Laramie — On May 9, 2008, White House Chief of Staff Joshua Bolten issued a memo exhorting all executive branch agencies to “resist the historical tendency of administrations to accelerate regulatory activity in their final months.” Agencies, he wrote, should “avoid issuing regulations that are unnecessary. Except in extraordinary circumstances, regulations to be finalized in this Administration should be proposed no later than June 1, 2008.”

Nevertheless, on August 15 the Departments of Commerce and Interior proposed new regulations that would weaken safeguards required by section 7 of the Endangered Species Act (ESA), which have been in place for more than 20 years.
The proposed rules afforded the public only 30 days to comment, the minimum allowable.

The departments justified the short comment period by claiming a “need for timely action.” (73 Federal Register 47,868) Yet they admit that “there have been no comprehensive amendments to the Act since 1988” and “no comprehensive revisions to the implementing section 7 regulations since 1986.” They also claim the proposed revisions have a “narrow scope” even though the new rules would affect decisions made by every federal agency.

Early reactions to the proposed rule changes vary widely. The U.S. Chamber of Commerce commended them, while National Wildlife Federation official John Kostyack called them a “sneaky attack.”

How would the proposed rules change existing law, and why do it now?

Section 7 Consultation

Section 7 of the Endangered Species Act currently requires that, “Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency … is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [any designated critical] habitat …”

16 U.S.C. § 1536(a)(2). (“Secretary” refers to the secretaries of Interior and Commerce, who are responsible for terrestrial and marine species, respectively. Beginning in the early 1970s the secretaries delegated most of their duties under the act to the US Fish and Wildlife Service and the National Marine Fisheries Service.)

Under current policy, if an agency concludes that its action would have no effect on any listed species or critical habitat, it need not consult with the Fish and Wildlife Service (FWS). (The act says nothing about a “no effect” decision or who may make it.) But if the agency determines only that its action is not likely to have adverse effects, it must consult with the FWS. The proposed rules would allow agencies to make decisions in the not likely to category on their own.

Current consultation rules describe a role for experts: The Wildlife Service evaluates the current status of listed species and their critical habitat, evaluates the effects of the proposed action and all cumulative effects, formulates its “biological opinion” as to whether those effects are likely to jeopardize any species’ continued existence or adversely modify its critical habitat, suggests “reasonable and prudent alternatives” to avoid those effects, and recommends other measures to reduce or eliminate impacts that the proposed action “may have.”

Congress afforded the secretaries considerable discretion in implementing the Endangered Species Act, including consultation. But the U.S. Supreme Court has declared it “beyond doubt that Congress intended endangered species to be afforded the highest of priorities.” (Tennessee Valley Authority v. Hill, 1978)

The importance of consultation is clear in the legislative history of 1978 amendments to section 7. As explained by the House Merchant Marine and Fisheries Committee: “If the Federal action agency or the Secretary [Wildlife Service] determines that a proposed action may affect a listed species or its habitat, immediate consultation shall be undertaken. The consultation … will result in a written biological opinion …” (H. Rept. No. 95-1625, Sept. 25, 1978)

The Senate Environment and Public Works Committee emphasized that “full and good faith consultation” could resolve most conflicts between federal actions and the goals of the law. (S. Rept. No. 95-874, May 15, 1978) In the amendments ultimately adopted, both houses accepted the “basic premise” that “the integrity of the [section 7] consultation process be preserved.” (Conf. Rept., S. 2899, Oct. 15, 1978)

Proposed Rules

Now the secretaries propose allowing agencies to determine the effects on listed species of their proposed actions, without consulting with the Wildlife Service or the Marine Fisheries Service and obtaining either their concurrence or a biological opinion.

