Halt the Endangered Species Act Overhaul

On August 15, 2008, the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) proposed significant changes in Endangered Species Act (ESA) regulations mandating interagency cooperation. The ESA requires every federal agency to ensure that any action it authorizes, funds, or implements on the land or sea does not jeopardize the continued existence of threatened or endangered species or adversely modify or destroy their designated critical habitats. The target of this most recent attempt by the Bush administration to weaken ESA protections for imperiled plants and animals, Section 7 of the act governs how and when federal agencies must consult FWS and NMFS scientists to determine whether their proposed actions are likely to affect any of the 1,353 species listed under the ESA. As informal conversations between the involved agencies or formal, written requests, such consultations provide some of the most valuable and powerful means to conserve listed species facing extinction. The draft rule changes submitted by the Secretaries of the Interior and Commerce Departments, who respectively supervise FWS and NMFS endeavors, largely circumvent this interagency review process to ease the execution of development projects, such as dam, highway, and building construction or filling wetlands, mining, and logging. Without congressional approval but subject to a 30-day public comment period, the revisions of the ESA’s Section 7 would effectively give federal agencies the authority to decide, without specialist consultation, whether their own projects would harm protected wildlife or habitats. Agencies that surmise no such adverse impacts would accept all liability for resulting damages, while agency actions that could cause harm to listed species would still require consultation. According to the Interior Department, these ESA changes reflect current practices and recent court cases and are designed to ease agency understanding of regulation applications and reduce unnecessary consultations to allow better protection of the most vulnerable species. If approved, this largest overhaul of the Endangered Species Act since 1988 would limit the exhaustive procedural requirements that developers, landowners, and federal, state, and local governments blame for project delays and cost increases. Interagency endangered species consultations can take months or years to complete; government wildlife experts routinely perform tens of thousands of such reviews each year. Dale Hall, FWS director, asserts that, “the purpose of these changes is to reduce ambiguity, improve consistency, and narrow interpretive differences” by replacing vague definitions, explaining when formal consultation is applicable, and improving the informal consultation process. Hall claims that state and federal agency employees have gained sufficient expertise in ESA protocol over the last twenty years to be capable of making final decisions on permits without pursuing 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 current administration attempted broader ESA changes in an internal draft plan that it aborted last year after it drew press attention, Democratic protests, and threats to eliminate funding. In 2003, new regulations would have allowed agencies to shift consultation on pesticide approvals to the U.S. Environmental Protection Agency and sidestep government endangered species advice on wildfire risk reduction projects. A federal judge overturned the pesticide rule two years ago, and conservationists are currently suing the Interior Department and the Forest Service over the wildfire prevention rule. Republican legislative efforts to rewrite the Endangered Species Act have been mired in controversy and deadlocked for years. In 2005, the House passed similar ESA changes, but the bill died in the Senate. Many judicial decisions have similarly addressed Section 7. As in other successful lawsuits challenging previous federal attempts to diminish ESA oversight, conservationists last spring convinced the Federal Emergency Management Agency to consult with biologists on the effects of flood insurance policies on Florida’s Key deer. The new, proposed regulations would also prohibit federal agencies from assessing the greenhouse gas emissions of their projects and consequent deterioration of listed species’ habitats. In reaction to concerns that wildlife groups could rally ESA provisions to regulate greenhouse gases when the polar bear was listed as threatened this May, Interior Secretary Dirk Kempthorne alluded to ESA changes that would not hold individual polluters responsible for destroying the bears’ habitat. Many scientific studies have revealed that human emissions increase atmospheric temperatures and diminish the Arctic sea ice vital to the bears’ survival. While the polar bear is the first species threatened by global warming to be listed, several snow-dependent, alpine mammals, such as the wolverine and pika, also face vanishing habitats. Nonetheless, the Interior Department maintains that the Endangered Species Act is not an appropriate vehicle for setting the stringent climate policy that the Bush administration has consistently avoided. Kempthorne’s recent statement about ESA changes reiterates that, “The proposed rule is consistent with the current understanding that it is not possible to 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.” Although the federal government has downplayed the significance of these ESA changes, they yet again seriously undermine, perhaps illegally, a landmark environmental law through administrative rulemaking. Please review the proposed rule detailing ESA revisions and a related article at the links below and, most importantly, offer these points for government officials to consider when you comment on this affront to our shared