THE ENDANGERED SPECIES ACT EVISCERATION
On December 11, 2008, George W. Bush’s Secretary of the Interior Dirk Kempthorne finalized sweeping changes to the rules that govern how the Endangered Species Act is carried out — changes that would gut protections for endangered species by excusing thousands of federal activities, including those that generate greenhouse gases, from review under the Act. The Bush administration finalized the rules after a hasty public-review process — in which more than 300,000 comments from the public were supposedly reviewed in two to three weeks — and afforded them only a cursory environmental assessment. The very same day the final rules were published, the Center, Greenpeace, and Defenders of Wildlife sued. Nine states, including California, New York, and Oregon, followed with suits of their own soon after.
In late April, after Obama issued a presidential memorandum instructing agencies to disregard portions of the Bush rules, and after Congress passed special legislation giving Interior Secretary Ken Salazar 60 days to undo the rule eviscerating the Act — along with a rule weakening polar bear protections — Salazar thankfully rescinded the Endangered Species Act rule. Unfortunately, he made no move to rescind the one weakening polar bear protections.
THE SELF-CONSULTATION REGULATION
The Endangered Species Act requires federal agencies to “consult” with the U.S. Fish and Wildlife and National Marine Fisheries Services when carrying out, funding or permitting projects that “may affect” endangered species, such as timber sales, mines, roads, or any other number of activities that potentially harm wildlife. During consultation, the Services recommend modifications to projects to reduce or eliminate impacts to endangered species.
The Bush regulations were meant to cut the Services and their independent review out of the process, allowing the Forest Service and other agencies to determine for themselves whether a project is likely to affect endangered species. This is a classic example of allowing the fox to guard the henhouse. Agencies such as the Forest Service and Bureau of Reclamation employ staff dedicated to — and receive revenues from — destructive, industry-driven activities like logging public lands and building dams. Allowing them to review their own projects enshrines a conflict of interest in a system that was previously based on independent scientific oversight. Ironically, the Bush administration tested this policy in 2003 and determined that it does not work. When allowed to self-consult over timber sales, the Forest Service and Bureau of Land Management violated the Endangered Species Act 68 percent of the time.
THE GREENHOUSE GAS EXEMPTION
Global warming is rapidly growing as the greatest threat to biological diversity. Scientists estimate that nearly a third of the world’s species could be committed to extinction by 2050 if current levels of greenhouse gas emissions continue. More than 50 percent of federal endangered species recovery plans issued in the past three years identify global warming as a threat. The recent listing of the staghorn and elkhorn corals off the coast of Florida and of the polar bear in the Arctic as “threatened” is the beginning of what will be a long list of global warming-related endangered species list additions. Penguins in Antarctica; seals and walruses in the Arctic; and pikas in the mountains of California, Nevada, and Utah are all waiting in the wings for federal protection.
Bush’s 11th-hour regulation created an exemption — aimed at greenhouse emissions but potentially encompassing other pollutants as well — for impacts that are manifested through a “global process.” The Endangered Species Act, however, makes no such distinction between local and global processes. It simply says that federal agencies must review any action they permit, fund or carry out that may affect an endangered species. As greenhouse gases unquestionably threaten polar bears, corals, and many other species, federal permitting of coal-fired power plants, coal mines, oil leases and other substantial sources of greenhouse gas emissions must be reviewed for their impacts. Similarly, federal policies such as the establishment of fuel efficiency standards must be reviewed. The Bush-era position that it's necessary to place global warming-threatened species such as the polar bear on the endangered species list — but that it's impermissible to take action save them — is absurd.
While the Endangered Species Act won’t solve global warming all by itself, as America’s primary law to prevent the extinction of plants and animals, it has a crucial role to play in ensuring that federal agencies address and mitigate their global warming contributions. The federal agency consultation process has a proven track record of reducing threats to protected species, and greenhouse gas reductions obtained through this process will be complementary to other greenhouse gas emissions reductions measures that Obama should undertake under the Clean Air Act — as well as to requirements of any new federal climate legislation.
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 projects to reduce fire danger on public lands, including many timber sales. Like Kempthorne’s Endangered Species Act changes, that plan allowed the 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. Secretary Kempthorne suppressed a report on the review probably in part because it suggested self-consultation, which they have now expanded to include all federal agencies, doesn’t work.
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, former Secretary Kempthorne recommended expanding the program to all federal agencies.
BUSH'S PROPOSALS AND RULES
Interior Department final rules on self-consultation, 12/11/08
Interior Department proposed rules on self-consultation, 8/15/08
President Obama's memorandum to rescind Bush's rules on self-consultation, 3/3/09
President Obama's speech, 3/3/09
Interior Department report showing failure of self-consultation policy
Draft environmental analysis on consultation rules, 10/08
EPA letter against consulting on greenhouse gas emissions, 10/3/08
Solicitor’s memo against consulting on greenhouse gas emissions, 10/3/08
U.S. Fish and Wildlife Service regional directors' complaints
Service using Endangered Species Act to address greenhouse gas emissions
“New Regulation Would Lessen Influence of Fish and Wildlife Experts,” Science, 8/22/08
Center lawsuit, 12/11/08
State of California lawsuit, 12/29/08
Comments by Center and allies on environmental assessment, 11/6/08
California Attorney General’s comments on self-consultation rules, 10/14/08
Center's comments on self-consultation rules, 10/14/08
Endangered Species Coalition comments on self-consultation rules
Law professors' comments on self-consultation rules
U.S. Senate Committee on Environment and Public Works, 8/26/08
Ecological Society of America, 8/26/08
Contact: Noah Greenwald