An endangered act

The Bush administration has shown extraordinary disdain for the Endangered Species Act over the years, dragging its heels on listing some species (polar bear, sage grouse, wolverine) and removing vital protections for others (gray wolf, arroyo toad, red-legged frog, spotted owl). Time after time, it has been pulled into court for flouting the law, and most of the time it has lost and been ordered to do its job.

But regard for endangered species hit a low point this week, when Interior Secretary Dirk Kempthorne proposed a regulatory change that would undermine not just case-by-case decision-making but the law’s basic procedures. According to the proposal (pdf), federal agencies that wanted to start a new project -- a road, say, or a dam -- could decide on their own that it wouldn’t harm an imperiled species, in which case they wouldn’t have to consult with the wildlife biologists at the U.S. Fish and Wildlife Service or National Marine Fisheries Service who are the experts on these matters.

Other agencies not only lack such expertise, they have a built-in conflict of interest. We wouldn’t think of letting an oil company decide whether a new offshore rig might harm the ocean; we wouldn’t allow a pharmaceutical company to market a new medication on its say-so that the drug is safe. Why would we let the Department of Transportation build a new road through the habitat of the California gnatcatcher because its engineers claim that the project would do no harm?

Under Kempthorne’s proposal, a project could be halted or scaled down only if it was “reasonably certain” to harm endangered species; currently, scientists must show that damage is “reasonably foreseeable.” The proposal also would make it harder for scientists to consider the cumulative effects of various projects.

Because of a 30-day public comment period, instead of the usual 60 or 90 days, the rule could be adopted and in place before the presidential election. Though it might well be overturned by Congress, the courts or perhaps a new administration, the process would take months, giving federal agencies the chance to push through their projects. That makes this proposal a particularly cynical move, designed for expediency, not good government.

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