This item below courtesy of the Center for Biodiversity, brings us up-to-date on Bush's lame-duck anti-Endangered Species Act regulations, what Obama has done about them, what he hasn't don't about them, and what remains to be done to get rid of them in the next several weeks.
3-18-09
Center for Biological Diversity
(415) 632-5319 for more information
Secretary of Interior Should Rescind Bush Endangered Species Act Rules —
Congressional Authorization Expires in 53 Days
Shortly before leaving office, the Bush administration issued three regulations that (1) remove the U.S. Fish and Wildlife Service as an independent, scientific watchdog over potentially damaging federal projects such as timber sales, mines, and dams; (2) exempt all greenhouse gas-emitting projects, including coal-fired power plants and federal fuel efficiency standards, from Endangered Species Act review; and (3) specifically ban federal agencies from protecting the imperiled polar bear from greenhouse gas emissions. These policies eviscerate the central Endangered Species Act process — U.S. Fish and Wildlife Service oversight — that has protected endangered species for 35 years, and they exclude the greatest future threat to endangered species — global warming — from consideration under the Act.
The Bush policies are the subject of active lawsuits by the Center for Biological Diversity, numerous other environmental groups, and nine states, including California, New York and Oregon. President Barack Obama issued a presidential memorandum on March 3 ordering agencies to temporarily ignore the portion of the regulation blocking U.S. Fish and Wildlife Service oversight. The memorandum does not rescind the regulation, however, and does not address the exemption of greenhouse gas emissions from the Endangered Species Act or limitations on protecting the polar bear.
On March 11, an omnibus appropriations bill was signed into law that gives the secretary of the Interior congressional authority to immediately rescind all three Bush policies. The secretary’s authority to act expires 60 days after the enactment of the law, on May 9. In rescinding the regulations, the secretary will have simply restored the status quo that has protected endangered species for 35 years.
Industry groups are marshalling op-eds and editorials urging Secretary of the Interior Ken Salazar to let the Bush regulations stand. There are many issues on Salazar’s plate, and he has not yet appointed a head of the U.S. Fish and Wildlife Service or filled other key endangered species-management positions. It is far from guaranteed, therefore, that he will rescind the regulations. Editorials in favor of action will elevate the issue and show the secretary that rescinding the Bush regulations is a popular, high-priority action.
The Self-Consultation Regulation. The Endangered Species Act requires federal agencies such as the U.S. Forest Service, Minerals and Management Service and Federal Highway Administration to “consult” with the U.S. Fish and Wildlife Service when considering approval of projects such as timber sales, mines and road building that “may affect” endangered species. The consultation results in a “biological opinion” from the Fish and Wildlife Service, which will typically approve of a project in a modified form that reduces or eliminates impacts to endangered species. The Bush regulations would cut the Fish and Wildlife Service and its independent review out of the process, allowing the Forest Service and other agencies to determine for themselves whether a project is likely to affect endangered species. This is a classic example of allowing the fox to guard the henhouse because agencies such as the Forest Service and Bureau of Reclamation employ staff dedicated to — and receive revenues from — logging public lands and building dams. Allowing them to review their own projects enshrines a conflict of interest in a system that was previously based on independent scientific oversight. Ironically, the Bush administration tested this policy in 2003 and determined that it does not work. When allowed to self-consult over timber sales, the Forest Service and Bureau of Land Management violated the Endangered Species Act 68 percent of the time.
The Greenhouse Gas Exemption. Global warming is rapidly growing as the greatest long-term threat to biological diversity. Scientists estimate that nearly a third of the world’s species could be committed to extinction by 2050 if current levels of greenhouse gas emissions continue. More than 50 percent of federal endangered species recovery plans issued in the past three years identify global warming as a threat. The recent listing of the staghorn and elkhorn corals off the coast of Florida and of the polar bear in the Arctic as “threatened” is the beginning of what will be a long list of global warming-related endangered species list additions. Penguins in Antarctica; seals and walruses in the Arctic; and pikas in the mountains of California, Nevada and Utah are all waiting in the wings for federal protection. While the Endangered Species Act cannot solve global warming by itself, as America’s primary law to prevent the extinction of plants and animals, it has a crucial role to play in ensuring that federal agencies address and mitigate their global warming contributions.
Bush’s 11th-hour regulation defines all greenhouse gas emissions, regardless of how large they are, as part of a single “global process,” then excludes all such processes from review under the Endangered Species Act. The Endangered Species Act, however, makes no such distinction between local and global processes. It simply says that federal agencies must review any action they permit, fund or carry out that may affect a listed species. As greenhouse gases unquestionably threaten polar bears and corals, any federal permitting of coal-fired power plants, coal mines, and oil leases must be reviewed for their impacts. Similarly, federal policies such as the establishment of fuel efficiency standards must be reviewed. The Bush administration’s position that it is necessary to place global warming-threatened species such as the polar bear on the endangered species list — but that it is impermissible to take action save them — is absurd.
The Polar Bear Special Rule. In addition, the Bush administration promulgated a similar polar bear-specific regulation that exempts from regulation all activities occurring outside polar bear habitat. Thus, greenhouse gas emissions from coal-fired power plants and many other sources outside Alaska — even though they are the primary cause of the polar bear’s threatened status— are excluded from regulation under the Endangered Species Act. Because this polar bear “special rule” (also called a “4(d)” rule) is distinct from the national greenhouse gas regulation, it must be separately rescinded. The recently passed omnibus appropriations bill gives the secretary of the Interior the authority to strike both the Endangered Species Act regulations and the polar bear special rule.