NOTE: The following is one of a series of case studies produced by the Union of Concerned Scientists' Scientific Integrity Program between 2004 and 2010 to document the abuses highlighted in our 2004 report, Scientific Integrity in Policy Making.
In its final weeks in office, the Bush Administration adopted new rules that allowed any federal agency to decide for itself whether or not wildlife scientists should be called in to review potential impacts on protected species before a project—such as a mine, road or dam—moved forward.
From the time the Endangered Species Act (ESA) was passed in 1973 until January 2009, biologists from the Fish and Wildlife Service or the National Marine Fisheries Service were routinely consulted as part of the approval process for any mining, drilling, damming, road-building, transmission tower, or other project in an area inhabited by endangered plants and animals. The science-based process was known as a Section 7 Review, after Section 7 of the ESA, which required federal agencies to ensure that their actions would not threaten the continued existence of an endangered species or destroy critical habitat.
The changes not only gave agencies leeway to decide whether or not to consult wildlife specialists, but also limited the type of information federal scientists could consider if and when they were consulted. Scientists were prohibited from considering large impacts that "result from global processes" such as pollution leading to global warming, as well as small, "insignificant" impacts. Scientists noted that small impacts, while they may individually seem "insignificant," might cumulatively put endangered plants and animals at risk.
According to Interior Secretary Dirk Kempthorne, the rule changes were driven by his desire to prevent the blocking of development projects on the grounds that they might contribute to global warming. Secretary Kempthorne stated that he wanted to keep the ESA from becoming "a back-door opportunity for climate change policy."
Several months earlier, in May 2008, Secretary Kempthorne had reluctantly announced that "the legal standards under the ESA," which mandate that decisions must be based on the best available science, "compel me to list the polar bear as threatened." Secretary Kempthorne added, "I am taking administrative and regulatory action to make certain the ESA isn't abused to make global warming policies."
Secretary Kempthorne greatly accelerated the review process in an attempt to finalize the rule before the next administration took office. The proposed rule was published on August 15, 2008 and was finalized by December 16, 2008, taking effect on January 15, 2009—just days before the inauguration of President Obama. Tens of thousands of unique public comments were submitted in response to the proposed rule; the agencies reviewed these comments in just 60 days. On average, new rules take well over a year from proposal to final publication.
In March 2009, President Obama temporarily halted the new rules and directed the Departments of Commerce and Interior to consider new rulemaking that would officially restore the old policies. Obama stated, "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."
The new Secretaries of Commerce and the Interior announced in late April 2009 a decision to overturn the Section 7 rule changes. Interior Secretary Ken Salazar stated, "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 new rules were officially rescinded on May 4, 2009.