Today, Bush issued new endangered species rules (pdf file) that nix the input of federal scientists and ban the law from being used to fight global warming impacts that are killing wildlife. The changes become effective in around 30 days, but could take a long time for President Obama to reverse if Congress does not use the Congressional Review Act to kill these rules with one vote. Several environmental groups have already filed a lawsuit just hours after announcement of the final rules.
Bushie's new rules will hasten the extinction of many species by redefining when and how protection is provided to endangered and threatened species covered by our Endangered Species Act. Bush is changing the law by rules because he failed to obtain these changes by legislation. Bush is using administrative rule changes even though one court rejected a similar rules maneuver by Bush.
Redefining Harm To Wildlife
Under existing law, federal agencies must consult with wildlife scientists, as they have done for 35 years, if the project "may affect" a listed species or critical habitat. Thus, when federal agencies carry out, fund or issue permits for a project (e.g., construction of new highway, mining, logging, real estate development, filling wetlands etc), a consultation was required with government scientists in the US Fish and Wildlife Service or the National Marine Fisheries Service if the project may have any affect on listed species or critical habitat. This provided some checks and balances which are important as the federal agencies often have a vested interest in pursuing their projects. Under Bush's law, federal agencies can unilaterally decide whether their project will harm endangered species without any independent, scientific review.
The reason why this rule change is so devastating is that informal consultations are, according to a federal handbook, "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.
The informal consultation process identifies what protected species or critical habitats exist in the area covered by the proposed project, determines what effects the proposed project may have on species or habitat, and evaluates what mitigation measures could be added to reduce or eliminate harmful impacts to species or habitat.
Over 90% of projects are concluded at this early stage of informal consultation. Often the project is allowed to proceed because the federal agency has agreed to implement modifications to the proposed project in response to concerns expressed by the government scientists during this informal consultation process. 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. But, that's not good enough for Bushie and his corporate buddies.
Under the new Bushie rules, this critical function to protecting species is essentially eliminated. The federal agencies proposing or authorizing projects may unilaterally decide whether a project has an adverse effect on listed species. This rule eliminates the current role of government wildlife experts to review projects and provide scientific analysis and judgment about what is needed to protect listed species and protected habitats unless some federal agency decides to request informal consultation.
Ending Protection from Global Warming Impacts
Bush's new rule also nixes protections for wildlife for harms that are caused by global warming impacts because climate change is a "global process that's too broad to measure." In order to reach this result, Bush frames the issue as one of causation.
Kempthorne said it's impossible to pinpoint the death of any single animal from emissions from any single polluter. In fact, emissions of heat-trapping gases disperse evenly in the atmosphere around the globe and remain there for centuries. The resulting warming and melting of polar ice have put the polar bear at risk of extinction by mid-century, scientists have said.
Thus, if a federal agency provides funding for a new highway, the impact of tailpipe emissions on local air pollution may be an effect of the action, but the GHG emissions contribution to global warming and impacts on listed species will not be part of the ESA process.
Oh, and Bush finalized another rule today to clarify that the Endangered Species Act, which finally resulted in the listing a few months ago of the polar bear as a threatened species due to global warming impacts, "will not protect polar bears from oil and gas development or greenhouse gas emissions." Indeed, oil and gas exploration may continue in the polar bear's habitat.
The irony that seems to escape Bushie Team is that Kempthorne says that the Endangered Species law simply can not be "a backdoor for climate change policy."
Yet, Bush is nixing Endangered Species law by a back-door administrative law because similar attempts to obtain legislation from Congress failed. 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.