News: Environmentalists say a little-noted rule change could weaken the United States' strongest environmental law.
November 8, 2005
Mother Jones Magazine
In September the House of Representatives approved a bill that would make the Endangered Species Act (ESA) friendlier to industry and private-property owners at the expense of threatened and endangered species. The bill, championed by Rep. Richard Pombo (R-CA), a real estate developer and rancher who serves as the chair of the House Resources Committee, would change a key provision of the act, Section 7, which requires that government agencies seek the opinion of wildlife experts before launching projects that might harm endangered species.
Environmentalists have long seen Section 7 as an important preservation tool, and fear that agencies, left to their own devices, will tend to underplay the likely harm to species. "It becomes like the fox watching the chicken house," says Jaime Rappaport Clark, a former Director of the National Fish and Wildlife Service.
For now, Pombo's bill is stalled in the Senate. But his isn't the only Republican challenge to Section 7. In June of 2003, long before the bill's drafting, the Bush administration's Interior Department had already issued new regulations under the ESA that allowed much the same thing. In certain cases, important species-protection decisions have been moved from the government's long-time conservation experts to the very agencies that the ESA was meant to regulate, such as the Environmental Protection Agency and the U.S. Forest Service. Pombo's bill, if passed into law, would legislatively enshrine the Interior Department's new rules. But if courts uphold those rules, now under legal challenge, the effect could essentially be the same.
While environmental lawyer Eric Glitzenstein calls the new rules "the biggest regulatory change" to the ESA carried out under the Bush administration, he and other environmental advocates point to many other actions and appointments whose goal at heart, they say, is to gut the Act. According to Clark, under Bush the expert agencies have annually listed, on average, less than 10 new species as endangered or threatened; under Clinton the yearly average was 65, under the first President Bush it was 58. And if past performance is any indication, that number is unlikely to grow under Dale Hall, Bush's new pick to lead Fish and Wildlife, who was confirmed by the Senate last month. When serving as the Service's Southwest Regional Director, Hall "never acted to protect a species unless under court order," according to a press release from Forest Guardians, a New Mexico based preservation group.
Here's how things worked prior to the rule changes: Before any federal agency, such as Forest Service or the Army Corps of Engineers, could authorize, for instance, logging or dam-building, it would have to determine whether the action was likely to kill or harm any species listed as endangered or threatened. If the acting agency thought that harm was possible, it then had to consult with the National Fish and Wildlife Service or the National Marine Fisheries Service—known as the "expert agencies"—to determine how real of a threat the project represented to the species, and if the action could be modified to minimize or eliminate harm. This process would also be required if one of the expert agencies disagreed with the acting agency's original assessment. Any project that, even after consultation, the expert agencies find short of the ESA's protection standards is essentially stymied, unless overruled by a court or allowed by what is informally known as "the God Squad"—a group of at least six senior governmental officials, including two cabinet secretaries, that has met only three times in the history of the act.
But that process changed with the Bush administration's new regulations. It doesn't take the word of the God Squad to allow a project to go forward without expert agency approval. That's because, in certain cases, the revisions allow agencies to decide for themselves whether or not their actions would harm endangered species, avoiding any potential for formal consultation. The rules were drafted in part by the office of Craig Manson, Bush's Assistant Secretary of the Interior for Fish and Wildlife and Parks. (In November 2003, Manson told a reporter that he did not "think we know enough about how the world works to say" that species extinction "in and of itself is inherently bad".) The government calls the result of the new procedure as an "alternative consultation agreement" (ACA); but environmental lawyers wryly—and perhaps more accurately—characterize the new process as "self-consultation."
It's the sort of change that excites the industry-funded National Endangered Species Act Reform Coalition, which represents farmers, developers, and electric utilities, and has been a major supporter of Pombo's bill. Industry has long been frustrated by the ESA; a decision to protect a single species can lead to the prohibition or curtailment of any activity that might threaten that species. Environmental litigants have found the ESA's broad ability to stop construction, controlled fires, resource extraction, or pesticide—as long as such activities can be shown to harm a listed species—to be among the most powerful weapons in their legal arsenal.
On March 3, 2004, the U.S. Forest Service and the Bureau of Land Management entered into an "alternative consultation agreement" allowing these major public landholders, both federal agencies, to determine for themselves—without concurrence from the expert agencies—whether or not certain anti-forest fire projects would leave listed species unharmed. The new procedures were billed as a key wildfire prevention measure in President Bush's "Healthy Forests Initiative," touted as necessary "to enhance the efficiency and effectiveness" with which National Fire Plan projects were approved.
