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Protections in Peril
A midnight attack on the Endangered Species Act, courtesy of the Interior Department

Saturday, December 27, 2008

THE BUSH administration had the good sense to stop trying to push through last-minute regulations that would have made it easier to build coal-fired plants and other polluting facilities near national parks. It was wise to hold off on changing "new source review" rules that govern when power plants must add pollution-reduction equipment. But it couldn't leave well enough alone when it issued regulations that essentially gut the Endangered Species Act. Because the rule will take effect before Barack Obama assumes the presidency, he's stuck with it. But relief could come by way of the courts.

This so-called midnight regulation, despite White House chief of staff Joshua B. Bolten's directive against such a move, is brought to you by the Interior Department. In May, it listed the polar bear as "threatened" under the Endangered Species Act because global warming is shrinking Arctic sea ice. The law was never intended to make up for President Bush's inaction on climate change. But Interior Secretary Dirk Kempthorne's attempt to protect the polar bear without taking on the larger task of regulating carbon emissions eviscerates the Endangered Species Act.

Section 7(a)(2) of the Endangered Species Act says that "Each Federal agency, in consultation with and with the assistance of the Secretary, shall 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 habitat. . . ." Where Mr. Kempthorne got it right is in preventing the effects of "global processes" (climate change) from triggering consultation "because of the inability to separate out the effect of a specific Federal action from a multitude of other factors that contribute through global processes." But Mr. Kempthorne went further by reinterpreting the statute to mean that agencies do not have to consult the Fish and Wildlife Service (or any other service) for actions that may affect any species, not just polar bears.

Currently, the give-and-take of the consultation process produces compromises that allow projects to go forward while minimizing the harm to protected species. But Interior's new rule eliminates that vital check on the ambitions of agencies that want to complete projects. Such a check will become increasingly important as President-elect Obama and Congress move to make infrastructure repair and revitalization (roads, high-speed rail, wind farms, etc.) an essential part of an economic stimulus plan.

A balance must be struck between that plan and protecting species and the environment. No doubt environmental groups will sue to stop the regulation. By settling out of court on terms that are favorable to the plaintiff and that match the new president's philosophy, Interior Secretary-designate Ken Salazar and the Obama administration could nullify Mr. Kempthorne's ill-advised rule much faster than by undertaking the long process of issuing new regulations.

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