Late last week the Bush administration posted on a government web site a memorandum detailing its latest attempt to weaken the Endangered Species Act and protections for our most imperiled plants and wildlife. In a practice sometimes called “taking out the trash,” referring to Friday afternoon decisions designed to avoid notice by reporters, the document didn’t appear on the Department of Interior web site until late Friday afternoon and the Bush administration didn’t bother to announce its release. It describes a new legal interpretation of the Endangered Species Act that would decimate protections for imperiled plants and wildlife across the United States. It’s a sophisticated legal maneuver but boils down to an utterly nonsensical interpretation of the Act: when deciding whether a species is endangered, they will now only look at the habitat it currently occupies and not how much the species has declined over time. In other words, if a species has been wiped out across 99% of its range but is doing ok in the remaining 1%, the Bush administration would refuse to protect it because it will only consider its status in those few places where it still survives. If that weren’t enough to gut the Act, it goes even further, insisting that all surviving populations of a species be headed toward extinction whether or not the species as a whole is at risk.
Of course many of the species we work to protect – the Deseret milkvetch, found in a single population along a highway south of Salt Lake City, comes to mind – have been reduced to only one or a few populations. Even if those few populations are doing well, the species are still highly endangered because of their susceptibility to random events – like mud slides, a single bad storm, a careless bulldozer operator – that wipe out those populations. Others, like the beautiful Graham’s penstemon, are endangered in nearly but perhaps not quite all surviving populations, and thus wouldn’t presumably qualify for protection.
If upheld by the courts, the new policy would eliminate critical protections for an estimated 80% of the imperiled plants and wildlife currently protected under the Act. Even worse, it would create an incredible incentive for developers, oil and gas companies, and others to actively destroy habitat for imperiled species, since once that habitat is destroyed it won’t count in the analysis of how endangered the species is. As our colleague Kieran Suckling told the Associated Press, “this policy will do more to promote the purposeful killing of imperiled species than anything else this administration has ever done.” In fact, had this policy been in effect when the bald eagle, gray wolf, or grizzly bear were listed, they probably would not have been granted the protection of the Endangered Species Act. The idea so completely defies common sense and ignores the law that the courts have rejected it in nearly every instance that the Bush administration has tried to use it, but the repeated rejection of a legal theory by the courts is no deterrent to an administration intent on gutting every one of our legacy conservation laws.