But the vast majority of Fish and Wildlife Service's Regional Directors, seven high-ranking civil servants charged with overseeing many key aspects of the ESA, disagreed that there was any legitimate problem with swift approvals for anti-wildfire projects. Before the regulations were made official, Manson's Washington office, who drafted the changes, asked for the Director's comments. Of the six who responded, all had serious reservations about the proposal that remain unaddressed in the final version. The Director of the fire-prone Mountain-Prairie region wrote that his office was "unaware of cases in which our current consultation procedures have slowed activity implementation." Another noted that "a concurrence process [with the expert agencies] does not require a long time to prepare. Generally these are done in less than day."
Mark Bosch, who coordinates the Threatened, Endangered & Sensitive Species Program at the Forest Service, agrees that getting concurrences from expert agencies doesn’t slow down the process at his agency. “We usually don't have to wait,” says Bosch. So far, the Forest Service has only used the ACA—the "self-consultation" option—about 50 times, when Bosch had expected hundreds.
So what purpose, then, do the ACAs serve? Glitzenstein, who is litigating against the Fire Plan ACAs on behalf of Defenders of Wildlife, thinks that Manson had another motive. "The political higher-ups wanted to do this to get a foot in the door," he says, and used the excuse of forest fire prevention to establish a beachhead. He's worried that the Interior Department may eventually act on its own allow any federal agency to act without expert agency consultation on species decisions—the same change that Pombo's bill proposes.
The Regional Directors' internal memos, which commented on draft versions of the new regulations, reflect a similar concern about future alternative consultation agreements. Directors feared that the agreements would pave the way for agencies like the Army Corps of Engineers or the Federal Energy Regulatory Commission—both of whom "have existing fundamental disagreements with the Service about ESA implementation"—to obtain their own ACAs. They worried that the Service's role in the process—which has always been understood as that of an impartial arbiter and enforcer—was being given away wholesale to agencies that, as Clark puts it, have "competing missions." As one director wrote, "We cannot discount the overriding conflicts" that the other agencies' scientists who the rule now empowers to make key protection decisions "face from internal pressures to meet quotas for timber salvage harvest, prescribed fire, etc."
Anne Lindsay, the Deputy Director of the Office of Pesticide Programs at the Environmental Protection Agency (EPA), acknowledges that her office has to be responsible to both species and industry and farm groups who make, sell, and use pesticides. In 2002, a federal judge ruled that the Endangered Species Act required the EPA to consult with the expert agencies before approving pesticides that might harm species on the endangered list. But five months after the unprecedented Fire Plan rules, the second (and to date, only other) ACA was drawn up between the EPA and the expert agencies. Now, armed with its new ACA, the EPA is again empowered to make making its own decisions about possible effects on species. Williams describes the new pesticide approval process as a “partnership and a collaboration relationship, more than a policing relationship.” It's that new system that worries lawyer Patti Goldman, who has sued the EPA on behalf of EarthJustice, a non-profit public interest law firm. In the past, she says the EPA has certified certain pesticides as safe, despite Fish and Wildlife Service documents indicating that they could neurologically impair protected salmon and steelhead fish, hampering their ability to swim, find prey, or avoid predators.
So far the Fish and Wildlife Service won't comment on whether or not it thinks the other agencies are making their decisions properly. They are withholding judgment until a mandatory review of the Forest Service and Bureau of Land Management's decisions under the new ACAs is finished. (The review is more than seven months overdue, and is not expected until the end of the year.) Until then, it is hard to tell if the ACAs have been used to approve projects that would not otherwise pass muster under the Endangered Species Act.
But according to Glitzenstein's lawsuit, the Forest Service has already approved, without expert agency oversight, projects that take place where listed species live, including caribou, grizzly bears, the Canadian lynx, and the Mexican spotted owl. According to Bosch "far and away the most common" type of action authorized by the Forest Service under the ACAs has been "mechanical treatment," a term that the Forest Service defines as thinning, clear cutting or removing matter that could fuel forest fires. Environmental groups have been worried the term could be used to authorize logging unrelated to fire prevention.
Clark thinks it unlikely that the portion of Pombo's bill modifying Section 7 will clear the Senate, and optimistically notes that in past ESA battles, Congress has regarded the section as "sacrosanct." But at the same time, she admits to being surprised at how "crummy" of a bill Pombo got through the House—his success to date indicates that almost anything could happen. Meanwhile, Manson's changes to Section 7 are only one court decision away from being upheld. Even if Pombo's bill dies, environmentalists are sure the drive to change the Endangered Species Act will live on.