The Bush administration on Monday said it plans to let federal agencies decide for themselves whether highways, dams, mines and other construction projects might harm endangered animals and plants.
The proposal, which does not require the approval of Congress, would reduce the mandatory, independent reviews that government scientists have been performing for 35 years. Developers welcomed the plan, while environmentalists derided it.
Interior Secretary Dirk Kempthorne said late Monday the changes were needed to ensure that the Endangered Species Act would not be used as a “back door” to regulate the gases blamed for global warming. In May, the polar bear became the first species declared as threatened because of climate change. Warming temperatures are expected to melt the sea ice the bear depends on for survival.
"These changes are designed to reduce the number of unnecessary consultations under the ESA so that more time and resources can be devoted to the protection of the most vulnerable species," the Interior Department said in its announcement.
“The existing regulations create unnecessary conflicts and delays," added Kempthorne. "The proposed regulations will continue to protect species while focusing the consultation process on those federal actions where potential impacts can be linked to the action and the risks are reasonably certain to occur. The result should be a process that is less time-consuming and a more effective use of our resources."
The proposal would bar federal agencies from assessing the emissions from projects that contribute to global warming and its effect on species and habitats.
The Interior Department cited its recent decision on polar bears as an example. While listing polar bears as endangered due to melting sea ice habitat, it argues that scientists at this time cannot "draw a direct causal link between greenhouse gas emissions and distant observations of impacts affecting species.
"As a result, it is inappropriate to consult on a remote agency action involving the contribution of emissions to global warming because it is not possible to link the emissions to impacts on specific listed species such as polar bears," the department stated.
Kempthorne has instead urged lawmakers to deal with climate change via separate legislation, not the Endangered Species Act, which dates from 1973.
Biggest overhaul since 1988
The changes represent the biggest overhaul of the Endangered Species Act since 1988. They would accomplish through regulations what conservative Republicans have been unable to achieve in Congress: ending some environmental reviews that developers and other federal agencies blame for delays and cost increases on many projects.
The changes would apply to any project a federal agency would fund, build or authorize. Government wildlife experts currently perform tens of thousands of such reviews each year.
"If adopted, these changes would seriously weaken the safety net of habitat protections that we have relied upon to protect and recover endangered fish, wildlife and plants for the past 35 years," said John Kostyack, executive director of the National Wildlife Federation's Wildlife Conservation and Global Warming initiative.
"The new rules take decision-making on endangered species listings out of the hands of scientists and wildlife professionals at agencies such as the U.S. Fish and Wildlife Services, and instead put those decisions in the hands of agencies working on projects that may be adversely affected by a listing," added Sierra Club director Carl Pope.
Under current law, federal agencies must consult with experts at the Fish and Wildlife Service or the National Marine Fisheries Service to determine whether a project is likely to jeopardize any endangered species or to damage habitat, even if no harm seems likely. This initial review usually results in accommodations that better protect the 1,353 animals and plants in the U.S. listed as threatened or endangered and determines whether a more formal analysis is warranted.
Proposal: Agencies have expertise
The Interior Department said such consultations are no longer necessary because federal agencies have developed expertise to review their own construction and development projects, according to the 30-page draft.
"We believe federal action agencies will err on the side of caution in making these determinations," the proposal said.
The director of the Fish and Wildlife Service, H. Dale Hall said the changes will help focus expertise on projects that have serious repercussions for species. "We are trying to be more efficient, which means not do consultations that result in a difference for the species," Hall said.
"We are not being good stewards of our resources," he added, "when we pursue consultation in situations where the potential effects to a species are either unlikely, incapable of being meaningfully evaluated, wholly beneficial, or pose only a remote risk of causing jeopardy to the species or its habitat."
The proposal is subject to a 30-day public comment period before being finalized by the Interior Department, giving the administration enough time to impose them before November's presidential election. A new administration could freeze any pending regulations or reverse them, a process that could take months. Congress could also overturn the rules through legislation, but that could take even longer.
The proposal was drafted largely by attorneys in the general counsel's offices of the Commerce Department's National Oceanic and Atmospheric Administration and the Interior Department, according to a source with the National Marine Fisheries Service. The two agencies' experts were not consulted until last week, the official said.
Between 1998 and 2002, the Fish and Wildlife Service conducted 300,000 consultations. The National Marine Fisheries Service, which evaluates projects affecting marine species, conducts about 1,300 reviews each year.
The reviews have helped safeguard protected species such as bald eagles, Florida panthers and whooping cranes. A federal government handbook from 1998 described the consultations as "some of the most valuable and powerful tools to conserve listed species."
Those for, against changes
In recent years, however, some federal agencies and private developers have complained that the process results in delays and increased construction costs.
"We have always had concerns with respect to the need for streamlining and making it a more efficient process," said Joe Nelson, a lawyer for the National Endangered Species Act Reform Coalition, a trade group for home builders and the paper and farming industry.
Sen. Barbara Boxer, D-Calif., chairwoman of the Environment and Public Works Committee, called the proposed changes illegal.
"This proposed regulation is another in a continuing stream of proposals to repeal our landmark environmental laws through the back door," she said. "If this proposed regulation had been in place, it would have undermined our ability to protect the bald eagle, the grizzly bear and the gray whale."
The Bush administration and Congress have attempted with mixed success to change the law.
In 2003, the administration imposed similar rules that would have allowed agencies to approve new pesticides and projects to reduce wildfire risks without asking the opinion of government scientists about whether threatened or endangered species and habitats might be affected. The pesticide rule was later overturned in court. The Interior Department, along with the Forest Service, is currently being sued over the rule governing wildfire prevention.
In 2005, the House passed a bill that would have made similar changes to the Endangered Species Act, but the bill died in the Senate.
The sponsor of that bill, then-House Resources chairman Richard Pombo, R-Calif., told the AP Monday that allowing agencies to judge for themselves the effects of a project will not harm species or habitat.
"There is no way they can rubber stamp everything because they will end up in court for every decision," he said.
But internal reviews by the National Marine Fisheries Service and Fish and Wildlife Service concluded that about half the unilateral evaluations by the Forest Service and Bureau of Land Management that determined wildfire prevention projects were unlikely to harm protected species were not legally or scientifically valid.
Those had been permitted under the 2003 rule changes.
"This is the fox guarding the hen house. The interests of agencies will outweigh species protection interests," said Eric Glitzenstein, the attorney representing environmental groups in the lawsuit over the wildfire prevention regulations. "What they are talking about doing is eviscerating the Endangered Species Act."