With less than four months to go before leaving office, the Bush administration has proposed changes to the Endangered Species Act that would end mandatory review by independent federal scientists. Under the proposed Bush rule, government agencies would be given the authority to "self-consult" when seeking approval for projects that could harm rare and threatened wildlife or their habitat. This plan would erase essential checks and balances between government agencies that have worked effectively for 35 years.
A coalition of conservation and public health groups represented by Earthjustice submitted comments today opposing this rule change. Those groups include: Conservation Northwest, Endangered Species Coalition, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Sierra Club, Conservation Law Foundation, Oregon Wild, Washington Toxics Coalition, and The Mountaineers.
Statement by Earthjustice attorney Janette Brimmer:
"The vigilance of conservation, fishing, and hunting groups has held the line against the Bush administration attacks on endangered species for eight long years. This proposed rule change is obviously a Hail Mary pass to industry friends in the final days of the Bush administration and it will fail."
Summary of comment letter:
The ESA's primary purpose of protecting species and their habitat is grounded in precautionary measures and directives designed to always give the benefit of the doubt to the imperiled species. The law does this by requiring the input of the fish and wildlife experts and requiring the use of the best available science to make sure that federal government agencies don't inadvertently do something that jeopardizes endangered species.
- The new proposed rule change abandons a precautionary approach in favor of a "full steam ahead" default position on government actions that may affect species.
- The proposed rule change is designed to allow and encourage federal government agencies to make inexpert decisions -- to basically consult with themselves -- and find that their actions have "no effect" on threatened or endangered species. In the process, this self-consultation cuts the fish and wildlife scientific experts out of the decision.
- The proposed rule change will no longer require best available science from the experts because it declares that the benefit of the doubt now goes to government agencies, not species and encourages agencies to ignore situations where an animal is in trouble from many contributing factors. Now, in order for the endangered species to even get the protection of consultation with the experts, there has to be some high level of proof of actual harm to the species wholly caused by the government action in question.
- The self-consultation that is the result of this proposed rule has already been soundly rejected by a federal district court in Washington Toxics Coalition v. Secretary of Interior, 457 F.Supp.2d. 1158 (W.D. Wash. 2006).
- One of the more insidious aspects of the new proposal is the use of global warming and its complexities as an "excuse" for this much more far-reaching attack on the ESA.
- There are numerous examples (included in the comment letter) that show agencies should not self-consult, as they often lack the expertise necessary to fully understand and protect against harm to endangered species, and they are too often focused on their primary mission to the detriment of fish and wildlife.
Read the comments here.
Janette Brimmer, Earthjustice: Seattle, (206) 343-7340
Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.