Bush to relax U.S. protected species laws
August 11, 2008
WASHINGTON ” Parts of the Endangered Species Act, which has protected nature in the United States for 31/2 decades, soon may be extinct.
The Bush administration wants federal agencies to decide for themselves whether construction projects such as highways, dams or mines might harm endangered animals and plants. The new regulations, which do not require Congress’ approval, would reduce the numbers of mandatory, independent reviews government scientists have been performing for 35 years, according to a draft obtained by The Associated Press.
The draft rules also would bar federal agencies from assessing emissions from projects that contribute to global warming and its effect on species and habitats.
If approved, the changes would represent the biggest overhaul of the Endangered Species Act since 1988. They would accomplish through new federal regulations what conservative Republicans have been unable to achieve in Congress: an end to 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.
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Under current law, federal agencies must consult with experts at the Fish and Wildlife Service or the National Marine Fisheries Service to determine the probability that a project would jeopardize any endangered species or damage habitat, even if no harm would be likely to occur. This initial review usually results in accommodations that protect better the 1,353 animals and plants listed in the United States as threatened or endangered. It also determines whether a more formal analysis is warranted.
The Interior Department said such consultations no longer are necessary because federal agencies have developed expertise to review their own construction and development projects, according to a 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, in an interview with the AP Monday, said the changes will help focus expertise on projects with 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.
A National Marine Fisheries Service spokeswoman declined Monday to discuss the draft proposal since it has yet to be published.
The new rules are expected to be proposed formally in coming weeks. They will be subject to a 60-day public comment period before being final, which would give the administration enough time to impose them before the Nov. 4 presidential election. A new administration could freeze any pending regulations or reverse them, which could take months. Congress also could 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 has not yet been circulated publicly. 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.”
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.
Democratic Sen. Barbara Boxer, 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 Bush administration imposed similar rules to allow agencies to approve new pesticides and projects to reduce wildfire risks without asking the opinion of government scientists 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 Republican sponsor of that bill, then-House Resources Chairman Richard Pombo, 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 found 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 were 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.”