Endangering the Act
News: Environmentalists say a little-noted rule change could weaken the United States' strongest environmental law.
November 8, 2005
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In September the House of Representatives approved a bill that would make the Endangered Species Act (ESA) friendlier to industry and private-property owners at the expense of threatened and endangered species. The bill, championed by Rep. Richard Pombo (R-CA), a real estate developer and rancher who serves as the chair of the House Resources Committee, would change a key provision of the act, Section 7, which requires that government agencies seek the opinion of wildlife experts before launching projects that might harm endangered species. Environmentalists have long seen Section 7 as an important preservation tool, and fear that agencies, left to their own devices, will tend to underplay the likely harm to species. "It becomes like the fox watching the chicken house," says Jaime Rappaport Clark, a former Director of the National Fish and Wildlife Service.
For now, Pombo's bill is stalled in the Senate. But his isn't the only Republican challenge to Section 7. In June of 2003, long before the bill's drafting, the Bush administration's Interior Department had already issued new regulations under the ESA that allowed much the same thing. In certain cases, important species-protection decisions have been moved from the government's long-time conservation experts to the very agencies that the ESA was meant to regulate, such as the Environmental Protection Agency and the U.S. Forest Service. Pombo's bill, if passed into law, would legislatively enshrine the Interior Department's new rules. But if courts uphold those rules, now under legal challenge, the effect could essentially be the same.
While environmental lawyer Eric Glitzenstein calls the new rules "the biggest regulatory change" to the ESA carried out under the Bush administration, he and other environmental advocates point to many other actions and appointments whose goal at heart, they say, is to gut the Act. According to Clark, under Bush the expert agencies have annually listed, on average, less than 10 new species as endangered or threatened; under Clinton the yearly average was 65, under the first President Bush it was 58. And if past performance is any indication, that number is unlikely to grow under Dale Hall, Bush's new pick to lead Fish and Wildlife, who was confirmed by the Senate last month. When serving as the Service's Southwest Regional Director, Hall "never acted to protect a species unless under court order," according to a press release from Forest Guardians, a New Mexico based preservation group.
Here's how things worked prior to the rule changes: Before any federal agency, such as Forest Service or the Army Corps of Engineers, could authorize, for instance, logging or dam-building, it would have to determine whether the action was likely to kill or harm any species listed as endangered or threatened. If the acting agency thought that harm was possible, it then had to consult with the National Fish and Wildlife Service or the National Marine Fisheries Service—known as the "expert agencies"—to determine how real of a threat the project represented to the species, and if the action could be modified to minimize or eliminate harm. This process would also be required if one of the expert agencies disagreed with the acting agency's original assessment. Any project that, even after consultation, the expert agencies find short of the ESA's protection standards is essentially stymied, unless overruled by a court or allowed by what is informally known as "the God Squad"—a group of at least six senior governmental officials, including two cabinet secretaries, that has met only three times in the history of the act.
But that process changed with the Bush administration's new regulations. It doesn't take the word of the God Squad to allow a project to go forward without expert agency approval. That's because, in certain cases, the revisions allow agencies to decide for themselves whether or not their actions would harm endangered species, avoiding any potential for formal consultation. The rules were drafted in part by the office of Craig Manson, Bush's Assistant Secretary of the Interior for Fish and Wildlife and Parks. (In November 2003, Manson told a reporter that he did not "think we know enough about how the world works to say" that species extinction "in and of itself is inherently bad".) The government calls the result of the new procedure as an "alternative consultation agreement" (ACA); but environmental lawyers wryly—and perhaps more accurately—characterize the new process as "self-consultation."
It's the sort of change that excites the industry-funded National Endangered Species Act Reform Coalition, which represents farmers, developers, and electric utilities, and has been a major supporter of Pombo's bill. Industry has long been frustrated by the ESA; a decision to protect a single species can lead to the prohibition or curtailment of any activity that might threaten that species. Environmental litigants have found the ESA's broad ability to stop construction, controlled fires, resource extraction, or pesticide—as long as such activities can be shown to harm a listed species—to be among the most powerful weapons in their legal arsenal.
