Bush Knows New Endangered Species Rule Illegal

(noon – promoted by ek hornbeck)

Bush is killing Endangered Species law (ESA) by a proposed administrative rule because he does not want ESA to be “used as a back door” to regulate GHG.  Thus, Bush is using a back-door administrative process to change the law because similar attempts to obtain legislation from Congress failed. Bush’s new rule would hasten the extinction of many species by wiping out the independent scientific review currently used to determine harmful impacts on species and replacing it with a unilateral government review devoid of scientific data.  It’s an approach of ignorance is blissful for profits. After all, it was the scientific data which compelled the conclusion for the first time that climate change impacts may trigger listing a species as threatened, which recently happened with the polar bear. Moreover, Bush knows his proposed rule is illegal because a court rejected a similar rule a few years ago.

No More Consultation

Bush’s proposed rules would allow federal agencies to determine for themselves “whether highways, dams, mines and other construction projects might harm endangered animals and plants.” This means any project a federal agency would fund, build or authorize (e.g., federal agency approval or permits needed) would no longer have independent, scientific review.

Under existing law, mandatory and independent reviews have been conducted by government scientists for the past 35 years. Under current law, federal agencies must consult with the Fish & Wildlife Service or the National Marine Fisheries Service which must determine whether a proposed project is “likely” to jeopardize any endangered species even if no harm appears likely. This initial review enables experts to require accommodations or mitigation measures that provide protection to the threatened or endangered species and determines whether more extensive analysis is needed. A federal government handbook from 1998 concluded that consultations are “some of the most valuable and powerful tools to conserve listed species.”

To get some idea of impact, government wildlife experts currently conduct “tens of thousands of such reviews each year:”

Between 1998 and 2002, the Fish and Wildlife Service conducted 300,000 consultations. The National Marine Fisheries Service, which evaluates projects affecting marine species, conducts about 1,300 reviews each year.

Our very cowardly, corporate-profiteering Bush is using the rule process to accomplish by stealth regulation what he could not accomplish under existing law because his buddy developers and businesses have long whined that ESA environmental review delays projects and increases costs.

The ESA mandated consultations have saved many species. Oftentimes, very minor changes are made to a project to protect threatened and endangered species.  For example, if a nest is located in a tree stand at one corner of a project site, the project may still proceed, but measures must be followed to not disturb the tree stand.

The key for Bush is eliminating scientific analysis from the review process. When a similar rule was adopted in 2003, the unilateral evaluations were not legally or scientifically valid according to government scientific experts:

But internal reviews by the National Marine Fisheries Service and Fish and Wildlife Service concluded that about half the unilateral evaluations by the Forest Service and Bureau of Land Management that determined wildfire prevention projects were unlikely to harm protected species were not legally or scientifically valid.

No GHG Evaluation

Bush’s proposed rules would also forbid federal agencies from evaluating the GHG emissions from projects that contribute to global warming or the effect of GHG emissions on species and habitats.

This clause is included because last May the government determined that the polar bear is a threatened species due to climate change. Even under the Bush administration, the government was forced to list the polar bear because warming temperatures are melting the sea ice habitat which the polar bears need for survival. The government was forced to list the polar bears because the governments own scientists concluded that the data proved that climate change was a threat to the polar bears. Now, Bush wants to eliminate that scientific data from being considered.

Just yesterday it was reported that scientists witnessed the climate change impacts on polar bears today  as they observed a polar bear on land in Alaska at a time of year when polar bears should be on ice floes hunting seals.  However, due to global warming, ice has melted, leaving ice miles from shore and trapping polar bears on land far away from their usual food.

Limitation on Harmful and Delay Exemption

The proposed rule also places limitations on which “effects can be considered harmful and set[s] a 60-day deadline for wildlife experts to evaluate a project when they are asked to become involved. If no decision is made within 60 days, the project can move ahead.”  This is another key measure to greenlight projects that harm threatened or endangered species.

One very common characteristic of the ESA process today is that delay is widespread throughout the system. Sometimes delay is caused by budgetary constraints imposed on the federal agency experts, sometimes delay happens because unexpected issues arise in the review process and then the scientists need to collect more data. The upshot is that any automatic exemption from the even limited unilateral review provided by this new rule is a guarantee to kick many projects from even the unilateral review process.

Public Comments

The new rules will be formally proposed in the near future. If Bush abides by the usual regulatory rule-making process, then the federal government must publish the proposed rule in the Federal Register to enable the public to read and review the proposed rule.  The public then has 30 days to submit comments on the proposed rule, and the government must consider and provide responses to the public comments.  

Procedural Impact of Proposed Rule

The proposed rule could be accepted by the Interior Department as a final rule in only 60 days. This means a final rule could be issued before the November election. President Obama may freeze any pending regulations or reverse them, but this process could take months.  Congress could also invalidate the new Bush rule by legislation, which would take even longer.  

Challenging the Proposed Rule

Sen. Boxer 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.”

Bush knows that the new ESA proposed rule will be litigated and will likely be overturned by the courts. In 2003, Bush issued similar rules to allow agencies to approve new pesticides and projects to reduce wildfire risks without the pesky inconvenience of needing to obtain consultation from government scientists on whether threatened or endangered species or habitats may be affected by the project. The pesticide rule was rejected by the court and the wildfire prevention rule is currently being litigated.

In the pesticide case, the federal district judge concluded that “to ignore the wildlife agencies is to ignore the law.” The judge was also concerned that the pesticide rule was drafted with a “total lack” of “scientific justification” and that there were “disturbing indications” that the Bush administration “deliberately muted dissent from government scientists.”  This new Bush rule to kill ESA similarly was drafted by attorneys without any input from government scientists, who were first briefed on the new rule last week.

One of the environmental organizations which filed the pesticide rule lawsuit reacted to this new ESA-killing rule proposed by Bush:

It takes great hubris to resurrect an issue the court has already definitely struck down. This is like a zombie movie their proposal to toss the Endangered Species Act over the cliff died, but now has somehow come back to life.

Why should everyone care about Bush’s new rule? It was recently reported that primates, which share 98.5% of our genetic code, are the most threatened species on earth because 50% are facing extinction in the near future.

If these highly intelligent species are dying out, what does that mean for us, their human cousins?

My hope is that we at Daily Kos can organize a drive to submit comments when this proposed rule is posted in the federal register. I will be contacting environmental groups to see what else we can do to defeat this measure in hopes that we don’t need to wait for litigation of a final rule.  If anyone is interested in working to defeat this rule, please let me know.

LithiumCola has an excellent diary exposing the Cheney links in White House to Eviscerate Endangered Species Act.