NWF Warns Of "Sneaky Attack" On Endangered Species Act

Aug 11: According to leaked documents obtained by the National Wildlife Federation (NWF), the Bush Administration plans to rollback protections for America’s imperiled wildlife by re-writing the regulations of the Endangered Species Act (ESA). The proposed changes would weaken the safety net of habitat protections that have helped protect and recover endangered fish, wildlife and plants for the past 35 years.

John Kostyack, Executive Director of Wildlife Conservation and Global Warming at the NWF said, “I have been working on the Endangered Species Act for 15 years and have never seen such a sneaky attack. To suggest that our nation's most important wildlife law could be gutted after a mere 60 day written comment period is the height of arrogance and disrespect for wildlife science. Elected officials have been saying no to proposals like this for 15 years. Do not be fooled when the Administration claims it is merely tweaking the law. The cumulative impact of these changes equals a full blown attack on America’s premier conservation law. We owe it to future generations to stop this attack and continue our legacy of protecting wildlife on the brink of extinction.”

NWF indicated in a release that since 1973, the ESA has served as "America's safety net for wildlife." NWF said it has saved hundreds of species from extinction, put hundreds more on the road to recovery and safeguarded the habitats upon which they depend. Without it, the bald eagle, condor, gray wolf, grizzly bear, Florida panther, manatee and hundreds of other species would be extinct today. The proposed changes target the ESA's "consultation process," which serves as the main safety net for species on the brink by allowing scientists with the U.S. Fish and Wildlife Service to determine if listed species will be harmed before moving forward with activities such as logging, mining or filling of wetlands.

Late Monday, August 11, Secretary of the Interior (DOI) Dirk Kempthorne announced that he was following through on his commitment to propose "common-sense modifications" to the existing ESA regulations. When Secretary Kempthorne on May 15, 2008, listed the polar bear as a “threatened species” under the ESA, he said the ESA was not the right tool to set U.S. climate policy or regulate green house gas emissions. DOI indicated in a release that the proposal is intended to update a portion of the ESA regulations dealing with section 7 of the Act. Section 7 governs the endangered species responsibilities of Federal agencies. The proposed changes to the regulations are designed to reflect current practices and recent courts cases. DOI said, "The changes will make it easier for agencies to understand when and how the regulations apply. While this rule will help avoid misuse of the ESA to regulate climate change, the rule will also generally improve the consultation process."

Each Federal agency is responsible under the regulations to consult with the U.S. Fish and Wildlife Service (FWS) or the National Oceanic and Atmospheric Administration (NOAA) before they undertake an action that may affect an endangered species. Such consultation may involve either a formal written request or it may be an informal conversation between the agencies. The purpose of these proposed changes is to clarify process, replace ambiguous definitions, explain when formal consultation is applicable, and improve the informal consultation process.

Kempthorne said, “ESA consultations in the 21st century address increasingly complex issues. We need a regulatory framework to guide those consultations that is consistent with the ESA and will address new challenges such as climate change,” said Kempthorne. “The existing regulations create unnecessary conflicts and delays. 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.”

Dale Hall, Director of the Fish and Wildlife Service said, “The purpose of these changes is to reduce ambiguity, improve consistency, and narrow interpretive differences, even within the Services. They are a positive step forward. In 1986, our existing rules made sense. At that time very few Federal action agencies had any in-depth expertise with section 7 and listed species, but that is not the case today. We are not being good stewards of our resources 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.” DOI said the announcement was being made in conjunction with the National Marine Fisheries Service (NMFS) under the Department of Commerce which shares responsibility for implementing the ESA.

DOI said, 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. DOI said, "The Bush Administration has acknowledged climate change as a serious problem but has stressed that the proper forums to address it are through the Congress and the Bali Action Plan."

Finally, DOI said the proposal also adds timelines to help limit the duration of informal consultation and lend greater certainty to the process. It would allow action agencies to terminate consultation if the Fish and Wildlife Service has not acted on its request for concurrence within 60 days. However, the Service may request an additional 60 days. If, after that time, there is no written determination from the Service within the appropriate time frame, the action agency may terminate the consultation. The Department is seeking comment on this proposal for the next 30 days.

Noah Greenwald, science director at the Center for Biological Diversity (CBD), the lead organization that filed the formal petition to list the polar bear under the Act said, “The proposed regulations are an absolute disaster for the nation’s endangered species. Secretary Kempthorne seems determined to establish a legacy of environmental destruction and extinction and surpass even James Watt as the most anti-environmental interior secretary in U.S. history. These regulations are a recipe for the extinction of endangered species. It’s a classic example of letting the fox guard the henhouse. It would allow thousands of projects that harm endangered species to move forward without mitigation.”

Earthjustice Vice-President of Litigation Patti Goldman said, "It takes great hubris to resurrect an issue the court has already definitely struck down. This is like a zombie movie… their proposal to toss the Endangered Species Act over the cliff died, but now has somehow come back to life. The Bush/Cheney administration is looking back over the last eight years to see what real benefits they've brought to those who favor short term gain over our environment. They have little to show due to vigilance by conservation, fishing, and hunting groups who have worked to hold the line. Nonetheless, they're trying again to leave favors for powerful friends before leaving office." Environmental Defense and Sierra Club also issued releases (See below).

Access a release from NWF that summarizes the major proposals in the regulations and link to an analysis (click here). Access the draft regulations on the NWF website (click here). Access a release from DOI (click here). Access a release from CBD (click here). Access a release from Earthjustice (click here). Access a release from Environmental Defense (click here). Access a release from Sierra Club (click here). Access the FWS ESA website for additional information (click here). Access the NMFS ESA website for more information (click here). [*Wildlife, *Climate]