This should come as no surprise, coming as it does on the heels of last week’s revelation that the Bush Administration is planning to change the federal definition of abortion in an effort to make it easier for our homegrown religious extremists to deny women their right to good reproductive healthcare: we’ve just learned that the Bush administration is proposing rule changes that will eviscerate the Endangered Species Act.
This is no joke. The National Wildlife Federation has a pdf of the leaked proposal, and their own analysis of the proposed changes. I’ve looked at the proposal, and NWF description is, if anything, an understatement of the effects that this rule change could have.
I’m going to go over some of the more disastrous of the proposed changes, and what they’ll mean for environmental protection efforts. I’ll also finish up with some suggestions for things you can do, but, realistically speaking, things are grim.
The first main set of changes are designed to take scientists and any meaningful scientific information out of the decision making process for most new federal projects:
(a) Section 7 of the Act and the requirements of this part apply to all actions in which the Federal agency has discretionary involvement or control.
(b) Federal agencies are not required to consult on an action when the direct and indirect effects of that action are not anticipated to result in take and:
(1) Such action has no effect on a listed species or critical habitat; or
(2) Such action is an insignificant contributor to any effects on a listed species or critical habitat; or
(3) The effects of such action on a listed species or critical habitat:
(i) Are not capable of being meaningfully identified or detected in a manner that permits evaluation;
(ii) Are wholly beneficial; or
(iii) Are such that the potential risk of jeopardy to the listed species or adverse modification or destruction of the critical habitat is remote.
(c) If all of the effects of an action fall within paragraph (b) of this section, then no consultation is required for the action. If one or more but not all of the effects of an action fall within paragraph (b) of this section, than consultation is required only for those effects of the action that do not fall within paragraph (b).
Everything except section (a) is a new rule.
What this means is that any federal agency will be able to do whatever they want, provided that they certify that they do not believe that their actions will result in the “take” of endangered organisms, and that they don’t believe that there will be any “significant” effects. There will be no oversight or examination to determine if that decision is correct (or even remotely plausible). The agency will be able to go ahead and do whatever they want.
This is bad, but it’s not the worst part. The worst, and sneakiest, part comes in the proposed changes to 402.13 (informal consultation) and 402.14.
402.13 Informal Consultation
(b) If the Service has not provided a written determination regarding whether it concurs with a Federal agency’s determination provided for in paragraph (a) of this section within 60 days following the date of the Federal agency’s request for such determination, the Federal agency may, upon written notice to the Service, terminate consultation without the Service’s concurrence. The Service may, upon written notice to the Federal agency within the 60-day period, extend the time for informal consultation for a period no greater than an additional 60 days from the end of the 60-day period.
403.14 Formal Consultation.
(b) Exceptions. (1) A Federal agency need not initiate formal consultation if, as a result of the preparation of a biological assessment under 402.12 or as a result of informal consultation with the Service under 402.13, the Federal agency determines that the proposed action is not likely to adversely affect any listed species or critical habitat, and the Director concurs in writing or informal consultation has terminated under 402.13(b) without a written determination by the Service as to whether it concurs;
This is the killer clause. The Fish and Wildlife service quite simply does not have the staff available to realistically meet the 60-day periods. (And you can bet that the 60-day period won’t be extended for an additional 60 days under this administration.
Want to clear cut spotted owl habitat? No problem. Get the Forestry folks to simultaneously initiate “informal consultation” on each of 50 or 60 separate patches of forest. As long as each can be termed a different project, there’s no problem. FWS might be able to get written determinations done on half of them, but they won’t be able to get through all of the drifts of paperwork you’re throwing at them before the 60 days are out. You’ll lose a few, but you’ll be totally free to clear cut all the rest to your heart’s delight.
And at the moment, there’s not much we can do. As of right now, the proposed change has not been published. Once it is, and the public comment period opens, we will have a chance to raise issues. I’ll keep an eye on the situation, and try to let you know when that is.
Update 1: Amazingly enough, it’s even worse than I thought – mostly because despite the lessons of the last several years, I still find it difficult to remember just how obstructive political appointees can be. If the administration is friendly to a particular project, it’s going to be approved no matter what under this new system. All they need to do is have one or two political appointees in place who can raise objections, counter-objections, lose paperwork, and otherwise run out the 60-day clock.