you read that again? Because I think that's an important hook here, whether or not the administration is lying, we also have no agency action to base this exemption upon, which I think is an important point we should make.

WHEELER:

Yeah, so the language is the committee shall grant an exemption for any agency action if the Secretary of Defense finds that such an exemption is necessary for reasons of national security. So yeah, here, what is the action that is being contemplated? As I understand it, it's just a kind of a generally broad, like oil and gas development in the Gulf, not any sort of discrete, articulable action. Am I wrong?

MARLOW:

No, you're right. There's also a Section 782 consultation, as we talked about earlier, and the Secretary in that found that, yes, there was a jeopardy finding. Yes, these activities, oil and gas activities in the Gulf could jeopardize the existence of a threatened or endangered species and adversely modify or destroy the critical habitat. And yet the NMFS, the National Marine Fisheries Service, in the biological opinion that was produced as a byproduct of the consultation or as a requirement of the consultation, notified the government that there was reasonable and prudent alternatives. So there was a jeopardy finding by the National Marine Fisheries Service. And at the same time, there are reasonable and prudent alternatives to mitigate the impacts to the species that were provided in the biological opinion.

And so we don't really have a reason for the exemption. We have a jeopardy finding with adverse impacts, yet mitigation measures that are prescribed by the overseeing agencies. And so the real question is, like, there is no action upon which the exemption is, like, hitched to. We don't have the agency saying there's no reasonable and prudent alternatives. They actually specify those, and I think there's a 2020 and a 2025 biological opinion. And so that's the other issue here is, like, procedurally, there's no, there's, like, that's, like, the biggest threshold question that this national security interest just completely ignores. And so the question is, what is the bounding principle? If national security is a carte blanche, get out of jail, free card, then, like, well, where are the boundaries extend toward? We don't even know legally what national security even means.

WHEELER:

I want to point out that one of the reasonable and prudent alternatives is a ship speed limit in the Gulf of Mexico for activities related to oil and gas, because ship strikes are one of the ways that Rice's whales, which are one of the species invoked here, are killed, routinely killed. I showed ship strikes are one of the major forms of mortality for whales across the United States from East Coast, West Coast. And just to point out, for offshore wind development, we already have speed limits for boats related to offshore wind development. So it's not as if this is not a thing that already exists or can't be done. Matt, and then after Matt, I think that we should turn ourselves to looking at the implications for other areas like dams in the Pacific Northwest or maybe forestry. Matt.

SIMMONS:

Yeah, just on the topic of what the action is, it's funny, I watched the committee meeting, which was posted on YouTube. And so if people are curious to see how our federal government currently works, you can watch these clowns.

WHEELER:

They don't.

SIMMONS:

which they referred to the threat of litigation essentially as the threat that they were trying to stop here. And so it's not even, oh, we can't do the ship speed at that speed. We won't get the oil fast enough to win the war, right? They made the argument that the litigation was the threat that they needed to preempt by issuing this exemption. And so it's like this tortured logic of we think you might sue us and therefore we're gonna exempt the protections for the species and therefore we're gonna do it in the broadest way possible for these nebulous national security reasons. It's just, it's hard to take it seriously, frankly.

WHEELER:

Yeah, well, and assuredly, this is going to be litigated. The Center for Biological Diversity, among others, are already litigating parts of this, and I'm certain that this will make its way into higher court cases, and we'll be back talking about court rulings later in a future Law Nerds episode of the Eco News.

But let's talk about how this might be applied here in the Pacific Northwest. So in the early 90s, as we talked about before, the Bureau of Land Management in Western Oregon had a jeopardy finding for timber sales on their lands, and H. W. Bush administration invoked the God Squad, which passed an exemption for these timber sales, but was reversed by a court case. I could see something similar happening here on the West Coast. The Bureau of Land Management has announced that it is reopening its Western Oregon resource plans, so for the forests that it manages in Western Oregon, the ONC lands, Oregon and California lands, these are Doug-fir forests that the timber industry wants to significantly cut more timber out of, including large old trees, and the effect of this logging together with the synergistic impact from barred owl invasion would likely mean the extinction of the northern spotted owl, and so we might get a jeopardy opinion there. I think the Trump administration is actually looking for a jeopardy opinion so that they may be able to invoke the God Squad, so that's something that I know folks in the forest defense community are watching intently and are worried about.

Scott, I imagine you are my fish guy. Do you have any thoughts about how it might be invoked related to dams, dam removal, fish, and issues in your kind of waters of the Pacific Northwest?

