Proposed Changes to Endangered Species Act Rule Would Further Endanger Species

One recurrent theme of the Bush Administration’s regulatory approach has been the weakening of protective regulations – not just by weakening standards, but by erecting bureaucratic barriers to progress. In mid-August, the U.S. Fish and Wildlife Service (FWS) provided another example of the later approach, proposing changes to rules implementing the Endangered Species Act (ESA)—changes that would result in less protection for the endangered and threatened species the ESA charges the FWS with protecting.

The changes would affect the rules that implement Section 7 of the Act, which requires federal agencies “in consultation with and with the assistance of” FWS and its counterpart wildlife agency, the National Marine Fisheries Service (NMFS), to “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species . . . or result in the destruction or adverse modification of habitat of such species.” CPR filed comments on the proposed rule, authored by Member Scholars Holly Doremus, Rob Glicksman, Alex Camacho and Dan Rohlf, joined by UC Davis conservation biologist Mark Schwartz and myself.

To understand the gravity of the proposal, a little history is in order. When Congress passed the ESA, it recognized the bureaucratic impulse that would incline federal agencies dedicated to a wide variety of different missions (some unrelated and even at odds with species protection) to resist careful evaluation of their actions from the perspective of whether species would be harmed. So Congress included the requirement that agencies proposing to take some action (the “action agencies”) – for example providing federal funding for a new highway – consult with FWS and NMFS (the “wildlife agencies”), which have as part of their primary mission implementation of the ESA and protection of species.

The rule created a healthy tension between agencies. But the new proposal from FWS opens a route by which action agencies can decide on their own, without consulting with the wildlife agencies, that their actions won’t adversely affect endangered species – effectively sidelining FWS and NMFS from of the process.

The reasons for this and the other changes the rule proposes are left unclear by the proposal. The rule states that the consultation process has become burdensome and opines that action agencies now have enough experience with the Act’s requirements that they can make these determinations on their own. But neither assertion is backed up with any support. In fact, recent experience strongly suggests that action agencies continue to require the assistance of the wildlife agencies to (among other things) properly use the best available scientific information to support analyses of whether or not actions affect listed species, as the ESA requires. So it seems Congress’s requirement that the action agencies consult with the wildlife agencies was far-sighted, and its concern remains warranted even 35 years after the statute was passed.

Significantly, in fact, Congress had the opportunity to rollback the consultation requirement several years ago, and declined. Legislation euphemistically called the Threatened and Endangered Species Recovery Act (TESRA) would have amended the ESA in multiple ways. One provision that would have authorized the wildlife agencies to do what they are now trying to do on their own – create ways for action agencies to nominally fulfill the Act’s consultation requirements unburdened by meaningful consultation! Now the Administration is trying to accomplish by regulation what TESRA’s sponsors could not achieve in legislation.

Ultimately, the impetus for these proposed changes seems to be a desire on the part of the outgoing Administration to ensure that the ESA does not become the vehicle for regulating greenhouse gases. In May, the Administration was forced to list the polar bear as threatened under the Act due to the impacts on its habitat from climate change. Undoubtedly, there are challenges to considering climate change in ESA consultation proceedings. But in their proposal, FWS and NMFS make no effort to grapple with them. Instead, they seek to escape any responsibility for dealing with the problems greenhouse gas emissions pose for endangered and threatened species. That reaction is inconsistent with both the purposes and the text of the ESA.

Climate change may be the single most important threat to biodiversity. Just last week, a study by the World Conservation Union (IUCN) revealed that 35 percent of the world’s birds, 52 percent of amphibians, and 71 percent of warm-water reef-building corals are likely to be susceptible to climate change. FWS and NMFS, the agencies entrusted with implementing the ESA to achieve its conservation purposes, should be carefully considering the ways in which the Act may be useful in addressing this immense threat to biodiversity. Instead they seem to be straining to find any interpretation that might help them avoid considering climate change at all.

Despite the short period FWS provided for public comment (initially 30 days, then extended to 60 days), nearly 50,000 comments were filed electronically, with another 100,000 hand-delivered by the Endangered Species Coalition, Natural Resources Defense Council, Earthjustice, Sierra Club, National Audubon Society and Defenders of Wildlife. Environmentalists are hopeful that FWS will heed the opposition expressed in the vast majority of these public comments and withdraw the proposed changes to the consultation rule. However, according to an e-mail obtained by the Associated Press, the Department of the Interior plans to sort through all public comments received (numbers may be as high as 200,000 unique comments) in an astonishingly brief four-day period, with the goal of issuing the final rule by early November. According to Fish and Wildlife Service Director Dale Hall, the short time frame for processing the comments was requested by Interior Secretary Kempthorne and would set a record.

It is clear now that climate change poses a huge challenge to endangered species, and that it is time for a fresh look at our conservation goals and how we approach them. But these changes, initiated in the eleventh hour of an outgoing administration, with no clear justification and only the barest opportunity for (and consideration of) public input—is no way to launch a productive discussion.