Specifically, agencies would not be required to consult if they determine that “the direct and indirect effects of that action are not anticipated to result in take” (killing or harming any individuals of a listed species), and if they further determine either that:

• the action would be “an insignificant contributor to any effects on a listed species or critical habitat”; or
• the effects on species or habitat
o “are not capable of being meaningfully identified or detected in a manner that permits evaluation,”
o are “wholly beneficial,” or
o “are such that the potential risk of jeopardy to the listed species or adverse modification or destruction of the critical habitat is remote.”
(50 C.F.R. § 402.03(b)

“Effects” are defined as:
“the direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline … Indirect effects are those for which the proposed action is an essential cause, and that are later in time, but still are reasonably certain to occur … A conclusion that an effect is reasonably certain to occur must be based on clear and substantial information …

To be considered, an effect must be one that “would not occur ‘but for’ the action under consultation, and the action must indispensable to the effect.” Any effect must be “reasonably certain to occur” within the particular “action area.”

The secretaries assert that the rules would apply in “some very specific narrow situations,” but we are left to wonder what those might be. Wildlife Service director Dale Hall added that the “Purpose of these changes is to reduce ambiguity (and) improve consistency…” (http://www.doi.gov.news/08_news_releases/080811a.html)

But how can agencies distinguish between an “insignificant contributor to an effect” and an effect that cannot be “meaningfully identified or detected”? Or between either of those effects and one that gives rise only to a “remote” potential risk to the species or critical habitat?

This biological hair-splitting seems designed to evade the purpose of the Act, namely, to conserve species and the ecosystems on which they depend. 16 U.S.C. § 1531(b). Letting agencies make these close calls also defeats the requirement that decisions be based on “the best scientific and commercial data available” (16 U.S.C. § 1536(a)), since in many cases the best data are likely known only to the Wildlife Service.

Moreover, requiring “clear and substantial information” (whatever that is) to support a conclusion that “an effect is reasonably certain to occur” — and allowing non-experts to make these calls — would significantly undermine the protection of species.

In the preamble to the proposed rules, the secretaries offer two reasons for the changes. First, they point to the experience that all federal agencies have gained in implementing the Act, and to the guidance provided by court decisions and the Government Accountability Office (GAO). Then they add: “We also propose these regulatory changes in response to new challenges we face with regard to global warming and climate change.” (73 Federal Register 47,868)

Climate change poses drastic consequences for some listed species, like pikas and polar bears, and it surely satisfies the Bolten memo’s demand for “extraordinary circumstances” to justify new rules at this late date. But the threat to species is not the “challenge” to which the Secretaries refer.

Interior secretary Dirk Kempthorne explains: “When we announced our decision to list the polar bear as threatened under the Endangered Species Act I said that I would take action to make sure that we implement the act more efficiently and avoid misusing it to regulate global climate change. To that end, today I’m announcing a narrow proposal that will provide clarity and certainty to the consultation process…”

(http://www.doi.gov/secretary/speeches/080813_speech.html )

Kempthorne calls the proposed rules “common sense modification,” which should make consultation “less time-consuming and a more effective use of our resources.”
( http:www.doi.gov/news/08_news_releases/080811A.html )

There can be little doubt about the motives behind this rule change: Consultation slows down development and makes projects more costly. The proposed rules would remove some of the speed bumps.

The proposed rule changes are the latest salvo in the Bush Administration’s campaign against endangered species. Under George W. Bush, only 59 species have been added to the ESA list, fewer than under any other president since the Act was passed. In contrast, former President George H.W. Bush listed 231 species during his single term in office, and President Bill Clinton listed 521 species over eight years.

This administration has lowered protections for some species and removed others from the list entirely, in spite of continuing threats. It has designated critical habitat only when forced to do so by lawsuits, even though the Endangered Species Act requires such designations. 16 U.S.C. § 1533(a)(3). Bush has refused to list species that have been extirpated or greatly reduced in the U.S., so long as they persist in Mexico or Canada, even though Congress defined the threat status in terms of whether a species is threatened or endangered “throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6), (20). Bush’s appointees have leaked internal documents to development interests and interfered with the work of career scientists.

The Grizzly Bear. Re-districted out of endangered status?

The Bush Administration devised a novel strategy for removing protection from grizzly bears and wolves. In the 1970s each species was listed as threatened or endangered throughout the lower 48 states. But in 2007 and 2008 the Wildlife Service designated “distinct population segments” — of grizzlies in Yellowstone and wolves in the northern Rocky Mountains — and simultaneously declared each population “recovered.” The agency did so without revisiting its prior decision that the species were vulnerable throughout the U.S., and despite the fact that neither animal’s status has improved significantly in other areas.

