Gutting the Endangered Species Act, or how a law becomes policy

A few days ago, I mentioned some revisions of the regulations implementing the Endangered Species Act, changes which would gut key provisions. In addition to imposing an arbitrary time limit on what decision-makers could examine regarding potential threats to a species, the new regulations would delegate many powers to state governments, water down the standards used to judge whether a species is endangered, and allow habitat destruction that could harm endangered species. PEER and the Center for Biological Diversity has a handy comparison guide for some major changes.

Regulations are the part of the legislative process that happens after what Schoolhouse Rock taught you about a bill becoming law. Congress passes a bill that lays out the standards and principles it wants to see applied, the president signs it, then agencies issue regulations which implement those standards. For instance, the Endangered Species Act as passed defines "endangered species" as "any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this Act would present an overwhelming and overriding risk to man." A "species" is "any subspecies of fish or wildlife or plants, and any distinct population segment of any species or vertebrate fish or wildlife which interbreeds when mature." And that may seem clear, but what's a population segment? When is a population subsegment "distinct"? What's a subspecies? What does it mean to be in danger of extinction? What is a significant portion of a species range? What is a species' range anyway?

Those are the questions that agencies have to address as they enforce and carry out the law, and regulations – published in the Code of Federal Regulations – implement laws and sort out those complexities. They tend to get less public scrutiny than Congressional actions, and can be more convoluted, too. That is why there's been a lot of controversy about decisions to place political appointees deep into the process of making regulations and advisory rulings. The more political those regulations become, the further they go towards creating an alternative legislative path, rather than a technocratic implementation of legislative will.

As an example, a report from the Interior Department Inspector General says Julie MacDonald overrode the work of scientists. We've discussed MacDonald before, she's a deputy assistant Secretary of the Interior, trained as a civil engineer, not a biologist. That hasn't stopped her from editing scientific reports and exerting pressure on people who make decisions about listing endangered species:

When the inspector general asked her "why she ignored or discounted" legal opinions from the regional offices, the report said, "MacDonald replied it was a matter of policy, it was what worked best, and it was the result of the risk balancing that takes place" between pursuing policy goals and ensuring decisions have an adequate basis.

She also denied giving preferential treatment to a California Farm Bureau lobbyist who was a friend, or to any of his clients.

The inspector general also found that Ms. MacDonald had sent internal government documents by e-mail to a lawyer for the Pacific Legal Foundation — a property-rights group that frequently challenges endangered-species decisions.

She twice sent internal Environmental Protection Agency documents — one involving water quality management — to individuals whose e-mail addresses ended in "chevrontexaco.com," the report said.

She undoubtedly had a hand in the new ESA regulations, which also borrow heavily from proposals Rep. Richard Pombo had been pushing until he got knocked out of Congress by Jerry McNerney.

The place for major policy choices is Congress, not the executive regulatory process. The idea that changes rejected by Congress and by voters would be revived through the regulatory process is deeply troubling, as is MacDonald's attitude towards legal opinions by civil servants. There is no doubt that the executive branch makes policy choices, but those choices must be constrained by the law and the will of Congress. They certainly should not be made by anti-wildlife activists or oil companies.

And while we're on the topic, Jerry McNerney is facing heavy attacks from the Republicans. You should give him a hand today. Strong fundraising in the period ending today will help scare off Pombo and his allies.