WASHINGTON — New legal memos by top Bush administration officials say that the Endangered Species Act can't be used to protect animals and their habitats from climate change by regulating specific sources of greenhouse gas emissions, the cause of global warming.
The assessment, outlined in memos sent earlier this month and leaked Tuesday, provides the official legal justification for limiting protections under the Endangered Species Act.
One of the memos, from the Interior Department's top lawyer, concluded that emissions of greenhouse gases from any proposed project can't be proved to have an impact on species or habitat, so it isn't necessary for federal agencies to consult with government wildlife experts about the impact of such gases on species as stipulated under the Endangered Species Act.
The legal opinions about the Endangered Species Act come as the Bush administration seeks to change regulations to reduce the role that government wildlife experts have in protecting animals from the effects of climate change.
The administration proposed the changes in August. Tuesday was the last day for public comment. Public opposition was massive.
The August proposed changes would allow federal agencies to decide for themselves whether timber sales, dam building or other projects harm wildlife, in many cases without consulting with the agencies charged with administering the Endangered Species Act, the Fish and Wildlife Service and the National Marine Fisheries Service.
The Endangered Species Act prohibits any federal actions that would jeopardize the existence of a listed species or "adversely modify" critical habitats. The 1973 law has helped save species such as the bald eagle, the grizzly bear and the manatee.
"They are reinterpreting the law in ways many believe are unlawful," said Jamie Rappaport Clark, who was the director of the Fish and Wildlife Service during the Clinton administration and now is the executive vice president of Defenders of Wildlife, a group that works to protect and restore wild animals and plants in their natural habitats.
Clark said career people weren't consulted, and that the system for federal agencies to meet with the Fish and Wildlife Service and the National Marine Fisheries Service didn't need to be revised.
Clark said many federal agencies lacked the biological expertise to determine whether their projects harmed wildlife, but that the bigger issue was conflict of interest.
"When you have the Forest Service or the BLM (Bureau of Land Management) or the Defense Department or whoever, they have a different primary mission," she said. The two wildlife services have knowledge about the species protected under the act and "they become the check and balance for the Forest Service in assessing the impacts of their timber cuts and so on."
John Kostyack of the National Wildlife Federation said the consultations were a cornerstone of the law. "Allowing federal agencies to forgo this process would put America's treasured plants, fish and wildlife at risk."
Eric Biber of the University of California, Berkeley, School of Law, and professors from 17 other law programs criticized the proposed rule change Monday and said they'd send comments to the government.
"The rules are overbroad, rushed and possibly illegal," Biber said. "Given the timing of the proposed changes, it's clearly an effort by the administration to weaken the regulations before President Bush leaves office."
Interior Department spokesman Chris Paolino said the department planned to read all the comments and research the issues they raised before deciding whether to change the rule.
The change doesn't require congressional approval.
Barack Obama's campaign said in August that the Democrat would undo the rule change if he were elected. John McCain's campaign at the time reportedly had no comment. His campaign headquarters press department didn't return a call requesting comment Tuesday.
Clark said the Interior Department memo also was significant.
The Oct. 3 memo from Interior Solicitor David Bernhardt to Secretary Dirk Kempthorne, which was released Tuesday by Public Employees for Environmental Responsibility, concluded that indirect effects on wildlife can't be traced to emissions from any specific source and that cumulative effects "are of no relevance" under the Endangered Species Act.
Clark said, however, "The bottom line is the Endangered Species Act does not contemplate singling out of threats to a species' survival and deciding well, this threat is not going to be considered by the ESA." Climate change is "one of the most obvious threats to species sustainability, and to say we're going to give it a pass, that's just clearly nonsensical."
Another document released by Public Employees for Environmental Responsibility, an Oct. 10 letter from James Lecky, the director of the National Marine Fisheries Service's Office of Protected Species, agreed with a recent EPA finding that the harm from the greenhouse-gas emissions of a single coal-fired power plant would be so remote that it shouldn't provoke government action.
The letter also agreed with the Fish and Wildlife Service, which argued in May, when the Interior Department listed the polar bear as a threatened species, that it wasn't possible to establish a link between a single source of carbon dioxide and specific harmful climate impacts.
(Michael Doyle and David Goldstein contributed to this article.)
ON THE WEB:
MORE FROM MCCLATCHY:
McClatchy Newspapers 2008