Science and the Endangered Species Act (2008)

Update: On April 28, 2008, Commerce Secretary Gary Locke and Interior Secretary Ken Salazar announced that the departments are rescinding changes to the Endangered Species Act (ESA) that allow federal agencies to decide for themselves if their own projects—such as roads, dams and mines—would threaten imperiled species. Once again, agencies will be required to consult with expert biologists within the two departments before undertaking or permitting projects.

Just the day before, 1,300 individual biologists (pdf) and three scientific societies (pdf) sent separate letters to the Interior and Commerce Departments urging that the rules be rolled back. In the announcement, Secretary Salazar upheld the importance of the scientific foundation of the Endangered Species Act, stating, "Because science must serve as the foundation for decisions we make, federal agencies proposing to take actions that might affect threatened and endangered species will once again have to consult with biologists at the two departments."

The Endangered Species Act (ESA) has protected hundreds of species from extinction, as well as contributed to population increases and the recovery of species like the peregrine falcon. However, rules enacted by the Bush administration have weakened the ESA by giving any federal agency the authority to decide for itself whether or not protected species would be threatened by agency projects such as roads, dams, or mines.

New Regulations Sideline Science

On January 15, 2008, the Interior Department put into effect new regulations (pdf) that allow any federal agency to decide for itself whether protected species would be threatened by agency projects. Many of these agencies do not have significant biological expertise and often have clear conflicts of interest with the protection of species.

Previously, when a federal agency considered any project (such as a highway, dam, or mine) it was required to consult with the Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) about the impact that a project might have on species. These "informal" consultations typically led to minor adjustments being made to the planned action to lessen the anticipated impact, and also helped identify projects with particularly severe or complicated effects, which then received a thorough "formal" consultation. Between 1998 and 2002, the services conducted over 300,000 consultations.

Among other things, the newly-enacted process eliminates these consultations if the agency planning the activity judges that the action will have minimal effect on endangered species, removing important checks and balances needed to keep our country's biodiversity safe. Many federal agencies do not have the scientific expertise needed to assess if and what kind of protections are needed. The new process cuts the expert scientists from the FWS and NMFS, who for decades have provided critical analysis of the consequences of federal projects for endangered species, out of the process.

Furthermore, there is often a clear conflict of interest between the projects federal agencies want to carry out and the species they may harm in doing so. These agencies should not be allowed to decide for themselves what effects their proposed projects may have on imperiled species.

A Closed Process

According to press reports, the new regulations were drafted behind closed doors with little or no input from endangered species biologists. Furthermore, the public was given minimal time to comment on the changes before they were finalized. The Associated Press reported that the proposed regulations were not even shown to expert federal scientists, but instead were written by attorneys in the Departments of Commerce and the Interior.

Even facing an abridged comment period, the public recognized the seriousness of this rule, submitting more than 200,000 comments.  However, the Interior Department reviewed the comments in a mere 32-hour period, giving each public comment merely seconds of consideration.

One of the founding principles of our nation is a clear system of checks and balances designed to protect our citizens and natural resources from abuses of power. If these rule changes are put into effect, the higher level of accountability required by the ESA will be diminished, and many protected species may follow along with it.

Opportunity to Rollback Harmful Regulations

On March 3, 2009, President Obama issued a pesidential memorandum requesting that the Departments of Commerce and Interior review the recent changes to consultation and consider re-initiating the rulemaking process. In the meantime, Obama directed all federal agencies to follow the previous consultation practice. In his speech announcing the memo, Obama said, "Today I've signed a memorandum that will help restore the scientific process to its rightful place at the heart of the Endangered Species Act, a process undermined by past administrations. The work of scientists and experts in my administration...will be respected. For more than three decades, the Endangered Species Act has successfully protected our nation's most threatened wildlife, and we should be looking for ways to improve it—not weaken it."

Congress is also working to rollback the regulations. A provision in the omnibus spending bill, approved by Congress and signed by the president in March 2009, allows Secretary of the Interior Ken Salazar to erase these devastating rules and ensure that the ESA remains an effective tool for safeguarding our nation's wildlife.

Last Revised: April 28, 2009

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