Environmentalists: New rule guts Endangered Species Act

McClatchy NewspapersDecember 11, 2008 

WASHINGTON — In a move environmental groups says strikes at the heart of the Endangered Species Act, the Bush administration on Thursday announced a new rule that would let federal agencies decide on their own whether their projects harm endangered species, instead of requiring them in many cases to get a second opinion from federal wildlife experts.

Opponents said the move destroys the checks and balances that have helped the government save hundreds of species from extinction under the 1973 law.

Conservation groups argued the changes were illegal and threatened to file lawsuits to get them thrown out. They also said they hoped President-elect Barack Obama would take steps after he takes office to limit the effects of the rules and start a new process to rewrite them.

Interior Secretary Dirk Kempthorne said the reason for the rule change was linked to global warming.

Kempthorne listed the polar bear as a threatened species in May but said that the Endangered Species Act could not be used to try to halt global warming. The new regulation specifies that there is no need for consultations when the harm to endangered or threatened species is a result from a global process that's too broad to measure.

Kempthorne said it's impossible to pinpoint the death of any single animal from emissions from any single polluter. In fact, emissions of heat-trapping gases disperse evenly in the atmosphere around the globe and remain there for centuries. The resulting warming and melting of polar ice have put the polar bear at risk of extinction by mid-century, scientists have said.

"We made it very clear that the Endangered Species Act was never intended to be a backdoor for climate change policy," he said. "We felt it important that we make modifications to the rules so that the door isn't allowed to be opened and it's not beneficial."

The rule changes also go further and specify that federal agencies are not required to consult with the biologists of the two agencies that enforce the act — the Fish and Wildlife Service and the National Marine Fisheries Services — if they think a project such as a timber sale or construction of a power plant won't harm or kill a threatened or endangered species. The changes do not rule out voluntary consultations.

The Interior Department on Thursday also finalized a rule implementing another section of the Endangered Species Act to clarify that it will not protect polar bears from oil and gas development or greenhouse gas emissions.

The Endangered Species Act makes it illegal to kill or harm an animal listed by the government as threatened or endangered. The federal government issues permits for construction and other activities but must ensure that these animals or plants and their habitat would not be jeopardized.

The Interior Department proposed the rules changes in August and offered a 30-day comment period, which it extended by another 30 days. It received nearly 235,000 comments, and about 200,000 of those were against the change, said Secretary for Fish and Wildlife and Parks Lyle Laverty. About 150,000 of those comments were form letters.

Kempthorne said some people within the Interior Department also disagreed with his proposal.

The Interior Department sent the new regulations to the Federal Register on Thursday, the last step in making them final. They will take effect before President Bush leaves office.

Laverty said agencies could still voluntarily seek the experts' advice when they weren't sure if endangered species would be harmed. But, he added, "most agencies have the skills that can help make that determination."

He also said the rule change would free up the wildlife and fisheries agencies' experts to focus on priority problems.

Jamie Rappaport Clark, who headed the Fish and Wildlife Service under the Clinton administration, said the changes put more species in jeopardy.

"It's clearly allowing the fox to guard the chicken coop," she said.

Although other agencies employ biologists, their main mission isn't conservation, said Clark, who now heads the conservation group Defenders of Wildlife. What's more, it's not always readily apparent that an action will have a harmful effect, and agencies could make unintentional mistakes, she said.

"Wildlife and marine biologists form the pillars of scientific integrity that support the Endangered Species Act," John Kostyack of the National Wildlife Federation said in a statement. "Knocking them out of the decision-making process will erode the foundation of this bedrock law and make it significantly harder to protect endangered species."

Andrew Wetzler of the Natural Resources Defense Council said the changes were illegal.

"I think we will see them in court," he said.

Dale Hall, director of the Fish and Wildlife Service, said there would be fewer consultations under the new rules.

Hall said he told Kempthorne earlier that he worried there would not be enough time for Interior staff to look carefully at the comments and evaluate them. In the end, however, he said he was satisfied and had no problem with the final regulations themselves.

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