GREACEN:

There's nothing obvious immediately to me, but the broad scenario that you guys have been sketching with respect to DSA is generally applicable. We have jeopardy findings for, for example, Chinook and Steelhead in the Eel River tied to the operation of the Potter Valley Project. Broadly speaking, most of the salmonids on the West Coast are listed and are subject to various pretty serious impacts that the Trump administration would like to accelerate.

WHEELER:

Correctly. You know, in the Klamath, we have the Bureau of Reclamation radically giving away water to irrigators and predicting extreme low flow for this summer as a consequence in the Klamath where we had a similar fish kill in 2001. People are worried about a fish kill like that this year. So it might be invoked in something like that. Matt.

SIMMONS:

Yeah, so on day one, Trump issued over 100 executive orders, and one of them actually directed the Endangered Species Committee to meet quarterly and to just keep constantly coming up with new species to exempt from the Endangered Species Act. They haven't been doing that because they've been busy deregulating all sorts of other environmental protections.

WHEELER:

And that's also not how the Endangered Species Committee...

SIMMONS:

They were tripping over themselves to exempt the right whale from these protections. I think if they like how this goes, and if Donald Trump likes seeing it on TV or whatever, I think we should be expecting more of this kind of stuff. The other thing I'll note is there was a timber targets executive order, and that also mentioned invoking the God Squad in case any forest species were preventing timber production. So that's a real specific Northwest one to look out for.

WHEELER:

Yeah, so we are also likely to see, or potentially might see the Endangered Species Committee being invoked related to Northwest Forest Plan amendments. So the Biden administration started to amend the Northwest Forest Plan, didn't get it completed before the conclusion of their term, and it was passed off to the Trump administration. The Trump administration has announced that they didn't like what the Biden administration was doing, and so they're going to reopen the amendment process to the Northwest Forest Plan, and a lot of folks are anticipating that that is going to be significantly more timber-focused, a reduction in set-asides for late successional species like the Northern Spotted Owl, or Marbled Murrelet, or Coho Salmon. So it could get real, real ugly. Whew, Scott, do you have any further thoughts?

GREACEN:

I think it's going to get real ugly. We've got another couple of years of this, and every indication is that this administration wants to continue to try to stress test all the guardrails, so.

WHEELER:

I mean, maybe we could look at history and find a point of comfort, which was the Bush administration attempted to use this in the early 90s and had a much more robust process and yet still was found to have violated the law by the Ninth Circuit. And it seemed that that had a chilling effect on future administrations from attempting to use the God Squad. So perhaps this goes down in flames and the Trump administration realizes that this is not worth it.

GREACEN:

I mean, putting a lot of weight on a federal judiciary that has substantially decayed, I think, in terms of its integrity and ability to address environmental issues over the last two decades. So pause from there.

WHEELER:

Certainly, certainly. It is me desperately searching these dark clouds for any sort of a silver lining.

GREACEN:

Optimism is an ethic, but we owe it to our movement not to go out onto thin ice.

SIMMONS:

An alternative, which is that the Endangered Species Act remains incredibly popular. There was polling done in 2025 that found that 84 percent of Americans supported the law. And while we still have a democracy, I think it's important for people to share that they are opposed to this, that they're outraged by the idea that Pete Hegseth alone can decide the fate of species, and that this is not how our country is supposed to operate.

WHEELER:

Well, and we have midterm elections coming up in 2026, which will maybe put another check on the Trump administration's now kind of unbridled power, having controlled of the three different branches of government through their appointments to the judiciary and through controlling both the House and Senate and the executive. So there is an opportunity for Americans to have a check on this administration soon, not soon enough. All right, well, friends, do we think that we have this adequately covered? Think so, all right.

MARLOW:

I think one thing just to mention is that there's over 30 species listed in the Gulf of Mexico. So we've focused a lot on the rice whale, but we should also give an honor that this exemption would apply not just to the rice whale, but to multiple dozen, 30 different species. And you can think about the oil and gas lease proposals for our coast and all the potential, all the possibilities that this same process could be used with the same national security justification on our coast where we have migrating Pacific humpbacks that are listed and multiple other species listed that would be impacted. So I think there's going to be multiple regions sacrificed for national security and we can't overlook ours.

WHEELER:

That's a good point. Well, thank you to all my law nerds here, Jen Marlow, Scott Greacen, Matt Simmons. Join us again listeners on this time and channel next week for more environmental news from the North Coast of California.