Now, the proposed rules seem to invite agencies to ignore how their proposed actions could add to the existing stresses of climate change on listed species and their habitat.

A month before these changes were proposed, the Environmental Protection Agency announced that the Bush Administration would not propose rules to regulate greenhouse gas emissions. According to the House Select Committee on Energy Independence and Global Warming, the Administration “opt(ed) to do nothing and leave it to the next president to respond to the serious environmental threat of global warming.” The Committee further concluded that the decision was made at “the oil industry’s bidding” and “at the very highest level within the White House.” (“Select Committee Investigation: Oil Industry Behind White House Switch on Global Warming,” July 18, 2008, at http://globalwarming.house.gov/mediacenter/pressreleases_2008?id=0022#main_content.)

Kempthorne and Wildlife Service Director Dale Hall defend the rule changes on the grounds that federal agencies have acquired considerable expertise with listed species and because agency “officials would continue to face criminal and civil penalties if their actions harm (listed species).”
http://www.doi.gov/news/08_News_Releases/08_19_08_ESADKall.pdf

These arguments suffer from two fundamental flaws.

First, other federal agencies are not experts in biology or ecology. While the Endangered Species Act imposes heavy obligations on them, protecting species is not their primary mission. They might be charged with building dams and highways, selling timber, providing irrigation water, or any number of other enterprises that can destroy habitat. Some agencies have been openly hostile to application of the ESA to their programs. It’s naïve to expect accurate biological assessments from them. For these reasons, the Secretaries were appointed to stand guard over the hen house.

The FWS itself recently expressed concern to GAO investigators that, “despite increased guidance, they (the Service) still receive many biological assessments with insufficient detail to judge a project’s effects,” and in those cases they sometimes “make repeated requests for more detailed information until they are satisfied that the assessment adequately addresses the effects of the proposed activity on the species.” (GAO, “Endangered Species: More Federal Management Attention Is Needed to Improve the Consultation Process,” GAO-04-93, March 2004). The GAO concluded that the “nature of different species’ biologies, dynamic ecosystems, and the multitude of activities performed and their various levels of effects, makes the consultation process a difficult task that is dependent on understanding specific conditions and exercising a healthy dose of best professional judgment.”

The argument “action agencies have strong incentives to make these determinations accurately” doesn’t hold water. Yes, the Act prohibits killing or harming protected animals without first consulting FWS and obtaining an “incidental take statement.” But no one knows better than the FWS that the difficulty of detecting injuries or deaths and attributing them to a particular cause severely limits the effectiveness of this prohibition.

Avoiding all harm to threatened or endangered animals and plants is not possible. But the mounting threats to species –a growing human population, increasing demands on resources, dwindling habitat, climate change — counsel a precautionary approach. Thirty years ago, the Supreme Court interpreted the Endangered Species Act to require as much: melting ice floe

Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as “institutionalized caution.”

The TVA Court also observed that the “dominant theme pervading all Congressional discussion of the proposed [ESA] was the overriding need to devote whatever effort and resources were necessary to avoid further diminution of national and worldwide wildlife resources.” (Ibid, quoting George C. Coggins; Court’s emphasis)

Now the Fish and Wildlife Service proposes to “simplify the consultation process” — a key element of that caution — to “make it less burdensome and time-consuming.” But at what cost?

Projects can be delayed, modified, even foregone, without irreparable consequences. But species cannot be replaced, nor extinction reversed.

Polar bears struggle to cope with melting sea ice, fire and cheatgrass have banished sage grouse from historic ranges, and rising temperatures leave alpine-dwelling pikas nowhere to go. If the Administration devoted as much effort to conservation as it has to catering to industry, these and other species might have a fighting chance.

Instead, time is running out for them, and the FWS proposes to speed up the clock.

Resources

The proposed rules have elicited so many reactions, including editorials, that Interior has published :
“CORRECTING THE RECORD: Myths and Realities About the Proposed ESA Regulations on Consultations.” http://www.doi.gov/issues/esa.html

2008 Federal Register, Proposed Rules.
https://www.fws.gov/policy/library/E8-18938.html