In the excitement of the Olympics, the run-up to the presidential conventions and the flurry of late summer vacations, it was easy to miss the Bush administration's stealth attack on the Endangered Species Act last week. A proposed regulation would simply eliminate independent scientific reviews that have been required for over 30 years.
"I have been working on the Endangered Species Act for 15 years and have never seen such a sneaky attack," declared John Kostyack, executive director of wildlife conservation and global warming at the National Wildlife Federation.
In a proposal, first reported by the Associated Press, biologists from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service would no longer have input into the actions of many other federal agencies in evaluating projects that could impact endangered species.
Essentially it would be up to officials at agencies like the Forest Service, the Minerals Management Service and the Department of Transportation to decide for themselves if a new timber allotment, mining project or road would harm endangered animals and plants, without consulting third-party biologists from Fish and Wildlife.
Many of the agencies, which would now be making decisions affecting the fate of species themselves, don't even have biologists on staff to make such determinations. The proposal presents a conflict of interest, which could effectively gut the Endangered Species Act, by asking the very agencies the act regulates to also enforce it. A 2008 Fish and Wildlife Service memorandum obtained by environmentalists states that when agencies regulated themselves in the past, they consistently violated the Endangered Species Act.
If the new regulation is approved by the Department of the Interior in the next couple of months, it would undercut the authority of the Endangered Species Act. "With this change, the Bush administration threatens to undo more than 30 years of progress," said Kostyack. "This move is consistent with other efforts by the administration to cement industry-friendly policies before leaving office in January."
The Department of the Interior maintains the new regulation won't change the Endangered Species Act. Only Congress can do that. If agencies choose not to consult the Fish and Wildlife Service under the proposed policy, and fail to protect endangered species, they will be liable. "There is nothing that allows an agency of the federal government to not obey the Endangered Species Act, and the agencies are liable under civil and criminal penalties if they do not obey," says Tina Kreisher, director of communications for the Department of the Interior.
Back in May, when the Department of the Interior reluctantly listed the polar bear as a threatened species, due to global warming ravaging its habitat, U.S. Interior Secretary Dirk Kempthorne specified that he would make rules in the future to try to limit the scope of that listing. Now he has done just that.
Announcing the proposal last week, the Department of the Interior asserted that greenhouse gas emissions are exempt from regulation under the Endangered Species Act. It stated the "proposed rule is consistent with the FWS [Fish and Wildlife Service] current understanding it is not possible to draw a direct causal link" between the fate of a species, like the polar bear, and greenhouse gas emissions.
Environmentalists say the Bush administration's motive is to preempt environmental groups from suing the government in the name of protecting the polar bears when the feds do things that would increase greenhouse gas emissions, like approving new coal-fired power plants.
To add insult to injury, the Bush administration said it will accept public comment on the proposed changes for a mere 30 days, and it will not accept such comments via e-mail, which is the common way that many environmental groups activate their memberships to fight egregious policies. The U.S. Fish and Wildlife Service is now accepting public comment about the proposed changes through Sept. 15 on the Regulations.gov Web site.
Rep. Nick J. Rahall II, D-W.V., chairman of the House Natural Resources Committee, called the proposed changes to the enforcement of the Endangered Species Act "deeply troubling." Sen. Barbara Boxer, who chairs the Environment and Public Works committee, said that they're "illegal." The senator from California has legal precedent for that charge. In 2003, the U.S. Environmental Protection Agency approved hundreds of pesticides for use without consulting either the U.S. Fish and Wildlife Service or the National Marine Fisheries Services about their implications for endangered wildlife and sea critters. When environmental groups sued, a federal judge ruled against the EPA.
"It takes great hubris to resurrect an issue the court has already definitely struck down," stated Patti Goldman, an attorney for Earthjustice. "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 Department of the Interior has tried to drum the Fish and Wildlife Service out of endangered species decisions before. In 2004, the Forest Service and the Bureau of Land Management began allowing timber sales without first consulting biologists for Fish and Wildlife about the potential impact on endangered species. Environmental groups are currently suing the agencies in federal court in Washington over the policy. But before a judge has ruled on the legality, the agency's own scientists weighed in.
In 2008, the Fish and Wildlife Service issued a memorandum documenting an audit of how well those agencies regulated themselves. The result: Without the oversight of Fish and Wildlife, the agencies violated the Endangered Species Act 62 percent of the time.
The Department of the Interior failed to publish the results of that review in the federal register. Now, it is attempting to implement a policy that its own biologists at the Fish and Wildlife Service have documented does not work.
"This is akin to a drug company suppressing results showing that a medicine is killing people, and then trying to put the medicine broadly on the market," says Kieran Suckling, executive director of the Center for Biological Diversity in Tucson, Ariz.
In the last seven and a half years, the Bush administration has been no friend to the nation's flora and fauna, refusing to consider extending protections to the likes of the polar bear until it's been sued in court to do so by environmental groups. So, it's probably a good thing for wildlife that the Bush administration is itself an endangered species.
A spokesperson for the Obama campaign told the Associated Press that if elected president, the candidate would kill the new regulation. "As president, Senator Obama will fight to maintain the strong protections of the Endangered Species Act and undo this proposal from President Bush," Obama campaign spokesman Nick Shapiro told the AP. "After over 30 years of successfully protecting our nation's most endangered wildlife like the bald eagle, we should be looking for ways to improve it, not weaken it."
Sen. John McCain's campaign office had no comment.