The endangered Endangered Species Act

Unless you are lucky enough to see it in bloom, you might never notice the Cushenbury milk-vetch. Its slender, silvery-white stems lie flat to the ground, and its delicate pink-purple flowers emerge for just a few months. The Cushenbury milk-vetch is no soaring California condor or howling gray wolf, but it too has barely dodged extinction because it is protected by one of America’s bedrock environmental laws: the federal Endangered Species Act.

But now those protections are about to be weakened by the Bush administration -- not just for the milk-vetch but for each of the nearly 2,000 animals and plants protected by the Endangered Species Act -- and it is up to Congress to stop it.

The core of the act’s safety net is the requirement that, before any federal agency (such as the U.S. Forest Service or the Department of Transportation) can take an action that may affect protected species, it must first consult with federal wildlife scientists to ensure that its action will not negatively affect them. This “consultation” requirement is widely regarded as the statute’s most effective conservation tool.

Last month, the outgoing Bush administration proposed drastically altering that requirement. So instead of being required to consult with independent scientists at the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, federal agencies would be allowed to consult with themselves. Under such “self-consultations,” agencies could decide, entirely on their own, that their actions would not have any negative effects on protected wildlife.

Which brings me back to the humble milk-vetch, almost 90% of whose habitat is located on federal land in the San Bernardino Mountains. Self-consultations have been tried before, by the very agencies that the milk-vetch depends on for its survival: the Bureau of Land Management and the U.S. Forest Service.

In 2003, those two agencies entered into an agreement that allowed them to skip independent scientific reviews under the Endangered Species Act and “self-consult on many projects,” such as “mechanical thinning” of forests. The results? According to a review by the departments of the Interior and Commerce, when left to their own devices, the Forest Service and BLM made the wrong call 62% of the time.

This should come as no surprise. Federal agencies’ missions don’t always include protecting wildlife. The Bureau of Reclamation is about moving and storing water, the Army Corps of Engineers likes to build things, and the U.S. Forest Service likes to cut down trees. Of course these agencies are going to be biased in favor of projects that further those core missions. They don’t have -- and shouldn’t be expected to have -- the expertise or the incentive to fairly assess the effects of their activities on endangered wildlife.

And it’s not just wildlife on federal lands that would be hurt by these changes. Protections would drop for many animals, from endangered whales harassed by loud Navy sonar exercises off the coasts of California and Hawaii to endangered fish in Midwestern streams crossed by heavy crude-oil pipelines.

The Bush administration is trying to rush the changes through the regulatory process, originally allowing a mere 30 days for public comment and holding no hearings whatsoever. Because of a public outcry, the comment period has been extended to 60 days, to Oct. 14, which is still inadequate, and the administration is still refusing to hold any hearings.

The public deserves better. After all, animals as diverse as threatened migratory birds in Alaska to endangered panthers in Florida are affected.

It is time for Congress to act. The executive branch can change Endangered Species Act regulations without congressional approval, but such changes require money to process, finalize and implement. Congress should cut off those funds until the next president is inaugurated.

Regardless of who wins the election, the Endangered Species Act deserves better than the bum’s rush that the Bush administration is giving it.

Andrew E. Wetzler is director of the Natural Resources Defense Council’s Endangered Species Project.