by Tricia Dameron
In August, the Department of the Interior proposed self-described “narrow” changes that would revise the consultation process (Section 7) of the Endangered Species Act (ESA), as well as clarify the lack of interplay between greenhouse gas emissions and the role of the Act.
As it currently stands, the Act requires federal agencies (referred to as ‘action agencies’) to consult with the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (referred to as ‘Services’) on planned projects—such as dams, highways, mining, logging—that may affect plants and animals (or their habitat) that are listed on the endangered or threatened species list. Informal consultations are required if there is no effect or if the effect is insignificant or impossible to measure; in any case, a consultation (formal or informal) is required. The rule change will require action agencies to consult with the Services only if the project will likely harm a listed species.
Mark Howery*, a wildlife diversity biologist in Oklahoma, summed it up by saying, “Right now, the USFWS has the final authority for determining what actions constitute a significant impact to endangered species and which ones don’t. Where there is a conflict in interpretation, the burden of proof, so to speak...falls on the other federal agencies. I believe that if the proposed rule change takes place, what it will do is shift that burden of proof on to the USFWS when there is an interagency dispute.”
What do these changes actually mean? Has the Department of the Interior tried to foresee the unintentional (or perhaps intentional) consequences? After reading the proposed changes, I am left with more questions than answers. Below is my attempt to parse some issues of importance to me.
What good will result from these changes?
Ken Collins is a biologist with the USFWS and does consultation work in Oklahoma. He says the changes could reduce the consultation and litigation workload. “The FWS is often sued on decisions we make or assist in. If the Federal action agency would make the determinations, as outlined under the new regulations, future lawsuits would likely be directed at the Federal action agency who made the determination and not the FWS.”
What incentives encourage the action agencies to conduct a fair assessment?
Litigation. ESA watchdog and interest groups that initiate litigation will have to navigate the bureaucracy of multiple agencies, rather than just two.
What about agencies that do not have in-house biologists?
“[M]ost agencies other than Forest Service, [Army] Corps [of Engineers], and [Bureau of Land Management] typically have very few biological staff in house. They would either need to hire additional staff or allow consultants to gather information and discuss the possible effects. The final determination would still be made by the federal action agency in those cases,” says Collins. The proposed rule assumes federal agencies have acquired adequate expertise from working with the Act for nearly 35 years, but it requires no qualifications on behalf of the staff conducting the self-consultations.
What about the provisions related to climate change?
The proposed rule summary states: “[T]here is no requirement to consult on greenhouse gas (GHG) emissions’ contribution to global warming and its associated impacts on listed species....GHG emissions from building one highway are not an ‘essential cause’ of any impacts associated with global warming. Moreover, any such effects are later in time, but are not reasonably certain to occur.” The revised ESA will not acknowledge the complicated situation presented by climate change and will not attempt to mitigate losses of species or habitat due to climate change or the causes of climate change.
Rather than conduct a thorough overhaul of the ESA or leave it to its successor, the current administration is hastily pushing the mutated ESA through while many constituents are consumed by the economy and the elections. Neither is there hope for Congressional deliberation—the changes do not require [http://en.wikipedia.org/wiki/Rulemaking] Congressional review or approval.
Oklahoma has 19 of the 1,358 threatened and endangered plants and animals.
The public comment period for the proposed rule ends Wednesday.
For the full text of the proposed rule go here.
*Editors Note: Mr. Howery agreed to speak with Fresh Greens as a private citizen. His comments should not be construed as representing the views of the Oklahoma Department of Wildlife or any other state agency.