Climate and Politics: Bush to Hamstring Endangered Species Act

It may be a temporary thing, lasting only ’til
the next president restores what Bush taketh away.
Or not.

Associated Press
Bush to relax protected species rules

By DINA CAPPIELLO – 49 minutes ago

WASHINGTON (AP) – Parts of the Endangered Species
Act may soon be extinct. The Bush administration
wants federal agencies to decide for themselves
whether highways, dams, mines and other
construction projects might harm endangered
animals and plants.

New regulations, which don’t require the approval
of Congress, would reduce the mandatory,
independent reviews government scientists have
been performing for 35 years, according to a
draft first obtained by The Associated Press.

Interior Secretary Dirk Kempthorne said late
Monday the changes were needed to ensure that the
Endangered Species Act would not be used as a
“back door” to regulate the gases blamed for
global warming. In May, the polar bear became the
first species declared as threatened because of
climate change. Warming temperatures are expected
to melt the sea ice the bear depends on for

The draft rules would bar federal agencies from
assessing the emissions from projects that
contribute to global warming and its effect on
species and habitats.

“We need to focus our efforts where they will do
the most good,” Kempthorne said in a news
conference organized quickly after AP reported
details of the proposal. “It is important to use
our time and resources to protect the most
vulnerable species. It is not possible to draw a
link between greenhouse gas emissions and distant
observations of impacts on species.”

If approved, the changes would represent the
biggest overhaul of the Endangered Species Act
since 1986. 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 that might
harm endangered wildlife and their habitat.
Government wildlife experts currently perform
tens of thousands of such reviews each year.

“If adopted, these changes would seriously weaken
the safety net of habitat protections that we
have relied upon to protect and recover
endangered fish, wildlife and plants for the past
35 years,” said John Kostyack, executive director
of the National Wildlife Federation’s Wildlife
Conservation and Global Warming initiative.

Under current law, federal agencies must consult
with experts at the Fish and Wildlife Service or
the National Marine Fisheries Service to
determine whether a project is likely to
jeopardize any endangered species or to damage
habitat, even if no harm seems likely. This
initial review usually results in accommodations
that better protect the 1,353 animals and plants
in the U.S. listed as threatened or endangered
and determines whether a more formal analysis is

The Interior Department said such consultations
are no longer necessary because federal agencies
have developed expertise to review their own
construction and development projects, according
to the 30-page draft obtained by the AP.

“We believe federal action agencies will err on
the side of caution in making these
determinations,” the proposal said.

The director of the Fish and Wildlife Service, H.
Dale Hall, said the changes would help focus
expertise on “where we know we don’t have a
negative effect on the species but where the
agency is vulnerable if we don’t complete a

Responding to questions about the process, Hall
said, “We will not do anything that leaves the
public out of this process.”

The new rules were expected to be formally
proposed immediately, officials said. They would
be subject to a 60-day public comment period
before being finalized by the Interior
Department, giving the administration enough time
to impose them before November’s presidential
election. A new administration could freeze any
pending regulations or reverse them, a process
that could take months. Congress could also
overturn the rules through legislation, but that
could take even longer.

The proposal was drafted largely by attorneys in
the general counsel’s offices of the Commerce
Department’s National Oceanic and Atmospheric
Administration and the Interior Department,
according to an official with the National Marine
Fisheries Service, who spoke on condition of
anonymity because the plan hadn’t yet been
circulated publicly. The two agencies’ experts
were not consulted until last week, the official

Between 1998 and 2002, the Fish and Wildlife
Service conducted 300,000 consultations. The
National Marine Fisheries Service, which
evaluates projects affecting marine species,
conducts about 1,300 reviews each year.

The reviews have helped safeguard protected
species such as bald eagles, Florida panthers and
whooping cranes. A federal government handbook
from 1998 described the consultations as “some of
the most valuable and powerful tools to conserve
listed species.”

In recent years, however, some federal agencies
and private developers have complained that the
process results in delays and increased
construction costs.

“We have always had concerns with respect to the
need for streamlining and making it a more
efficient process,” said Joe Nelson, a lawyer for
the National Endangered Species Act Reform
Coalition, a trade group for home builders and
the paper and farming industry.

Sen. Barbara Boxer, D-Calif., chairwoman of the
Environment and Public Works Committee, called
the proposed changes illegal.

“This proposed regulation is another in a
continuing stream of proposals to repeal our
landmark environmental laws through the back
door,” she said. “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.”

The Bush administration and Congress have
attempted with mixed success to change the law.

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.

The sponsor of that bill, then-House Resources
chairman Richard Pombo, R-Calif., told the AP
Monday that allowing agencies to judge for
themselves the effects of a project will not harm
species or habitat.

“There is no way they can rubber stamp everything
because they will end up in court for every
decision,” he said.

But internal reviews by the National Marine
Fisheries Service and Fish and Wildlife Service
concluded that about half the unilateral
evaluations by the Forest Service and Bureau of
Land Management that determined wildfire
prevention projects were unlikely to harm
protected species were not legally or
scientifically valid.

Those had been permitted under the 2003 rule changes.

“This is the fox guarding the hen house. The
interests of agencies will outweigh species
protection interests,” said Eric Glitzenstein,
the attorney representing environmental groups in
the lawsuit over the wildfire prevention
regulations. “What they are talking about doing
is eviscerating the Endangered Species Act.”


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