With just over a month remaining in office, the Bush administration loosened federal protection of plant and animal species threatened with extinction.
On Thursday, the Interior Department announced a change to Section 7 of the Endangered Species Act, which required federal agencies to 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 listed species.
Under the new rule, federal agencies such as the Federal Highway Administration can in many cases simply check with their own personnel to determine if their activities will harm any of the 1,247 animal and 747 plant species listed as endangered or threatened.
“The rule strengthens the regulations so the government can focus on protecting endangered species as it strives to rebuild the American economy,” said Secretary of the Interior Dirk Kempthorne.
It started with the polar bears
The rule change has its origins in a May announcement by the Interior Department that listed the polar bear as threatened because global warming is melting its habitat. It was the first animal to be listed because of climate change.
In that announcement, Interior Secretary Dirk Kempthorne said that even though global climate change is the reason that the bear is on the endangered species list in the first place, that list is "not the means, nor the method, nor the vehicle by which you can deal with global climate change.”
The Interior Department's press release cites a May editorial from the Washington Post that endorses this view:
That Mr. Kempthorne has to contort his agency to ensure that it doesn't get dragged into setting US climate policy is simply more proof of the need for such a policy, supported by the White House and ratified by Congress, that aims at sharply reducing greenhouse-gas emissions. Though the polar bear deserves protection, the Endangered Species Act is not the means and the Fish and Wildlife Service is not the agency to arrest global warming.
The release quotes the second sentence of that paragraph.
So under the new rules, federal agencies that are undertaking a project need not check with Fish and Wildlife or National Marine Fisheries under these circumstances:
1. Where the action has no effect on a listed species or critical habitat, or
2. Where the action is wholly beneficial, or
3. Where the effects of the action can not be measured or detected in a manner that permits meaningful evaluation using the best available science, or
4. Where the effects of the action are the result of global processes and can not be reliably predicted or measured on the scale of species current range, or would result in an insignificant impact to a listed species, or are such that the potential risk of harm to a species is remote.
“This administration has rejected anything with a whiff of science – so before sulking out the back door, they are going after rules that require Fish and Wildlife Service scientists to prevent harm to our last wild animals and places. Despite today’s feel-good statements, we remain convinced that these changes are illegal. We will look at the final language when it is published tomorrow, but I think we will see them in court.”
"This administration’s disdain for wildlife and the environment has never been more clear than it is today," said Jamie Rappaport Clark, executive vice president of Defenders of Wildlife and former director of the Fish and Wildlife Service. "For 35 years, the Endangered Species Act has helped save and recover imperiled wildlife on the brink of extinction. Now, with this administration facing its last days, they are doing everything they can to cement their anti-environmental legacy before the Obama administration takes office."
Obama says that he intends to reverse the rule change, along with other "midnight rules" made in the waning days of the Bush presidency. But that may be easier said than done.
ProPublica, a nonprofit investigative news organization, notes that while last-minute rules that have not yet taken effect can be quickly reversed by Obama's appointees or by executive order, rules that are in force when he takes office cannot:
Rescinding a rule would require the new administration to restart the rulemaking process, which can take years and prompt legal challenges. Another strategy that has been talked about lately – getting Congress to disapprove the rules through the Congressional Review Act – carries political risks and has been used only once before.
The new endangered species rule takes effect nine days before Obama's inauguration.
There is still a chance that the rule could be quickly reversed, however. USA Today reports that Rep. Nick Rahall (D) of West Virginia, the chairman of the House Natural Resources Committee, says that he will likely invoke the Congressional Review Act, a rarely used law that gives Congress 60 days to review and overrule regulations issued by government agencies.