AP and CNN: "Bush could weaken Endangered Species Act"
Citing a draft copy of regulations obtained by the Associated Press, CNN reported that "the Bush administration wants federal agencies to decide for themselves whether highways, dams, mines and other construction projects might harm endangered animals and plants." In addition, the Interior Department said such informal consultations are "no longer necessary because federal agencies have developed expertise to review their own construction and development projects." In response, the National Wildlife Federation and magazines and bloggers have declared the regulations a "sneak attack" on the Endangered Species Act.
Image of Dale Hall, Director of the U.S. Fish & Wildlife Service. Despite his career of service to the FWS, and his master's degree in fisheries science, some critics will inevitably resume the Fire Dale Hall campaign over these regulations, or otherwise declare the rule proposal nothing but a Bush Administration tactic.
Image of James Balsiger, NOAA Acting Assistant Administrator for Fisheries (bottom). Mr. Balsiger is also a career NOAA scientist with a Ph.D. in ecology. ESA issues are rarely as black and white as some people would like to think.
ANALYSIS: Prior postings on these pages have acknowledged the good and the bad of the ESA (see right column), and certainly, some degree of regulatory reform to the ESA could be appropriate. Moreover, ESA reform has hardly been a secret, and NPR was reporting on potential changes only a year ago. These proposed regulations disclosed (or leaked) earlier today, however, as posted on the NWF webpage (and sadly, not currently available from the government agencies proposing them) are substantial in scope.
At their core, the proposed rules rewrite the Section 7 consultation process, significantly limiting the need for U.S. Fish & Wildlife Service or National Marine Fisheries Service review of the actions proposed by other federal agencies, particularly in the context of informal consultation with the FWS and NMFS. By the regulation's own terms, "The intent of these proposed exclusions is to reduce the number of unnecessary consultations." Specifically, the proposed rule changes include:
(a) revising the informal consultation process associated with a biological assessment, giving more discretion to the federal agency proposing an action;
(b) narrowing the scope of "cumulative effects" in the ESA, even more so than the current scope (which in turn is already narrower than the cumulative impacts analysis required by the National Environmental Policy Act);
(c) narrowing the definition of "effects of the action" to require Section 7 consultation only when the action is an "essential" cause of the effects, meeting the legal notion of "but for" causation, and only when there is "clear and substantial information" that the effects are "reasonably certain to occur."
(d) clarifying when a proposed federal action has "no effect" on a species, and thus eliminating the need for consultation for actions with "discountable" or "insignificant" or "not capable of being meaningfully identified or detected" or "remote" effects;
(e) reinforcing the view that there is no need to consult on the effects of greenhouse gas emissions;
KEITHINKING: In its explanation of some of the proposed changes, the draft rule offers a reasonable and even important insight. For example, the document states that: "In 1986... very few Federal action agencies had any in depth expertise with section 7 and listed species. For that matter, the more complex consultation process was relatively new to the Services (FWS and NMFS) as well... We recognize that Federal action agencies have more expertise now than in 1986, and are much more aware of the consequences and significance of their findings..." While reasonable minds may disagree, and the specific proposals might go further than some people think necessary, the "experienced agency" theory quoted above does provide logical support for some changes in the ESA, and especially in the informal consultation process. However, by tying the proposed rule to climate change discussion, the proponents of the rule have done a disservice to their objectives. Critics of this proposed rule -- empowered and perhaps justified by the secrecy in which the rules were developed -- will declare it to be nothing more than an over-reaction to the potential for the ESA to be used (or abused) as part of the climate change policy debate. And that fact, in turn, simply highlights (again) the utter lack of a reasonable national policy for dealing with an issue that may become the defining problem of the century. In other words, rather than tackling the problem of climate change by seeking appropriate new laws, officials in FWS and NMFS have proposed rewrites to the tangentially-related Endangered Species Act, and even if the rewrites had merit, that merit will be lost in a noisy and emotional debate.