Biodiversity degradation is an existential crisis playing out right now in front of our eyes. Less than a week before the effective date of the uplisting of the northern long-eared bat from threatened to endangered under the Endangered Species Act, the U.S. Fish and Wildlife Service extended that effective date by 60 days, from January 30, 2023, to March 31, 2023.

Responding to the complexity of biodiversity degradation, the extension, at the request of Congressional leaders was to allow the FWS more time to finalize conservation tools and guidance to avoid disruption for owners of land across the incredibly large area of potential critical habitat of the northern long-eared bat that includes 37 states in the eastern and north central United States, the District of Columbia, and all Canadian provinces from the Atlantic Coast west to the southern Northwest Territories and eastern British Columbia.

Since 1970, populations of mammals, birds, amphibians, and fish have decreased by an unbelievable 68%. The is no question that existing government regulation in the U.S. has been completely ineffectual in impacting biodiversity degradation.

The rule reclassifying the northern long-eared bat from threatened to endangered under the Endangered Species Act was published in the Federal Register on November 30, 2022; the bat remains protected as a threatened species with a 4(d) rule until the reclassification becomes effective on March 31. The northern long-eared bat was listed as threatened in 2015.  It now faces extinction due to the impacts of white-nose syndrome, a deadly disease affecting hibernating bats across North America, and as admitted in that Federal Register posting not made better by being listed as threatened by U.S. law.

To not limit human activity that could “harass” or result in an unintentional “incidental take” including in industries ranging from wind energy to bridge infrastructure rehabilitation as well as other construction projects in the crazy big geographic range of the northern long-eared bat, FWS will, but apparently has not yet, released a series of new tools (.. that were not released when northern long-eared bat was just threatened) to provide guidance and to streamline processes for projects under the Endangered Species Act. Those tools which could have been useful as far back as 2015, were due in early March. In response to this unknown draconian regulatory guidance, we are aware, anecdotally, that in anticipation of regulation under the Endangered Species Act, pine trees in forested wetlands are being cut down widely across the 37 states before the March 31 effective date.

Bats are key pollinators, .. taking the night shift while bees and birds take the day shift. Bats are critical to healthy, functioning natural areas and contribute more than $3 billion annually to the U.S. agriculture economy through pest control and pollination.

These bats mostly spend the winter hibernating in caves, abandoned mines and even in large drainage pipes. During summer, northern long-eared bats roost alone or in small colonies underneath bark or in cavities or crevices of both live and dead trees, often pine trees in forested wetlands. They emerge at dusk to fly primarily through the understory of forested areas, feeding on insects.

White-nose syndrome, the disease driving their decline, is caused by the growth of a fungus that sometimes looks like white fuzz on bats’ muzzles and wings. The fungus thrives in cold, dark, damp places and infects bats during hibernation. Impacted bats wake up more frequently, which often results in dehydration and starvation before spring arrives.

White-nose syndrome has spread across nearly 80% of the species’ entire range and is expected to affect 100% of the species’ range by the end of the decade. The change in the species’ status comes after a review found that the government protections for the northern long-eared bat being listed as threatened failed, and as the species continues to decline now meets the definition of an endangered species. Data indicate white-nose syndrome has caused estimated declines of 97 to 100% in affected northern long-eared bat populations.

But, the incredibly large 37 state area of the possible critical habitat of the northern long-eared bat makes for a very difficult listing without shutting down a significant portion of economic activity (that is, the portion of it that takes place on land with trees?) in more than half the country. And to what end?

It is suggested that this uplisting is an example of the need to reform the Endangered Species Act. While Congress originally intended the Act to protect and recover at risk species, the lack of flexibility in the Act, particularly when the dramatic limitations it places on activity by prohibiting the “take” of an endangered species, will do little if anything to address the primary contributor to this species’ decline, white-nose syndrome, and shows the need for meaningful reforms in government regulation. Some believe it is time to discuss ways to update the statute to address situations like the current one, as well as find innovative ways to recover and protect species and address the broader issue of biodiversity degradation, which new strategies could allow innovative responses by businesses.

Biodiversity degradation is a serious threat to the planet and all of us, its inhabitants. Human activities are causing significant damage to ecosystems and the species that rely on them and the Endangered Species Act responds to too little of that. And in this instance, it fails completely to address white-nose syndrome. It is crucial that forward thinking businesses take more, broader and faster action, now, to protect and restore biodiversity to ensure the health and stability of the planet.

Live webinar “Preparing for All Electric Building Codes” 30 talking points in 30 minutes, Wednesday, March 29 at 9 am EST presented by Stuart Kaplow and Nancy Hudes on behalf of ESG Legal Solutions, LLC. The webinar is complimentary, but you must register here.