Sneaky Bush Attack on Endangered Species
Environmental News Service
August 21, 2008

WASHINGTON, DC, (ENS) - Saying the Bush administration's most recent Endangered Species Act rulemaking is "anti-democratic," 104 conservation and scientific organizations today submitted a letter to Cabinet officials calling for increased transparency and opportunities for public participation.

The new rule published in the Federal Register last week would change the way the Endangered Species Act is administered concerning both land and marine species.

The groups say the rule would "radically weaken" the Endangered Species Act yet only 30 days have been allowed for public comment and the public comment process has been restricted in other ways as well.

Their letter to Interior Secretary Dirk Kempthorne and Commerce Secretary Carlos Gutierrez requests an extension of the comment period to 120 days.

The groups say a longer comment period would allow the public adequate time "to address the breadth and depth that these changes to the Endangered Species Act regulations will have on protecting our most imperiled wildlife."

The rule would, for the first time, give federal agencies the authority to decide without expert consultation whether their activities such as logging, mining or roadbuilding could harm endangered and threatened species. It also would prohibit consideration of the impacts of global warming on wildlife.

The rule states, "These regulations would reinforce the Services' current view that there is no requirement to consult on greenhouse gas (GHG) emissions' contribution to global warming and its associated impacts on listed species (e.g., polar bears)."

Earlier this year, Secretary Kempthorne added the polar bear to the federal endangered species list, classifying it as Threatened. But he qualified the listing with a requirement that it cannot be used to limit greenhouse gas emissions although it is the warming climate that is destroying the sea ice needed for polar bear survival.

Administration officials maintain the proposed rule is a minor change that would make the law easier to implement, but the conservation groups say the rule is a fundamental change in the law.

"Rather than a narrow tweaking of the regulations, the proposal represents a back-door attack on the Endangered Species Act," said Leda Huta, director of the Endangered Species Coalition, a national network of hundreds of conservation, scientific, sporting, religious, humane, business and community groups.

"The American people deserve and expect a full public process to vet such far-reaching changes to this landmark conservation law," Huta said.

The administration is refusing to accept e-mail comments or hold public hearings on the proposed rule.

Instead, comments will be accepted by postal mail, or through a government website that warns reviewers their personal information will be posted on the Internet for public dissemination.

"It appears as if the administration is doing whatever it can to discourage participation in the democratic process," said John Kostyack, of the National Wildlife Federation. "I think we can expect more sneaky assaults like this on our public land and wildlife laws as this administration heads for the exits."

The proposed regulatory changes were published on August 15, while Congress was out for recess and many Americans were enjoying the summer holiday.

The groups warn that the abbreviated timeline and restrictive commenting options raise serious concerns that the Department of the Interior and the Department of Commerce is attempting to rewrite a bedrock environmental statute without allowing for adequate public involvement.

Sean Cosgrove with the Conservation Law Foundation said today, "For one of our nation’s most important and successful environmental laws, the 30 day comment period is woefully inadequate for the public to review and comment on this critical proposal."

"The Bush administration proposal eliminates the critical checks and balances needed to protect imperiled birds and cuts species experts from the process of making decisions that need to be science-based," said Mike Daulton, with National Audubon Society, a bird conservation organization.

"The Endangered Species Act is a safety net for our nation’s wildlife, fish and plants on the brink of extinction, said Bill Snape of the Center for Biological Diversity. "The Bush administration’s proposed regulations will cut a giant loophole in the safety net."

Susan Holmes of Earthjustice, a nonprofit public interest law firm, said, "Animals on the brink of extinction need consideration and protection guided by the best experts in the federal government - U.S. Fish and Wildlife Service and National Marine Fisheries Service biologists."

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Parts of ESA Could Become Extinct
By Juliet Eilperin, Washington Post
August 12, 2008

WASHINGTON -- The Bush administration Monday proposed a regulatory overhaul of the Endangered Species Act to allow federal agencies to decide whether protected species would be imperiled by agency projects, eliminating the independent scientific reviews that have been required for more than three decades.

The new rules, which will be subject to a 30-day comment period, would use administrative powers to make broad changes in the law that Congress has resisted for years. Under current law, agencies must subject any plans that potentially affect endangered animals and plants to an independent review by scientists at the Fish and Wildlife Service or the National Marine Fisheries Service. Under the proposed new rules, dam and highway construction and other federal projects could proceed without delay if the agency in charge decides they would not harm vulnerable species.

The Associated Press obtained a draft of the proposal and reported its details.

Afterward, in a telephone call with reporters, Interior Secretary Dirk Kempthorne described the rules as a "narrow regulatory change" that "will provide clarity and certainty to the consultation process under the Endangered Species Act."

But environmentalists and congressional Democrats blasted the proposal as a last-minute attempt by the administration to bring about dramatic changes in the law. For more than a decade, congressional Republicans have been trying unsuccessfully to rewrite the act, which property owners and developers say imposes unreasonable economic costs.

