Rule changes lift required reviews of projects’ effects

The Bush administration on Thursday eliminated 35-year-old regulations in the Endangered Species Act that required an independent scientific review of proposed federal projects to determine if they imperil protected plants and animals.

Instead, federal agencies undertaking projects like road and power plant construction or oil and gas drilling will make their own assessment. Without the independent reviews, such projects could be accelerated.

As part of the changes announced by Interior Secretary Dirk Kempthorne in the final days of President Bush’s term, the department finalized an interim rule that allows oil and gas drilling in polar bear habitat off Alaska’s coast. The rule change is designed to prevent the Endangered Species Act from being used to regulate greenhouse gas emissions, essentially making climate change policy. Kempthorne, who characterized the new rules as a “common sense” streamlining of bureaucratic processes, acknowledged that there was disagreement within the department regarding the rules, which take effect in 30 days.

Under current law, agencies must submit plans that could harm species on the endangered list for review by scientists at the U.S. Fish and Wildlife Service, which enforces the Endangered Species Act. The process has been criticized by home builders’ groups and the oil and gas industry for delaying costly projects.

Jamie Rappaport Clark, executive vice president of Defenders of Wildlife and the director of Fish and Wildlife under President Bill Clinton, said the consultation process resolved the problem of “mission conflict” between two federal agencies. The Department of Defense, for example, might not understand why an endangered plant should be considered when expanding a bombing range.

“The problem is the agencies don’t always properly consider, understand or protect species in their habitat because they are focused on the pursuit of their primary mission,” Clark said.

President-elect Barack Obama said he would reverse the rules, as have some members of Congress. But that requires a lengthy rule-making process. In the House, members can invoke the rarely used Congressional Review Act to overturn the regulations.

Officials said agencies would still be held liable if they approve projects that harm threatened or endangered species. Kempthorne also noted that any federal agency could choose to informally consult with the Fish and Wildlife Service at any time.

Dale Hall, director of Fish and Wildlife, said he had concerns about the speed at which some 235,000 public comments were processed. Staff assigned to the job spent eight hours a day tabulating the comments. Working under strict time restraints, agency employees had nine seconds to read each letter, according to one calculation.

Officials said more than 200,000 of the comments opposed the rule change.

Attempts to revise the Endangered Species Act have been rebuffed by Congress in recent years. Sen. Barbara Boxer, D-Calif., said Thursday’s actions were another assault on the law.

“These midnight regulations are part of a continuing effort by the Bush administration to repeal our landmark environmental laws through the back door and weaken protections for our nation’s endangered species,” she said in a statement.

“I believe they are illegal, and if similar regulations had been in place, they would have undermined our ability to protect the bald eagle, the grizzly bear, and the gray whale,” Boxer said.

Environmental groups, some of which took the administration to court to force it to list the polar bear as an endangered species, vowed to continue the legal battle.

Three groups, the Center for Biological Diversity, Greenpeace and Defenders of Wildlife, filed suit in San Francisco hours after the changes were announced, arguing the regulations failed to follow the public review process.