Eleventh-hour Bush Policy Tries to Gut Endangered Species Act

On August 15, 2008, Secretary of the Interior Dirk Kempthorne proposed sweeping changes to the rules that govern how the Endangered Species Act is carried out — changes that would eviscerate protections for endangered species by excusing thousands of federal activities, including those that generate greenhouse gases, from review under the Act. This proposal followed an earlier proposal issued on August 5, which claimed to be just a formatting change to the federal list of threatened and endangered species — but which would actually limit protection of endangered species to their current (and usually vastly diminished) ranges.

The Center is working hard to stop both of the new Endangered Species Act proposals from being finalized by working with Congress, educating the public, calling for public comments, and filing our own comments. If necessary, we’ll take to the courts.

THE GUTTING OF THE ACT

Under the regulations now in place, federal agencies must consult with one of two wildlife agencies — the U.S. Fish and Wildlife Service or the National Marine Fisheries Service — if the federal agencies permit, fund, or otherwise carry out actions that “may affect” endangered species. Through this consultation process, the wildlife agencies can approve, reject, or modify proposed projects. Consultation begins with an initial review called an “informal consultation,” in which the wildlife agencies decide whether the project is likely to harm an endangered species — and if it is, the agency must go through formal consultation to make sure the species isn’t put in danger and that impacts are minimized and counteracted.

Under the new regulations, on the other hand, federal agencies will get to decide for themselves whether their actions are likely to harm endangered species — and thus whether they need to consult with the wildlife agencies at all.

And it gets worse. The proposal lets federal agencies completely off the hook from considering the impacts of greenhouse gas emissions on endangered species threatened by climate change, including the polar bear, staghorn and elkhorn coral, and bull trout, among many others. This would block the Fish and Wildlife Service’s budding efforts to integrate fighting global warming into the Endangered Species Act consultation process. In northern New Mexico, for example, the agency recently required proponents of a new coal-fired power plant to calculate its greenhouse gas emissions and account for the damage those emissions would inflict on endangered species, especially those threatened by drought. But if today’s proposed policy is enacted, the Service won’t be able to consider and mitigate such impacts.

A PROVEN FAILURE

Letting federal agencies determine the impacts of their own projects has already been tried — and it failed miserably. In 2003, the Bush administration published “ joint counterpart regulations” for consultation under the Endangered Species Act to “streamline” the process for proposed projects that supported the National Fire Plan. The plan, an interagency strategy approved in 2000, was meant to encourage logging on public lands under the false pretense of reducing the likelihood of wildfires. Like the proposal announced today, that plan allowed the U.S. Forest Service and the Bureau of Land Management to self-consult rather than obtain Endangered Species Act approval from the Fish and Wildlife Service.

A federally ordered Fish and Wildlife Service review of self-consultation under the National Fire Plan determined that the Forest Service and the Bureau of Land Management had violated the Endangered Species Act in no less than 68 percent of their projects. The Interior Secretary suppressed a report on the review — in violation of department policy — rather than publish the results in the Federal Register, along with plans to fix the program.

Self-consultation under the National Fire Plan was sharply criticized by several regional directors of the Fish and Wildlife Service. The director of the Southwest region, for example, concluded that “these agencies in most cases do not have the range-wide information on species status, knowledge of past consultations with other federal agencies that have evaluated project effects on the species, or a broad view of the threats faced by a species throughout its range.” Echoing the view of other directors, he further concluded that the region was “already completing informal consultations within 30 days,” and thus that the regulations were “unlikely to reduce the time frame for decisions,” which formed a primary justification for allowing self-consultation. Despite these sharp criticisms, Secretary Kempthorne is now recommending expanding the program to all federal agencies.

“RE-FORMATTING” SPECIES OUT OF PROTECTIONS

The administration’s other proposed rule, issued on August 5 and attracting far less attention than the August 15 proposal, changes the formatting of the lists of threatened and endangered species by creating a new column heading of “Where listed,” which “sets forth the geographic area where the species is listed for purposes of the Act.” It states that for species not listed in portions of their ranges or as a population, this column will be filled out with the term “entire,” which is defined as “wherever found.” A column for a species’ historic range — the area in which a species should be protected — is considered non-regulatory, an "information-only column."

Rather than just affecting formatting, these changes represent an enormous cut in the amount of protection species receive because most endangered species have lost substantial portions of historic range. Take, for example, the gray wolf, which was listed as endangered in the lower 48 states and as threatened in Minnesota in 1976. If this supposed “formatting” change had been in place at the time, the wolf could not have been listed in the lower 48 states where it was not found. Likewise, if the change had been enacted just after the California condor went extinct from the wild, the magnificent bird would have only been protected in zoos.

The amendment reflects a policy shift that was articulated in a March 16, 2007 memorandum from the Department of the Interior’s solicitor, which argues that the Fish and Wildlife Service must only consider and protect the current range of endangered species. The positions argued in the memo and put in place by the August 5 proposed amendment are obviously inconsistent with the language and intent of the Endangered Species Act, whose primary goal is to help species repopulate all but insignificant portions of their historic ranges. For example, the Act requires designation and protection of critical habitat in places dubbed essential to a species’ conservation, whether the species is found in that habitat or not. Limiting protection to places endangered species are currently found would put tremendous obstacles in the way of their recovery — and in some cases would prevent recovery altogether.