The Washington Post
Tuesday, August 12, 2008
The Bush administration yesterday proposed a regulatory overhaul of the
Endangered Species Act to allow federal agencies to decide whether protected
species would be imperiled by agency projects, eliminating the independent
scientific reviews that have been required for more than three decades.
The new rules, which will be subject to a 30-day per comment period, would
use administrative powers to make broad changes in the law that Congress has
resisted for years. Under current law, agencies must subject any plans that
potentially affect endangered animals and plants to an independent review by
the Fish and Wildlife Service or the National Marine Fisheries Service.
Under the proposed new rules, dam and highway construction and other federal
projects could proceed without delay if the agency in charge decides they
would not harm vulnerable species.
In a telephone call with reporters yesterday, Interior Secretary Dirk
Kempthorne described the new rules as a "narrow regulatory change" that
"will provide clarity and certainty to the consultation process under the
Endangered Species Act."
But environmentalists and congressional Democrats blasted the proposal as a
last-minute attempt by the administration to bring about dramatic changes in
the law. For more than a decade, congressional Republicans have been trying
unsuccessfully to rewrite the act, which property owners and developers say
imposes unreasonable economic costs.
"I am deeply troubled by this proposed rule, which gives federal agencies an
unacceptable degree of discretion to decide whether or not to comply with
the Endangered Species Act," said Rep. Nick J. Rahall II (D-W.Va.), chairman
of the House Natural Resources Committee, who asked for a staff briefing
before the proposal was announced but did not receive one. "Eleventh-hour
rulemakings rarely, if ever, lead to good government -- this is not the type
of legacy this Interior Department should be leaving for future
generations."
Bob Irvin, senior vice president of conservation programs at the advocacy
group Defenders of Wildlife, questioned how some federal agencies could make
the assessments, since most do not have wildlife biologists on staff.
"Clearly, that's a case of asking the fox to guard the chicken coop," Irvin
said, adding that the original law created "a giant caution light that made
federal agencies stop and think about the impacts of their actions." He
said, "What the Bush administration is telling those agencies is they don't
have to think about those impacts anymore."
But Dale Hall, who directs the Fish and Wildlife Service, said the move
would not apply to major federal projects and would give his agency more
time to focus on the most critically endangered species rather than
conducting reviews of projects that pose little threat.
"We have to have the ability to put our efforts where they're needed," Hall
said, adding that individual agencies will have to take responsibility if
their projects do harm a protected species. "This really says to the
agencies, 'This law belongs to all of us. You're responsible to defend it.'
"
The new rules would also limit the impact of the administration's decision
in May to list the polar bear as threatened with extinction because of
shrinking sea ice.
At the time of that decision, Kempthorne said he would seek changes to the
Endangered Species Act on the grounds that it was inflexible, adding that it
had not been significantly modified since 1986. In a statement yesterday,
the Interior Department declared that even if a federal action such as the
permitting of a power plant would lead to increased greenhouse gas
emissions, the decision would not trigger a federal review "because it is
not possible to link the emissions to impacts on specific listed species
such as polar bears."
Kempthorne said the new regulations included that language "so we don't
inadvertently have the Endangered Species Act seen as a back door to
climate-change policy that was never, ever intended."
Tim Coyle, senior vice president for governmental affairs at the California
Building Industry Association, said in an interview that while his
association would have to read the rules before making a judgment, he
welcomes Kempthorne's statement on the polar bear because it offered
"clarity on an issue that if it was left broad and ambiguous, could be a
serious problem for the home-building industry here in California." He
added: "For home builders, clarity in the rules is always, always helpful."
Although Kempthorne said he had received "encouragement from both sides of
the aisle to see if we couldn't bring about steps that would make the
Endangered Species Act more effective," his proposal opened a new front in
the ongoing battle between the administration and Congress on the
environment.
An aide to Sen. Barbara Boxer (D-Calif.), who chairs the Environment and
Public Works Committee, said she, like Rahal, had requested but not received
a briefing. The panel is drafting a letter to Interior and will hold an
oversight hearing, the aide said.
In a statement, Boxer called the rules change "another in a continuing
stream of proposals to repeal our landmark environmental laws through the
back door" and added: "I believe it is illegal, and 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."