In a clash between habitat conservation for a rare lizard native to West Texas and oil and gas interests, the Trump administration, in league with officials from a major subsidiary of Exxon Mobil, appears close to quashing a state proposal favoring beefed-up species protections, according to multiple people involved in negotiations.
The tactic comes as the Trump administration this month announced it was weakening endangered species protections, clearing the way for more oil and gas development.
The Texas issue concerns protections for the dunes sagebrush lizard, a species environmental groups want to be designated an endangered species.
To preempt the lizard’s listing — which historically carries heavy federal regulations — Texas officials years ago implemented a voluntary program in which oil and gas companies agreed to some habitat protections.
But state Comptroller Glenn Hegar proposed the heavier-duty state plan a year ago to replace a previous version that he said suffered from “systemic problems.”
Oil and gas interests, however, are trying to revive the old, discredited plan, and the comptroller’s replacement proposal has languished in Washington, with the U.S. Interior Department holding off on putting the proposal on the Federal Register for public comment — a major step toward codifying the plan.
In early July, a top Trump administration official who long practiced as a property rights attorney was dispatched to Austin to meet with Hegar, whose office oversees the state response to proposed endangered species listings, about the issue, the American-Statesman has learned.
The proposed plan, like its predecessor, is part of a state effort to avoid federal oversight of the lizard, which could hinder oil and gas operations in the six West Texas counties where the species has been found.
The two sides appear to be at an impasse.
The negotiations come as officials at XTO, the hydraulic-fracturing arm of ExxonMobil, have lobbied to revive and take over the old voluntary program — likely through a nonprofit they will set up for the purpose, according to several people with knowledge of the plans — including one person in state government and one in federal government who spoke on condition of anonymity because they were not authorized to speak publicly on the matter.
The plan that Hegar scrapped “should be continued to ensure the long-term viability of the dunes sagebrush lizard,” XTO spokeswoman Julie King said. She said XTO, as an enrollee in the old plan, “remains steadfast in our commitment to the conservation of the dunes sagebrush lizard.”
She said company officials are “working closely with the U.S. Fish and Wildlife Service to both continue and improve these ongoing conservation measures for the benefit of the species.”
“These conservation efforts will facilitate energy development critical to the future of the country’s economy,” she added.
Close observers of the lizard saga say the Trump administration activity amounts to federal overreach.
“One of the pieces I find so astonishing is this is Texas — we’re not talking about a Vermont state program,” said Melinda Taylor, associate director of the University of Texas’ Kay Bailey Hutchison Center for Energy, Law, and Business, and a proponent of stronger lizard protections. “Here you have a Texas state agency designed to limit the impact of endangered species law, and yet the Trump administration is not listening to what the state wants to do here, but to one or two oil and gas operators in the Permian Basin. That’s over-the-top crazy. This is pulling the rug out from that agency that is tasked with state law with carrying these things out.”
The Hegar plan
The dunes sagebrush lizard, an insectivorous spiny lizard that also lives in southeastern New Mexico, was first identified as needing protection in 1982. In 2010, after pressure from environmental groups, the Fish and Wildlife Service proposed safeguarding the lizard by listing it as endangered.
That prompted the oil and gas industry to team up with Hegar’s predecessor, Susan Combs, to come up with a voluntary plan to preserve the lizard’s habitat.
Although the Texas Conservation Plan, as it was known, succeeded in fending off federal efforts to designate the animal as endangered — and the strict land-use regulations that would have accompanied that designation — conservationists criticized it as favoring oilfield profits over the species.
The oil and gas industry had protected less land than Combs — now a senior adviser to the U.S. interior secretary, overseeing policy, management and budget — had forecast. And the original Texas Conservation Plan appeared to have vastly underestimated the size of dunes sagebrush lizard habitat.
In 2017, Hegar fired the private company that had been charged with overseeing the protection work.
And in December, Hegar, elected to a second four-year term as comptroller the month prior, decided to formally rescind the Combs plan.
The new Hegar proposal eliminates scientifically unsupported conservation options and defines ways for companies to avoid lizard habitat, enacts fees for some companies operating in the lizard habitat to support conservation efforts and includes incentives to focus industrial activities in degraded or nonhabitat areas.
The calculation was that the species is less likely to be listed as endangered — which would invite, ultimately, more far-reaching federal regulations — should the state and industry agree to a ship-shape voluntary habitat protection program.
The new plan is meant to be “defensible in court, and durable so that it doesn’t have to be amended over a 30-year period,” Robert Gulley, at the time Hegar’s point person on lizard issues, told the Statesman last year. “The oil and gas industry wanted a plan that would provide that kind of certainty.”
Gulley retired earlier this year.
Notably, the Hegar plan expands the potential lizard habitat from 197,600 acres to about 280,000 acres.
Notice of lawsuit
Early last month, Karen Budd-Falen, a veteran of Western state property rights wars — the Wyoming lawyer once represented ranchers as they appealed a federal decision to remove them from grazing allotments after a tortoise species found on the property was listed as endangered, and she now works as deputy solicitor at the Interior Department — along with another Interior Department attorney and U.S. Fish and Wildlife Service officials met with Hegar and his deputies to discuss the plan’s status, comptroller spokesman Chris Bryan told the Statesman.
Neither Hegar nor Budd-Falen agreed to an interview for this story.
“We are working with the Texas comptroller to find the best path forward to protect the dunes sagebrush lizard and its habitat,” Interior Department spokeswoman Molly Block said.
She did not address a question about whether the Interior Department thought the old Combs plan could be revived, since Hegar spiked the program last fall.
“The U.S. Fish and Wildlife Service supports the efforts of the Texas comptroller’s office and other stakeholders to improve protections for the dunes sagebrush lizard and its habitat, while providing a durable agreement for participants and the regulatory certainty sought by oil and gas operations in the Permian Basin,” said Beth Ullenberg, spokeswoman for the service’s regional office.
The discussions come as environmental groups once more are working to get the species listed as endangered. In July, the Defenders of Wildlife and the Center for Biological Diversity served the Interior Department with a notice that they intend to sue because it has not taken up its formal petition arguing for the species’ listing by a statutory deadline.
The action comes as Interior Secretary David Bernhardt’s ethics recusal expired in early August. The ethics pledge banned Bernhardt, a longtime oil and gas lobbyist, from decisions involving his former firm’s clients for two years.
On Aug. 12, the Trump administration announced it would let economic considerations play a role when deciding to include a species on the endangered list — as well as make it easier to remove species from the list.
Bernhardt said the changes, long sought by the oil, gas, mining and real estate development industries, would help bring the Endangered Species Act up to date.