The Questionable Authority

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:

402.03 Applicability.

(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.

And, of course, you can always contact your Senators and Representative, and let them know you’re concerned about this issue.

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.


  1. #1 FutureMD
    August 11, 2008

    I guess this is his last chance to give a big fat middle finger to the environmentalists.

  2. #2 gthomson
    August 11, 2008

    Just when you thought Bush couldn’t possibly come up with any more stupid ideas in the time he has left in office, he comes up with another one.
    Can we put this guy into lame duck mode? He’s done enough harm to this country already.

  3. #3 trog69
    August 12, 2008

    Looks like Bush has realized that in order to make money speechifying, he has to have an organization that wants him. With the abortion terminology shift and this definite middle finger to enviros, he’s mending just enough fences to maybe grab a few extra bucks. Jeez.

    Jan,’09 seems a long way off now.

  4. #4 turkeyfish
    August 12, 2008

    Bush trashed the constitution, trashed the military, trashed the budget, trashed America’s standing in the world, trashed the economy, trashed human rights, trashed Habeus Corpus, trashed the UN, trashed the World Trade Organization, trashed separation of church and state, so he’s trying to leave office with a perfect score.

    Look for him to pardon all political appointees for all crimes they committed in the past, are committing now, or may commit in the future. He will be the only president in history who grants himself a pardon (in secret of course).

  5. #5 paul
    August 12, 2008

    Very political. Faced with certain upset in the congressional races they try this so that incumbent congress-people will vote them down. Then they can use these votes as ammunition against them in the elections.

  6. #6 Scott Hanley
    August 13, 2008

    Keep in mind that this is the same Administration which was shutting down EPA libraries and hastily dispersing their collections, just to make scientifically-informed decisions harder to make anyway.

  7. #7 wolfwalker
    August 17, 2008

    So to summarize these proposed changes: they, like all of Part 402, apply only to projects initiated and funded by a federal agency. Projects initiated by state and local government agencies, and projects initiated by private corporations, are not affected. The phrasing is vague and depends on subjective opinions, and can be interpreted in a wide variety of ways. In practice, they will mean that an ESA-friendly bureaucrat can find ways to apply the full weight of the ESA to any project, while an ESA-hostile bureaucrat can find ways to bypass the ESA for any project. Private citizens and organizations retain the right to sue to force the government to apply the ESA to any situation they think it should be applied to — exactly as recently happened with the polar bear fiasco.


    OK, then tell me: what, exactly, will actually change as a result of these proposed rules modifications?

  8. #8 Metro
    August 20, 2008

    Wolfwalker, let’s turn that around. I’ll make it an easier question into the bargain as well:

    If nothing actually changes, as you claim, the the Bush administration, with a track record on the environment in general similar to such stellar agencies as Exxon-Mobil, Monsanto, et al, made these new regs because:

    a) They really enjoy creating more language–Bush is known for his love of wordsmithing and his easy wit.

    b) They believe that the environment needs more protection from exploitation, and that that protection is best provided by private companies; Because outfits like Blackwater are doing such a great job privatizing war in Iraq.

    c) They’re out to &%*^ over the environment, and enable others to do the same without hindrance and inconvenient court cases.

    You’d have to be a blind, myopic, microcephalic mutant not to spot the correct answer. You’d also have to be totally ignorant of history, particularly the past eight years of it.

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