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.