New Regulation Would Lessen Influence of Fish and Wildlife Experts

The U.S. Endangered Species Act (ESA) has been at the center of some of the fiercest environmental battles in the history of the United States. It has been the law which has held up big dams, helped bring iconic species such as the bald eagle back from the brink, and been used by environmentalists battling loggers over old-growth forests in the Pacific Northwest. For these reasons the ESA is often demonised by those who prefer business as usual to biodiversity preservation.

The Bush Administration, with only a few months left in government, has just proposed a series of controversial rule changes to the ESA that would prevent the review of many new projects by biologists at the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS).

The departments of the Interior and Commerce have given two main justifications for the proposed rule changes. The first is to prevent the ESA from being used to regulate carbon dioxide (CO₂) emissions. That became a possibility after FWS listed the polar bear as a threatened species. Interior Secretary Dirk Kempthorne is reported as saying that:

...the changes were needed to ensure that the Endangered Species Act would not be used as a "back door" to regulate the gases blamed for global warming...

The draft rules would bar federal agencies from assessing the emissions from projects that contribute to global warming and its effect on species and habitats.

The second justification given by the departments of the Interior and Commerce for the proposed rule changes is to reduce the number of "informal consultations" around the ESA. The consultations have caused considerable delays on projects in the past according to a 2004 report by the U.S. Government Accountability Office.

Sen. Barbara Boxer, chairwoman of the Environment and Public Works Committee, called the proposed changes illegal.

This proposed regulation is another in a continuing stream of proposals to repeal our landmark environmental laws through the back door," she said. "If this proposed regulation had been in place, it would have undermined our ability to protect the bald eagle, the grizzly bear and the gray whale.

As the rules currently stand, when an action requiring a permit is proposed the permitting agency responsible must consider whether a listed species or its critical habitat might be affected by the proposed action. If the agency decides that a listed species or its critical habitat may be affected, then the agency must informally consult with staff at the relevant service (FWS or NMFS depending on whether it is a terrestrial or marine matter). If the agency or FWS/NMFS biologists decide that the action is likely to cause harm then a formal consultation is required. If the project is thought to be unlikely to cause harm to a listed species or its critical habitat however, then the agency may proceed with issuing whatever permits are required.

Under the proposed new rules, agencies have to consult the services only if indirect or direct effects of their actions are an "essential cause" of and "significant contributor" to the likely harm. Under the new rule, if the agencies determine that their projects are not likely to harm a species, they would not need to seek an expert opinion from the services at all. If the agencies suspect harm to a species, however, they still must formally consult. Officials at the departments of Interior and Commerce argue that agencies are "fully qualified" to decide on their own whether their projects will harm a species or its habitat.

This isn't the first action by the Bush administration to weaken the ESA. An analysis by FWS and NMFS of newly introduced regulations under the National Fire Plan (similar to those proposed under the ESA) was released in January. These regulations allow the U.S. Forest Service and the Bureau of Land Management to decide whether to consult about prescribed burning and other fire-related actions. NMFS found that in 10 out of 10 cases:

• The agencies failed to describe spatial and temporal patterns of the action’s direct and indirect environmental effects, including direct and indirect effects of interrelated and interdependent actions;


• The agencies failed to identify Action Areas clearly;


• The agencies failed to identify all threatened and endangered species and any designated critical habitat that may be exposed to the proposed action;


• The agencies failed to compare the distribution of potential effects with the threatened and endangered species and designated critical habitat;


• The agencies failed to identify to establish, using the best scientific and commercial data available, that (a) exposure is improbable or (b) if exposure is likely, responses are insignificant, discountable, or wholly beneficial; and
• The agencies failed to base the determination on best available scientific and commercial information

FWS found other flaws in 25 out of 43 cases. It seems unlikely that removing the oversight provided by FWS and NMFS biologists from more projects that are likely to affect ESA listed species will do anything to improve these statistics. It seems immaterial whether agencies are "fully qualified" to decide on their own whether their projects will harm a species or its habitat if they have no will to protect those species and habitats.

The proposed rule is open for public comment until 15 September. From the FWS:

Submit your comments or materials concerning this proposed rule in one of the following ways:

(1) Through the Federal eRulemaking Portal at www.regulations.gov. Follow the instructions on the website for submitting comments.

(2) By U.S. mail or hand-delivery to Public Comment Processing, Attention: 1018-AT50, Division of Policy and Directives Management, US Fish and Wildlife Service, 4401 North Fairfax Drive, Suite 222, Arlington, VA 22203. We will not accept e-mail or faxes.

We will post all comments on www.regulations.gov. This generally means that we will post any personal information you provide us."

The US EPA is Dysfunctional

The U.S. Environmental Protection Agency (EPA) is an agency of the federal government of the United States charged with protecting human health and with safeguarding the natural environment: air, water, and land. The EPA was proposed by President Richard Nixon and began operation on December 2, 1970.

Over the first 30 years of its existence the EPA played an important role and acted decisively to live up to its mandate of protecting human health and safeguarding the natural environment. Today however the EPA is an embattled organization facing criticism from environmental groups that it is powerless to safeguard the environment and is neglecting its responsibilities to protect human health. Among the recent issues that have reflected negatively on the EPA:

1. Environmental Protection Agency chief Stephen Johnson declined to explain before Congress how a conclusion he made last year that global warming put the public in danger could lead to a decision not to regulate greenhouse gases.
2. A Federal judge found that the EPA and the state of Florida had dismally failed in their duty to protect the Everglades from harmful phosphorus washing off sugar farms, vegetable fields and suburban streets. In his ruling the judge took EPA to task for repeatedly violating the very Clean Water Act that it is supposed to administer.
3. A Federal Court in the Northern District of California (Northwest Environmental Advocates v. EPA) found that EPA’s regulation exempting ballast water discharges from the Clean Water Act was “plainly contrary to the congressional intent,” and ordered the Agency to develop new regulations.
4. Voluntary pollution-reduction programs touted by the Bush administration and supported by EPA as part of the solution to global warming had "limited potential" to reduce greenhouse gases, according to the Environmental Protection Agency's Inspector General's Office.
5. Senate Environment and Public Works Committee Chairman Barbara Boxer and committee members Sheldon Whitehouse, Amy Klobuchar, and Frank Lautenberg called for the resignation of Environmental Protection Agency Administrator Stephen L. Johnson, charging that Johnson had given misleading testimony before Congress; refused to cooperate with Congressional oversight; and based agency decision making on political considerations rather than scientific evidence or the rule of law.
6. Five states threatened to sue the Environmental Protection Agency if it did not act soon to reduce pollution from ships, aircraft and off-road vehicles.
7. Hundreds of Environmental Protection Agency scientists complained they had been victims of political interference and pressure from superiors to skew their findings. In a survey, the EPA scientists described an agency suffering from low morale as senior managers and the White House Office of Management and Budget frequently second-guess scientific findings and change work conducted by EPA's scientists.

Scientists at EPA have repeatedly singled out the Office of Management and Budget (OMB) at the White House for interfering with their work, accusing OMB officials of inserting themselves into decision-making at early stages in a way that shaped the outcome of their inquiries. They also alleged that the OMB delayed rules not to its liking. EPA actions "are held hostage" until changes are made, a scientist from the EPA's Office of Air and Radiation wrote

Even for those who have read Chris Mooney's The Republican War on Science the number of accusations of malpractice and/or incompetence against the EPA in the last few months is staggering. The EPA is clearly a dysfunctional agency no longer able to live up to its mandate. It's time for that to change. Hopefully the political will for that to happen will return after the United States presidential election in November.

Exxon-Mobil and Climate Change Deniers

From David McKnight in The Age this morning:

In May this year, the multibillion-dollar oil giant Exxon-Mobil ... announced that it would cease funding nine groups that had fuelled a global campaign to deny climate change.
Exxon's decision comes after a shareholder revolt by members of the Rockefeller family and big superannuation funds to get the oil giant to take climate change more seriously. Exxon (once Standard Oil) was founded by the legendary John D. Rockefeller. Last year, the chairman of the US House of Representatives oversight committee on science and technology, Brad Miller, said Exxon's support for sceptics "appears to be an effort to distort public discussion".

The article mentions several climate change denialist groups that have been funded by Exxon-Mobil in recent times, including the Heartland Institute. The Heartland Institute made headlines recently with its release of a paper challenging global warming theory, citing 500 climate scientists as "co-authors". Many of these so-called "co-authors were horrified to find their names attached to this work and claimed that it grossly misrepresented their findings. Some of the scientists proved to be dead or imaginary.

Five New Zealander scientists released a statement saying that they "strongly object to the implication that they support Heartland’s position." One of these scientists was Dr Jim Salinger of the National Institute of Water and Atmospheric research (NIWA):

"Global warming is real," he said, and demanded reference to his work be removed. The institute refused. The Heartland Institute received almost $800,000 from Exxon, according to Greenpeace's research based on Exxon's corporate giving disclosures.

David McKnight - associate professor at the University of New South Wales - also says in his article:

In Australia, the main group that tries to undermine the science of global warming is the Lavoisier Group. It maintains a website with links to the Competitive Enterprise Institute (over $2 million from Exxon), Science and Environmental Policy Project ($20,000) and the Centre for the Study of Carbon Dioxide (at least $100,000).

The Lavoisier Group webpage contains (amongst other gems) a link to a paper which recycles many of the same old denialist talking points. All of those raised are refuted here on the New Scientist website. If I were Exxon-Mobil I would have wanted to get slightly more for my $2 million than that recycled nonsense.

Perhaps they did. There has certainly been a marked increase in denialist letters to the editor and editorials in Australian newspapers in the last few weeks. This follows a poll indicating that 60% of Australian voters support the introduction of a cabon emissions trading scheme "regardless of what other countries do", while 23% support a scheme "if other countries act".

When asked if climate change was caused by human activity, 96 per cent said it was entirely or partly caused by human activity; 84 per cent believed climate change was currently occurring.

UPDATE: Exxon-Mobil yesterday reported the largest quarterly operating profit in US corporate history.

Massachusetts Passes Oceans Act

Provincetown, Cape Cod, Massachusetts

Massachusetts’ 2300 kilometers of coastline and its 650 000 hectares of subtidal lands are an integral part of the Gulf of Maine — one of the most biologically productive marine ecosystems in the North Atlantic Ocean. It is delineated by Cape Cod at the eastern tip of Massachusetts in the southwest and Cape Sable at the southern tip of Nova Scotia in the northeast. It includes the entire coastlines of the U.S. states of New Hampshire and Maine, as well as Massachusetts north of Cape Cod, and the southern and western coastlines of the Canadian provinces of New Brunswick and Nova Scotia respectively.

For centuries, the Atlantic waters of the Gulf of Maine have been used for fishing, recreation and navigation. In recent years, proposals for other uses, from gas pipelines and liquefied natural gas facilities to desalinization projects and wind and wave energy projects have dramatically increased. These new proposals raise concerns about how to manage marine resources amidst diverse proposals and intensified development pressures. Historically, decisions about how to manage ocean resources have been handled on a resource by resource, case by case, reactive basis. However, this approach is inadequate to face the complexity of the proposals and challenges facing Atlantic waters in the 21st century. The Massachusetts Oceans Act, a comprehensive and holistic approach to ocean management and resource protection, will coordinate and monitor all ocean-related activity. The Oceans Act of 2008, signed into law by Massachusetts Governor Deval Patrick on May 28, 2008, is the first of its kind in the United States.

The culmination of the Oceans Act will be the Ocean Management Plan. The Plan will regulate many uses of the Massachusetts coastal waters—everything from wind farms to whale watching to cruise ships to the cod fishery. Specifically, it will:

• Give the Secretary of the Executive Office of Environmental Affairs the oversight, coordination and planning authority over ocean resources.


• Decisions would be based on an ocean management plan created by a broad-based, 19-member ocean management advisory board comprised of state agency representative, state legislators, a municipal official and environmental, fishing and marine industry stakeholders.


• The ocean resources management plan will be required to be based on the best available scientific understanding of marine and ocean resources. A 9-member ocean science advisory council will assist the Secretary in gathering and analyzing the best available science.
  
  
• All programs and permits for activities in ocean waters will be required to conform to the ocean management plan.


• Notably, commercial fishing will still be regulated by the Division of Marine Fisheries and will not be under the direct control of the Ocean Management Plan.

The MPA Inquiry in Bruny, Tasmania - part 1

A Case Study In MPA Planning and Implementation Difficulties

A key part of the Australian Government's marine conservation strategy, is developing a representative system of marine protected areas (MPAs) in Commonwealth waters by 2012. This will contribute to the National Representative System of Marine Protected Areas (NRSMPA), which is described in more detail in the Guidelines for Establishing the National Representative System of Marine Protected Areas.

The stated goal of the NRSMPA is to:

establish and manage a comprehensive, adequate and representative system of MPAs that will contribute to the long-term ecological viability of marine and estuarine systems, maintain ecological processes and systems and protect Australia's biological diversity at all levels.

Bioregions have been defined as 'assemblages of flora, fauna and the supporting geophysical environment contained within distinct but dynamic spatial boundaries'. The identification of these boundaries and comprehension of the functioning of bioregions is essential for enlightened ecological management. Distributional boundaries are the result of responses of organisms to boundaries between changing environmental factors and studies of species distributions can therefore help us better understand the dynamics of marine regions.

On 6 June 2005, the Tasmanian Minister for Environment and Planning issued a directive to the Resource Planning and Development Commission (RPDC) to conduct an inquiry and make recommendations on the establishment of Marine Protected Areas (MPAs) in the Bruny Bioregion, in south-eastern Tasmania.

Of the nine Tasmanian bioregions the Bruny Bioregion stands out as being the most complex and diverse in terms of ecosystems and human activities and uses. It is notable amongst the Australian bioregions for its very high number of species with very limited distributions. Alongside this ecological significance is the economic significance of the Bruny Bioregion to Tasmania, particularly for commercial fishing, marine farming, tourism and recreation, urban and industrial development and shipping.

At the beginning of the Bruny MPA inquiry the RPDC stated that:

A number of key characteristics will define MPAs established in Tasmania, including:

• being established for the conservation of biodiversity;
• able to be classified into one or more of the World Conservation Union (IUCN) protected area management categories;
• having secure status that can only be revoked by a Parliamentary process; and
• contributes to the representativeness, comprehensiveness or adequacy (CAR) of the Tasmanian MPA system.

The scope of the inquiry outlined in the terms of reference was for the Commission to:

• use the identification and selection criteria contained in the Tasmanian Marine Protected Areas Strategy to assess and select those areas of public land in the Bruny Bioregion that are suitable for declaration as Marine Protected Areas; and
• identify potential boundaries and management arrangements for those areas suitable for declaration as Marine Protected Areas.

The RPDC produced an Background Report in June 2006. This Background Report was placed on exhibition and public comment invited. The Commission received 42 submissions on the Background Report. Key issues raised in submissions were:

• threats and pressures to coastal ecosystems, including overfishing and climate change;
  
• existing status of the marine environment;
  
• nature and location of important and unique aspects of marine habitats and communities;
  
• the need for MPAs;
  
• inadequacies of existing Marine Nature Reserves;
  
• potential for economic impacts on commercial fisheries;
  
• areas of high recreational interest and usage;
  
• management and resourcing arrangements for MPAs; and
  
• nominations of potential areas and natural features that would benefit from protection within an MPA.

As a result of the response to the Background Report the Commission considered that further public input was required before a Draft Recommendations Report could be prepared. Accordingly, an Interim Report was published in March 2007 and placed on public exhibition. The Interim Report focused on the identification stage of the process, i.e. the presentation of areas that may be suitable for inclusion within MPAs based on their meeting identification criteria in the Strategy. The Interim Report also identified threats to the marine environment in the Bruny Bioregion, and assessed the comprehensiveness and representativeness of habitats in existing MPAs. Interested persons and groups were invited to make written submissions on this phase of the process.

The Commission received 24 submissions on the Interim Report. Submissions broadly canvassed issues similar to those raised on the Background Report. Additionally, submissions at this stage:

• provided further information on values of identified areas;
  
• commented on the Commission’s analysis of the identification criteria; and
  
• flagged areas they viewed as best candidates for MPAs.

The Commission then prepared a Draft Recommendations Report. The Draft Recommendations Report presented the priorities applied by the Commission to reduce in number the 45 identified areas in the Interim Report to 21 priority identified areas, from which the draft MPAs were selected. The main content of the Draft Recommendations Report was the presentation of areas that were considered suitable for declaration as marine protected areas, following application of the identification and selection criteria of the Strategy. These areas were identified using information from the Background Report and Interim Report, written submissions and submissions made at the Hearing held in September and November 2006. In August 2007, the Draft Recommendations Report was placed on public exhibition and public comment invited. The Commission received 191 submissions on the Draft Recommendations Report.

Key issues raised in submissions included:

• Many MPA-specific issues, concerns and additional information: largely addressing social and economic impacts, and including safety and compensation issues;
  
• Views on a broad range of considerations for management of MPAs (e.g. levels of protection, boundaries, enforcement, resourcing), and allowable activities within MPAs;
  
• Views on threatening processes to the marine environment, with fishing getting considerable attention;
  
• Uncertainty as to why MPAs are needed and what benefits they can provide;
  
• Expressions of endorsement or non-endorsement across the recommendations broadly and also MPA-specific;
  
• Concerns about the process of the inquiry and the level of consultation; and
  
• Concerns about whether the Commission had adequately addressed the selection criteria in the Strategy.

To be continued...