Endangering the Act
Page 2 of 2
|
|
On March 3, 2004, the U.S. Forest Service and the Bureau of Land Management entered into an "alternative consultation agreement" allowing these major public landholders, both federal agencies, to determine for themselves—without concurrence from the expert agencies—whether or not certain anti-forest fire projects would leave listed species unharmed. The new procedures were billed as a key wildfire prevention measure in President Bush's "Healthy Forests Initiative," touted as necessary "to enhance the efficiency and effectiveness" with which National Fire Plan projects were approved.
But the vast majority of Fish and Wildlife Service's Regional Directors, seven high-ranking civil servants charged with overseeing many key aspects of the ESA, disagreed that there was any legitimate problem with swift approvals for anti-wildfire projects. Before the regulations were made official, Manson's Washington office, who drafted the changes, asked for the Director's comments. Of the six who responded, all had serious reservations about the proposal that remain unaddressed in the final version. The Director of the fire-prone Mountain-Prairie region wrote that his office was "unaware of cases in which our current consultation procedures have slowed activity implementation." Another noted that "a concurrence process [with the expert agencies] does not require a long time to prepare. Generally these are done in less than day."
Mark Bosch, who coordinates the Threatened, Endangered & Sensitive Species Program at the Forest Service, agrees that getting concurrences from expert agencies doesn’t slow down the process at his agency. “We usually don't have to wait,” says Bosch. So far, the Forest Service has only used the ACA—the "self-consultation" option—about 50 times, when Bosch had expected hundreds.
So what purpose, then, do the ACAs serve? Glitzenstein, who is litigating against the Fire Plan ACAs on behalf of Defenders of Wildlife, thinks that Manson had another motive. "The political higher-ups wanted to do this to get a foot in the door," he says, and used the excuse of forest fire prevention to establish a beachhead. He's worried that the Interior Department may eventually act on its own allow any federal agency to act without expert agency consultation on species decisions—the same change that Pombo's bill proposes.
The Regional Directors' internal memos, which commented on draft versions of the new regulations, reflect a similar concern about future alternative consultation agreements. Directors feared that the agreements would pave the way for agencies like the Army Corps of Engineers or the Federal Energy Regulatory Commission—both of whom "have existing fundamental disagreements with the Service about ESA implementation"—to obtain their own ACAs. They worried that the Service's role in the process—which has always been understood as that of an impartial arbiter and enforcer—was being given away wholesale to agencies that, as Clark puts it, have "competing missions." As one director wrote, "We cannot discount the overriding conflicts" that the other agencies' scientists who the rule now empowers to make key protection decisions "face from internal pressures to meet quotas for timber salvage harvest, prescribed fire, etc."
Anne Lindsay, the Deputy Director of the Office of Pesticide Programs at the Environmental Protection Agency (EPA), acknowledges that her office has to be responsible to both species and industry and farm groups who make, sell, and use pesticides. In 2002, a federal judge ruled that the Endangered Species Act required the EPA to consult with the expert agencies before approving pesticides that might harm species on the endangered list. But five months after the unprecedented Fire Plan rules, the second (and to date, only other) ACA was drawn up between the EPA and the expert agencies. Now, armed with its new ACA, the EPA is again empowered to make making its own decisions about possible effects on species. Williams describes the new pesticide approval process as a “partnership and a collaboration relationship, more than a policing relationship.” It's that new system that worries lawyer Patti Goldman, who has sued the EPA on behalf of EarthJustice, a non-profit public interest law firm. In the past, she says the EPA has certified certain pesticides as safe, despite Fish and Wildlife Service documents indicating that they could neurologically impair protected salmon and steelhead fish, hampering their ability to swim, find prey, or avoid predators.
So far the Fish and Wildlife Service won't comment on whether or not it thinks the other agencies are making their decisions properly. They are withholding judgment until a mandatory review of the Forest Service and Bureau of Land Management's decisions under the new ACAs is finished. (The review is more than seven months overdue, and is not expected until the end of the year.) Until then, it is hard to tell if the ACAs have been used to approve projects that would not otherwise pass muster under the Endangered Species Act.
But according to Glitzenstein's lawsuit, the Forest Service has already approved, without expert agency oversight, projects that take place where listed species live, including caribou, grizzly bears, the Canadian lynx, and the Mexican spotted owl. According to Bosch "far and away the most common" type of action authorized by the Forest Service under the ACAs has been "mechanical treatment," a term that the Forest Service defines as thinning, clear cutting or removing matter that could fuel forest fires. Environmental groups have been worried the term could be used to authorize logging unrelated to fire prevention.
Clark thinks it unlikely that the portion of Pombo's bill modifying Section 7 will clear the Senate, and optimistically notes that in past ESA battles, Congress has regarded the section as "sacrosanct." But at the same time, she admits to being surprised at how "crummy" of a bill Pombo got through the House—his success to date indicates that almost anything could happen. Meanwhile, Manson's changes to Section 7 are only one court decision away from being upheld. Even if Pombo's bill dies, environmentalists are sure the drive to change the Endangered Species Act will live on.
Clint Hendler is an editorial fellow at MotherJones.com