wildlife heritage at the website that follows: * The new ESA rules will hasten the extinction of many endangered and threatened species by redefining the processes that provide for their protection under the existing law. These administrative rule changes, rather than more valid and socially representative legislative reforms to the ESA, will not withstand public lawsuits and judicial scrutiny, as apparent in previous court rejections of similar regulation changes. * Any possible harmful effects to threatened or endangered species and their habitats from federal agency actions should be analyzed by the currently responsible government entities. The present law requires interagency consultation if a project “may affect” a listed species or critical habitat. The new ESA rules reduce consultations by redefining what is considered harmful and by limiting the scope of causation between projects and their effects on protected species or critical habitat. Segmenting projects and their impacts for analysis reduces attention to the probability of harmful cumulative effects. “Insignificant” and “marginal” contributors to “any effect” on listed species or habitat should require consultation actions that assess potential harm, especially if their cumulative impacts represent “one of the main causes of species decline and extinction.” Unlike in the new regulations, even if harmful effects beyond a proposed project would diminish protected species or habitats, an ESA review should remain required, as multiple causes could compound species risks and further degrade habitats. * The new ESA regulations essentially eliminate informal scientific reviews of federal projects that could jeopardize declining plant and animal populations. Under existing law, the informal consultation process identifies protected species or critical habitats in proposed project areas, determines potentially harmful project impacts to these entities, and evaluates and recommends possible mitigation measures. Although some federal agency actions do not presently require interagency consultation when proposals present no risk to endangered or threatened species and habitats, over 90 percent of projects now solely rely on informal consultation and usually proceed only after the operating agency has modified its actions in response to consulted scientists’ concerns. Without this critical function of species protection engendered by FWS and NMFS review, analysis, and judgment, federal agencies may unilaterally, and perhaps wrongly, decide whether their projects may adversely affect listed species and habitats. Such unbridled agency discretion rarely results in regulatory compliance and most frequently accomplishes degradation of valuable public resources. * Formal consultations have been crucial to protecting dwindling species and habitats through ESA rules. These intensive reviews result when the FWS or NMFS determine that projects will jeopardize protected species or adversely modify critical habitat. Their subsequent preparation of a biological assessment outlines mandatory project changes and additional mitigation measures. Federal agencies often underestimate and/or understate the harmful impacts of their projects and resist these interagency efforts to protect species through the consultation process. Under the new regulations, the requirement for formal consultation is negated or greatly reduced by federal agency determinations that their projects will produce no harm to listed species and critical habitats. * Current ESA rules stipulate that a federal agency project can not proceed if the consultation recommendations put forth by the FWS or NMFS are not satisfied. The new regulations allow federal agencies to terminate consultation and initiate actions, even if they may harm designated species or habitats, if the FWS or NMFS have not acted on their request for concurrence within 60 days. An extension of 60 days may be permitted, but after 120 days, federal agencies may proceed with their projects if the FWS or NMFS has not supplied a written determination. Unfortunately, most delays in many ESA processes arise more from limited government funding than from federal employee inefficiency. * The revised ESA proposal does not require federal agencies to evaluate and consult other scientists about their potential project contributions to greenhouse gas emissions and subsequent climate change impacts on listed species, such as polar bears. Although localized air pollution may arise primarily from federally authorized actions, like building a forest road, and secondarily from resulting uses, such as vehicle traffic, these processes would be excluded from scientific review by the new, convoluted ESA causation definitions. These rules state that the greenhouse gas emissions of projects must be the “essential cause” of any species impacts associated with global warming before they can be evaluated. Furthermore, if these effects transpire later, they could not constitute scientifically evaluated “effects of the action” under the proposed definition revisions, because they must be reasonably certain to occur based on “clear and substantial information,” cannot be speculative, and must be more than just likely to occur. Besides otherwise dismissing greenhouse gas emissions as “insignificant contributors” to impacts on listed species under the new applicability rules, the weakened ESA declares that these effects are “not capable of being meaningfully identified or detected in a manner that permits evaluation” and that “the potential risk of jeopardy to the listed species or adverse modification or destruction of their critical habitat [from greenhouse gas emissions] is remote.” The link below provides the legal text and agency explanations of proposed ESA rule changes as they appear in the Federal Register notice: