Endangered Process

Tuesday, August 19, 2008

IN MAY, the Bush administration reluctantly listed the polar bear as "threatened" under the Endangered Species Act. The facts left it with little choice: the bear's Arctic Sea ice habitat is melting because of global warming. But the administration wasn't happy, because the Endangered Species Act was never intended to be an instrument for coping with climate change. Our sympathy was limited, since President Bush spent his entire time in office resisting the adoption of laws that would have been better suited to combating greenhouse gas emissions. But we agreed that the Endangered Species Act was the wrong tool for the problem.

Now, however, in what is ostensibly an attempt to deal with this polar bear mismatch, Interior Secretary Dirk Kempthorne has proposed a rules change that would undermine the law's fundamental work. Mr. Kempthorne suggests far-reaching changes to the consultation process between the Fish and Wildlife Service or the National Marine Fisheries Service and other agencies. The changes would render the process meaningless and put all protected species at risk. Currently, an agency building a highway has to consult with the Fish and Wildlife Service to determine whether the project is "likely to adversely affect" a listed species. If a determination is made that such harm is likely, the service conducts a more rigorous review of the project and issues a detailed opinion on its effects. It is in this give-and-take between the various agencies and services that modifications are made that allow projects to go forward while minimizing the harm to animals and to trees and other plants.

Under Mr. Kempthorne's plan, agencies would be able to decide for themselves whether a project is likely to harm a species, and not just polar bears. If an agency decided to consult on the possible impact, the Fish and Wildlife Service would have 60 days (with the possibility of a 60-day extension) to issue an opinion. If it didn't meet that deadline, the other agency could end the consultation and proceed. The Fish and Wildlife Service already can't meet the deadlines established in the Endangered Species Act and is practically being run by judges and lawyers because of litigation stemming from blown deadlines. So we don't hold out much hope that Mr. Kempthorne's new deadlines would be met, either. The impact could be devastating.

The department contends that other government agencies have had years of experience with the law and know as much as the Fish and Wildlife Service and the National Marine Fisheries Service about how to protect listed species. This is doubtful. The services are there for a reason -- to safeguard threatened and endangered species and to act as a check against the ambitions of agencies that want to complete projects. The rigor that the current consultation process fosters would be lost.

A 30-day comment period on the new rules has begun. So, here's our comment: Reissue the proposed regulations with a specific, targeted policy on how greenhouse gas emissions should be taken into account on federal projects under the Endangered Species Act. Gutting the consultation process, with all the unintended consequences of such an action, could be avoided.

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