August 21, 2008
Unnecessary Esa Rewrite
The Endangered Species Act has rightly been criticized for being slow and cumbersome. Eliminating a key provision of the act - which requires agencies that promote development, such as the Department of Transportation and the Bureau of Reclamation, to consult with agencies charged with protecting wildlife - is not the solution.
The Bush administration, through the Departments of Commerce and Interior, proposed such a change last week under the guises of "narrow" updates to the act. Far from narrow, this is a fundamental shift of responsibility. "The fox guarding the henhouse," was the favorite cliched description from environmental groups. Cliche or not, they are right.
The Office of Surface Mining has more interest in allowing ore to be mined than in protecting animals. The Army Corps of Engineers is more concerned with seeing dredging projects completed than ensuring fish habitat isn't destroyed. That's why consultation with the U.S. Fish and Wildlife Service, for projects on land, and the National Marine Fisheries Service, for marine projects, has long been required for work on federal land, paid for with federal funds or requiring federal permits.
Proposed new rules, published last Monday, would eliminate all formal consultation, instead allowing the federal agencies to decide whether proposed projects pose a threat to species protected by the ESA. Informal consultations would still be allowed if the federal agencies overseeing the projects wanted advice or review by the wildlife or fisheries service.
A major shortcoming of this proposal is that it aims to correct a problem that is more perception than reality.
Between 1987 and 1996, the U.S. Fish and Wildlife Service reviewed approximately 186,000 projects for possible impact on listed species. In only 5046 cases - less than 3 percent - were the projects deemed to adversely affect those species, requiring formal consultation. Of these, 607 concluded that a listed species would be jeopardized, but most could go forward if modified. During this time, only 100 - 0.0005 percent of the total reviewed by the service - were blocked due to endangered species concerns.
In Maine, between 1990 and 2005, the service reviewed more than 1,100 projects. In only eight was a formal consultation warranted. In each of these cases, the service found that the work could be done without harming the species in question, most often bald eagles, and the projects were allowed to proceed.
In another major overreach, the proposed rules eliminate climate change as a consideration when reviewing projects and their potential to harm threatened and endangered species. This follows last year's Supreme Court ruling that the Environmental Protection Agency had the authority to regulate the emission of carbon dioxide and other greenhouse gases from cars. The agency had argued that carbon dioxide was not a pollutant so the federal government could not regulate it.
Just as the EPA has refused to follow the court's ruling, now the wildlife and fisheries services are saying greenhouse gas emissions are beyond their reach. The proposed rule basically says that because the consequences of global warming are difficult to quantify and pinpoint, they shouldn't be considered at all. By this rationale, no agency in the U.S. is responsible for reducing America's contribution to a growing global problem.
These changes will likely go into effect unless Congress stops them, or a court does later. Congress must step in now.
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