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Find out more from the Center for Biological Diversity:
Endangered Species Act in Peril
San Francisco Chronicle, December 30, 2008

Brown sues over Bush's environmental breaks for developers
By Bob Egelko, Chronicle Staff Writer

SAN FRANCISCO -- State Attorney General Jerry Brown is challenging the Bush administration's attempt to narrow scientific review of development that might hurt endangered species, joining environmental groups that have sued in San Francisco over the government's hotly disputed regulatory changes.

"The Bush administration is seeking to gut the Endangered Species Act on its way out the door," Brown said in a statement Tuesday after filing suit a day earlier in U.S. District Court.

Major environmental organizations went to court two weeks ago to contest the regulations, which took effect Dec. 16. Although the suits claim the regulations violate the Endangered Species Act and other environmental laws, none of the plaintiffs has asked for an order halting enforcement of the new rules before President-elect Barack Obama takes office Jan. 20.

"We'd like to give the new administration a chance to respond," said Noah Greenwald of the Center for Biological Diversity, which filed the first suit. He said the Obama administration, after taking over defense of the suit, could agree to suspend the regulations while it works on new rules.

The regulations apply to federal agencies that approve projects on land owned or regulated by the federal government - for example, logging or mining in national forests or underwater drilling or dredging.

In the past, agencies have been required to consult with scientists from the U.S. Fish and Wildlife Service or the National Marine Fisheries Service about whether a project might affect an endangered species or its habitat, and, if so, what protective measures are needed.

The new regulations allow an agency to decide whether effects on an endangered species are too trivial to require that the government scientists be consulted.

The rules give a scientific agency 60 days to object to being bypassed. Environmental groups say it is virtually impossible for an agency to respond that quickly because of a huge volume of cases.

The Bush administration's regulations also declare that global warming is not covered by the Endangered Species Act, and that federal agencies have no duty to consider the possible effect of development on climate change before deciding whether a project threatens a species.

That provision followed Interior Secretary Dirk Kempthorne's announcement May 14 that he was listing the polar bear as a threatened species because of its dwindling sea ice habitat, but that the listing would not lead to restrictions on emissions of greenhouse gases from any specific source such as power plants, cars or oil drilling in arctic waters.

Asked Tuesday about the new regulations, Interior Department spokeswoman Tina Kreisher cited Kempthorne's comments.

"The secretary said the Endangered Species Act was never intended to be a way to address global climate change," she said, because the law focuses on the effects of individual development projects on species and their habitat.

Overall, she said, the Bush administration's new regulations allow federal agencies to "do more to protect species." That's because the rules require consultation with government scientists only on projects that could cause significant harm, she said.

But Brown and environmental groups say the changes strike at the heart of the law.

"It's a classic case of the fox guarding the henhouse," Greenwald said, because the same agency that has been promoting a project will decide whether it needs to consult with scientists.

Brown called the new regulations "an audacious attempt to circumvent a time-tested statute that for 35 years has required scientific review of federal agency decisions that affect wildlife."

His lawsuit drew criticism from the Pacific Legal Foundation, a property-rights group that often represents developers. Its president, Rob Rivett, said the Bush administration regulations allow federal agencies to rely on in-house experts to conduct their own environmental assessments "without redundant bureaucratic reviews."

The attorney general's "showboating threatens to stall America's economic recovery," Rivett said, "because we need the regulatory streamlining that Brown is opposing."

© 2008 Hearst Communications Inc.

Photo © Paul S. Hamilton