Many of you are aware that the Bush Administration is engaged in a last ditch attempt to undermine the Endangered Species Act. The administration recently proposed new rules that would eliminate the requirement that federal agencies obtain the input of U.S. Fish and Wildlife Service biologists before approving development projects that might harm endangered species. The proposal has resulted in massive public outcry. The U.S. Fish and Wildlife Service (”FWS”) is working frantically to finalize the new rules before President Bush leaves office, in order to make it as difficult as possible for a new administration to overturn them.
In the rush to finalize the regulation, the Bush Administration is utterly disregarding public input. The proposed rules, which constitute the biggest changes to the Endangered Species Act in two decades, were issued with only a 30 day public comment period. Widespread public objection convinced FWS to extend the comment period to sixty days. The FWS received roughly 300,000 comments (200,000 substantive comments, and 100,000 form letters), most of which expressed strong opposition to the proposed rules. Interior Secretary Dirk Kempthorne ordered 15 members of his staff to review all 300,000 comments in 32 hours. In order to review the 200,000 substantive comments in 32 hours, each member of the team assigned this task will need to review seven comments each minute. It usually takes months to review public comments on a proposed rule, and this short timeframe for processing comments will set a record.
The FWS is also legally required to prepare an Environmental Assessment in order to assess the potential environmental effects of the proposed regulatory changes. In spite of the general consensus among independent experts that the proposed changes will result in greatly increased imperilment of endangered species, the FWS conducted a cursory analysis of the impacts, issuing a 26 page Environmental Assessment that concludes that implementation of the proposed rules will have no impact on threatened and endangered species. The comment period on this Environmental Assessment was limited to ten days, rather than the standard 30 day comment period that is usually allowed.
The Bush Administration is no longer even pretending to take public input seriously, and it is beginning to look like they may succeed in their effort to finalize the rules before President Bush leaves office.
President Elect Barack Obama has promised to reverse the proposed rules. However, the speed with which the Bush Administration finalizes the rules, could determine how hard they are to reverse. If the rules have not been finalized before Obama takes office, then the new administration can immediately freeze the rules. Major regulations do not go into effect for 60 days, so the Bush Administration is striving to issue the new rules by November 20th, in order to have them finalized before Obama is inaugurated on January 20th. If the regulation is finalized before Obama takes office, reversing it would require going through the review and public comment period again. This could take months or even years, allowing large numbers of projects that harm endangered species to be approved before the regulation is reversed.
There is one other option for a quick reversal of the rules that could occur even if the regulations are finalized before Obama takes office. Congress can exercise rarely used authority under the Congressional Review Act, which gives Congress a limited window of time to vote on overturning a new regulation after it is finalized. Congress has only used this authority once in the past, in March of 2001, when President Bush signed a congressional resolution to overturn President Clinton’s workplace ergonomics standards. There was overwhelming opposition to the ergon0mics standards among Republicans and the business community, and several Democrats also voted for the resolution. There are some indications that Democrats are considering using this authority to overturn the endangered species rulemaking.
Center for Native Ecosystems will continue to watch this process closely. We will work to ensure that the new Obama Administration and Congress overturn the new rules as quickly as possible. We are also poised to challenge the rules in court if necessary.
The proposed changes to the Endangered Species Act are just one small piece of a concerted strategy that the Bush Administration has mounted over the past eight years to reduce protections for public lands and open them to all types of industry, allowing mining, timber and oil companies to exploit resources at the expense of the environment. This strategy includes a whole suite of controversial last minute regulations aimed at weakening environmental protections before the Bush Administration leaves office, many of which could have lasting impacts on imperiled wildlife and plants. We are very hopeful that better days are ahead, but we know we must remain especially vigilant in our efforts to protect native species and ecosystems during the waning days of the Bush Administration.
