Protection needed for the Endangered Species Act

In May the U.S. Department of the Interior listed the polar bear as a threatened species under the Endangered Species Act, the first to be so listed as a fairly direct result of climate change. Perhaps not coincidentally, only a few months later the Endangered Species Act became the latest environmental law to come under attack by the Bush Administration. On August 15, the Interior Department announced what many are calling the biggest overhaul of endangered species regulations in 20 years, effectively gutting key provisions of the act.

The proposed rules attempt to accomplish by executive mandate sweeping changes that have been repeatedly rejected by Congress. Of most concern, the new rules severely limit the consultation provisions of the act, which require federal agencies to have their actions reviewed by independent scientists at the Fish and Wildlife Service and the National Marine Fisheries Service for possible effects on endangered species before implementation. The Interior Department has already been inundated with comments criticizing the proposed rules, but most experts expect it to finalize them as currently written at the end of the limited 30-day comment period. In that event, any incoming administration should make reversal of the rules a priority during its first days in office.

The Endangered Species Act was passed in 1973 during the Nixon Administration to protect endangered species and their ecosystems. Bald eagles, grizzly bears and peregrine falcons have all been brought back from the brink of extinction as a result of the act’s protections, particularly by the Section 7 consultation requirements now under attack. Under that section, thousands of consultations take place each year between federal agencies and experts at the FWS and the NMFS to determine whether government projects, including private and state projects requiring a federal permit, will have an impact on endangered species or habitats. In practice, most projects are approved, but many with accommodations that protect the 744 plants and 609 animals that are currently listed as threatened or endangered in the United States.

Despite the law’s successes, the Bush Administration has attempted to roll back its protections in countless ways over the last eight years, largely at the urging of the logging, building, mining and transportation industries which complain about increased costs of regulation. Experts claim for example that the Interior Department has introduced flawed economic methods to recalculate and overstate economic costs over the benefits of protecting habitats, and has changed methods for evaluating whether a species’ range is in peril to make such a finding difficult. In addition, administration officials regularly overrule agency scientist recommendations; all to limit the number of new protected species. As a result, while federal officials added an average of 32 new species to the list each year under President Reagan, 58 per year under President Bush Sr., and 65 per year under President Clinton, they have added an average of only 8 species per year under the current administration.

Sadly enough, this last minute attempt by the Bush Administration to limit the reach of the act appears to have been triggered by the plight of the polar bear, whose sea ice habitat is shrinking as a result of climate change. In announcing the rules, Interior Secretary Dirk Kempthorne stressed that changes are needed to ensure the Endangered Species Act is not used as a “back door” to regulate greenhouse gases. The proposed rules limit considerations of global warming by requiring federal agency consultations only when there is “clear and substantial information” tying the proposed subdivision, highway or dam to the “essential cause” of harm to a listed species. Agencies need not consult on any project they find to have inconsequential, uncertain, unlikely, or beneficial effects. The preamble to the regulations cites global warming as an example of an effect that would not be evaluated under these new criteria.

Significantly, it is the federal agency not the FWS or the NMFS that determines whether a consultation is necessary under these new, ambiguous standards. Now the U.S. Army Corps of Engineers, the Department of Transportation, and the Office of Surface Mining, to name a few, may decide for themselves without independent scientific review whether their newest hot project is likely to impact endangered species. The conflict of interest here is obvious, and the lack of objective scientific evaluation of future government and private development will undoubtedly significantly increase development at the expense of protected wildlife.

This race to eviscerate the Endangered Species Act is the wrong way to modify federal law. Similar changes were rejected in Congress several times over the last few years, but because the administration is now only revising regulations, Congress does not have a say this time around. Critics contend the public has little say either given the restricted 30-day comment period, which is normally 60-90 days for such major regulatory reform. However, the next administration will. And in the event public comments are ignored and the regulations are pushed through, it is up to the next administration to make rolling back these hasty changes one of its first priorities in office.

Catherine McClure is an Ann Arbor-based legal affairs writer who practiced law with major firms in Los Angeles, Chicago, and Ann Arbor. She has also served as a professor of law in the business schools of Michigan State University and the University of Michigan. McClure received a B.A. and M.A. from the University of Michigan, and her law degree from the University of California at Berkeley. She can be reached as mcclur@umich.edu