In an effort to cripple attempts by environmentalists to use the Endangered Species Act as a tool for regulating gases responsible for climate change Secretary of the Interior, Dirk Kempthorne, proposed changes to the ESA that would minimize the necessity for federal agencies to seek US Fish and Wildlife Service consultation about the impact of proposed projects on endangered species.
Kempthorne’s proposal was precipitated by the recent listing of Polar Bears as an endangered species that resulted from a lawsuit by environmentalist groups.
A press release from the Office of the Department of Interior states, “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. Under the proposed rule, agency actions that could cause an adverse impact to listed species are still subject to the consultation requirement.”
“The proposed rule is consistent with the FWS current understanding that it is not possible to draw a direct causal link between greenhouse gas (GHG) 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.”
Beyond greenhouse gas regulation the proposed ruling may also impact decision-making related to a variety of development projects including oil and gas drilling, road construction projects, and actions on private lands, which could impact a variety of species through disturbance and habitat loss.
The National Wildlife Federation summarizes the proposed changes as follows:
•Eliminate informal consultations. Currently, federal agencies seeking to carry out, fund or permit an action must enter into either formal or informal consultation with the Fish and Wildlife Service if the action is found to have any affect whatsoever on a listed species. The Bush Administration wants to significantly reduce informal consultations by allowing proponents of federal projects to decide unilaterally whether projects have adverse effects on listed species. This would eliminate the ability of the Service to review projects and employ its expert scientific judgment about what is needed to protect species and habitats unless an agency requests an informal consultation.
•Reduce the number of formal consultations. These are the in-depth reviews that lead to the preparation of a biological opinion, in which the Service determines whether a project will jeopardize listed species or adversely modify its critical habitat and, if so, how the project must be modified to avoid harm. The proposed changes eliminate the requirement for formal consultation any time that an agency unilaterally determines that a project will have no adverse effect on listed species.
•Avoid or minimize consultations based on "Lack of Causation" arguments. Under this rule, agencies could avoid consultation if they determine their action will have only a “marginal” impact on a listed species, ignoring the fact that the cumulative effect of “marginal” piecemeal destruction of habitat quantity and quality is one of the main causes of species decline and extinction.
•Impose an arbitrary deadline on the consultation process. Perhaps most outrageously, the Administration proposes to impose a 60-day deadline on the Service to respond to an agency’s request for consultation and, if this deadline is not met, to allow the project to go forward regardless of the impacts of the project on listed species.
While these rules will be formally presented in the coming weeks, which will be accompanied by a 60-day comment period, the Associated Press was able to obtain a draft copy of the proposed changes. You can also download a pdf draft copy of the proposed changes here.
To read more about the proposed changes check out the National Wildlife Federation’s web-site or read the Associated Press article.
The National Wildlife Federation has established an e-action statement to enable people to voice their opinion. Click here to make your voice heard.
