Are they really going to gut the Endangered Species Act?

The White House is proposing to let federal agencies decide for themselves whether construction projects could harm listed species.


The U.S. Fish and Wildlife Service and the National Marine Fisheries Service announced Monday that they are proposing major changes to the Endangered Species Act, a move that critics say will dramatically weaken federal protection of threatened plants and animals.

The announcement came after the Associated Press obtained a draft proposal of the rule changes [PDF], which seek to bypass the review process for construction projects, such as highways, dams, and mines. Currently, under section 7 of the Endangered Species Act, federal agencies must consult with scientists at the Fish and Wildlife Service or the National Marine Fisheries Service to determine whether a project is likely to affect any of the 1,353 animal and plant species listed as endangered or threatened.

The draft rules, which do not need to be approved by Congress but are subject to a 30-day public-comment period, would let each agency decide for itself whether a project would harm listed species.

Additionally, the proposed rules would prohibit federal agencies from assessing the greenhouse gas emissions from construction projects.

The AP details the scope of the proposed changes.

If approved, the changes would represent the biggest overhaul of the Endangered Species Act since 1988. They would accomplish through regulations what conservative Republicans have been unable to achieve in Congress: ending some environmental reviews that developers and other federal agencies blame for delays and cost increases on many projects.
The changes would apply to any project a federal agency would fund, build, or authorize. Government wildlife experts currently perform tens of thousands of such reviews each year.

After the AP broke the story, the Department of the Interior released a statement describing the proposed changes as "narrow." The department argued that agencies now have sufficient expertise to judge for themselves whether a listed species or its habitat would be harmed by a construction project.

“The purpose of these changes is to reduce ambiguity, improve consistency, and narrow interpretive differences, even within the Services. They are a positive step forward,” said Dale Hall, Director of the Fish and Wildlife Service. “In 1986, our existing rules made sense. At that time very few Federal action agencies had any in-depth expertise with section 7 and listed species, but that is not the case today. We are not being good stewards of our resources when we pursue consultation in situations where the potential effects to a species are either unlikely, incapable of being meaningfully evaluated, wholly beneficial, or pose only a remote risk of causing jeopardy to the species or its habitat.”

Despite the government's attempts to depict these changes as less than sweeping, condemnation from environmental groups came swiftly.

"Clearly, that's a case of asking the fox to guard the chicken coop," said Bob Irvin of Defenders of Wildlife to the Washington Post. "What the Bush administration is telling those agencies is they don't have to think about those impacts anymore."

"This is the fox guarding the hen house, said environmental lawyer Eric Glitzenstein to MSNBC. "The interests of agencies will outweigh species protection interests."

"It’s a cliche," writes Andrew Wetzler on the National Resources Defense Council's blog, "but today’s proposal is as clear a case of letting the fox guard the henhouse as you’re ever likely to see."

Similar denunciations came from the National Wildlife Federation, the Environmental Defense Fund, and Earthjustice.

Sen. Barbara Boxer told the AP that she thought the proposed changes were illegal. "This proposed regulation is another in a continuing stream of proposals to repeal our landmark environmental laws through the back door," said the California Democrat and chair of the Environment and Public Works Committee. "If this proposed regulation had been in place, it would have undermined our ability to protect the bald eagle, the grizzly bear and the gray whale."

She may have a point about the changes not being legal. As MSNBC reports, the White House has tried this kind of thing before:

In 2003, the administration imposed similar rules that would have allowed agencies to approve new pesticides and projects to reduce wildfire risks without asking the opinion of government scientists about whether threatened or endangered species and habitats might be affected. The pesticide rule was later overturned in court. The Interior Department, along with the Forest Service, is currently being sued over the rule governing wildfire prevention.
In 2005, the House passed a bill that would have made similar changes to the Endangered Species Act, but the bill died in the Senate.

Apparently, this proposal grew out of fears about environmentalists using the Endangered Species Act as a "back door" to regulate greenhouse gases. In May, after much lobbying by wildlife groups, the polar bear was listed as threatened by the Interior Department. It was the first species to be listed due to the threat from global warming, as repeated scientific studies revealed that rising temperatures are causing the Arctic sea ice vital to the bears' survival to vanish.

In that May announcement, Interior Secretary Dirk Kempthorne stressed that the listing would not hold individual greenhouse gas emitters responsible for destroying the bears' habitat, and that the Endangered Species Act was not an appropriate vehicle for setting climate policy.

Monday's statement reiterated those points:

The proposed rule is consistent with the [Fish and Wildlife Service's] current understanding that it is not possible to draw a direct causal link between greenhouse gas (GHG) emissions and distant observations of impacts affecting species. As a result, it is inappropriate to consult on a remote agency action involving the contribution of emissions to global warming because it is not possible to link the emissions to impacts on specific listed species such as polar bears.
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