"I am deeply troubled by this proposed rule, which gives federal agencies an unacceptable degree of discretion to decide whether or not to comply with the Endangered Species Act," said Rep. Nick J. Rahall II (D-W.Va.), chairman of the House Natural Resources Committee, who asked for a staff briefing before the proposal was announced but did not receive one. "Eleventh-hour rulemakings rarely, if ever, lead to good government. This is not the type of legacy this Interior Department should be leaving for future generations."

Bob Irvin, senior vice president of conservation programs at the advocacy group Defenders of Wildlife, questioned how some federal agencies could make the assessments, when most do not have wildlife biologists on staff.

"Clearly, that's a case of asking the fox to guard the chicken coop," Irvin said, adding that the original law created "a giant caution light that made federal agencies stop and think about the impacts of their actions. What the Bush administration is telling those agencies is they don't have to think about those impacts anymore."

But Dale Hall, who directs the Fish and Wildlife Service, said the move would not apply to major federal projects and would give his agency more time to focus on the most critically endangered species, rather than conducting reviews of projects that pose little threat.

"We have to have the ability to put our efforts where they're needed," Hall said, adding that individual agencies will have to take responsibility if their projects do harm a protected species. "This really says to the agencies, 'This law belongs to all of us. You're responsible to defend it.' "

The new rules would also limit the impact of the administration's decision in May to list the polar bear as threatened with extinction because of shrinking sea ice. At the time of that decision, Kempthorne said he would seek changes to the Endangered Species Act on the grounds that it was inflexible, adding that it had not been modified significantly since 1986.

In a statement Monday, the Interior Department declared that even if a federal action such as the permitting of a power plant would lead to increased greenhouse gas emissions, the decision would not trigger a federal review "because it is not possible to link the emissions to impacts on specific listed species such as polar bears."

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

Kempthorne said the new regulations included that language "so we don't inadvertently have the Endangered Species Act seen as a back door to climate change policy that was never, ever intended."

The new rules were expected to be formally proposed immediately, officials told the Associated Press. That would give the administration enough time to impose the rules before November's presidential election. A new administration could freeze any pending regulations or reverse them, but that process could take months. Congress could overturn the rules through legislation, but that could take even longer.

Tim Coyle, senior vice president for governmental affairs at the California Building Industry Assn., said that while his association would have to read the rules before making a judgment, he welcomed Kempthorne's statement on the polar bear because it offered "clarity on an issue that if it was left broad and ambiguous, could be a serious problem for the home-building industry here in California. . . . For home builders, clarity in the rules is always, always helpful."

Although Kempthorne said he had received "encouragement from both sides of the aisle to see if we couldn't bring about steps that would make the Endangered Species Act more effective," his proposal opened a new front in the ongoing battle between the administration and Congress on the environment.

An aide to Sen. Barbara Boxer (D-Calif.), who chairs the Environment and Public Works Committee, said she, like Rahall, had requested but not received a briefing. The panel is drafting a letter to the Interior Department and will hold an oversight hearing.

In a statement, Boxer called the rules change "another in a continuing stream of proposals to repeal our landmark environmental laws through the back door. I believe it is illegal, and 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."

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Bush to Relax Protected Species Rules
MSNBC
August 12, 2008

WASHINGTON - The Bush administration on Monday said it plans to let federal agencies decide for themselves whether highways, dams, mines and other construction projects might harm endangered animals and plants.

The proposal, which does not require the approval of Congress, would reduce the mandatory, independent reviews that government scientists have been performing for 35 years. Developers welcomed the plan, while environmentalists derided it.

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 survival.

“These changes are designed to reduce the number of unnecessary consultations under the ESA so that more time and resources can be devoted to the protection of the most vulnerable species,” the Interior Department said in its announcement.

“The existing regulations create unnecessary conflicts and delays,” added Kempthorne. “The proposed regulations will continue to protect species while focusing the consultation process on those federal actions where potential impacts can be linked to the action and the risks are reasonably certain to occur. The result should be a process that is less time-consuming and a more effective use of our resources.”

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

The Interior Department cited its recent decision on polar bears as an example. While listing polar bears as endangered due to melting sea ice habitat, it argues that scientists at this time cannot “draw a direct causal link between greenhouse gas 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,” the department stated.

Kempthorne has instead urged lawmakers to deal with climate change via separate legislation, not the Endangered Species Act, which dates from 1973.

Biggest overhaul since 1988

The changes 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.

“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.

“The new rules take decision-making on endangered species listings out of the hands of scientists and wildlife professionals at agencies such as the U.S. Fish and Wildlife Services, and instead put those decisions in the hands of agencies working on projects that may be adversely affected by a listing,” added Sierra Club director Carl Pope.

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 warranted.

Proposal: Agencies have expertise

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.

“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 will help focus expertise on projects that have serious repercussions for species. “We are trying to be more efficient, which means not do consultations that result in a difference for the species,” Hall said.

“We are not being good stewards of our resources,” he added, “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.”

The proposal is subject to a 30-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 a source with the National Marine Fisheries Service. The two agencies’ experts were not consulted until last week, the official said.

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.”

Those for, against changes

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.”

The Associated Press contributed to this report.

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