ESA and the Bush Administration

Environmentalists and congressional Democrats blasted the Bush administration in late March over leaked documents showing ongoing discussions about an across-the-board Endangered Species Act (ESA) overhaul that would scale back federal power to list species or prevent disruptive activities in their habitat. The 114 page draft, dated June 2006, included detailed regulatory language and revisions and edits made as late as February. The Interior Department draft being circulated by the Center for Biological Diversity (CBD) and featured on Salon.com, is broader in scope than environmentalists or industry lobbyists had been led to expect.

Kieran Suckling of the CBD, said it reads like a wish list of how to change the act to make it comply with changes the administration has sought without success in court. “This is exactly what they have been trying to do for the last six years,” Suckling said. If the proposal went forward, it would remove recovery standards, scale down the scope of listing species and allow states to take over parts of the act or veto endangered species listing. “They undermine every aspect of law,” Suckling said.

House Interior Appropriations Committee Chairman Norm Dicks (D/WA) called the administration’s approach “worrisome.”  “If you are going to make comprehensive changes, you have got to come to the U.S. Congress,” Dicks told U.S. Fish and Wildlife Service (FWS) Director Dale Hall.  Chairwoman Barbara Boxer (D/CA) of the Senate Environment and Public Works Committee vowed to “vigorously oppose any weakening of the Endangered Species Act.” But Rep. John Peterson (R/PA) encouraged Hall to plow forward, saying he would be “as old as Moses” before the House and Senate ever reached agreement on legislative changes to the law.

Hall told the House Natural Resources Committee (HNRC) in an early May letter that his agency is working on rule changes that would limit ESA protection to plants’ and animals’ current habitat, rather than throughout their historic range, and allow states and other federal agencies to consult on ESA cases, a task now restricted to FWS biologists. House Democrats say the proposed rule changes could undermine key protections for species. “This is an agency that seems focused on one goal — weakening the law by administrative fiat, and it is doing much of that work in the shadows, shrouded from public view,” said HNRC Chairman Nick Rahall (D/WV). “We fear it is on a fast track, and I urge Congress to pay careful attention to the regulatory process that is under way, because what was not achieved legislatively in the last Congress could easily be achieved administratively,” said Defender of Wildlife’s Jaime Rappaport Clark. Clark was FWS Director under the Clinton administration.  In an interview broadcast in mid May on E&ETV’s OnPoint, former representative Richard Pombo (R/CA), who pushed for the rewrite under the last Congress, said his staff worked closely with the administration and FWS staff to shape the legislation last year. “I would expect their proposal in terms of regulatory changes or administrative changes would reflect a lot of things we had in the bill,” Pombo said. A former Pombo aide, Todd Willens, now a deputy assistant secretary at Interior, said in an interview that he has not yet been directly involved in the regulatory rewrite but would likely be a part of the team that reviews the proposal.

FWS should complete its ESA recommendations “very, very soon,” Hall said. The proposal is expected to be sent to Interior for review within the next few weeks, he said. Interior Secretary Dirk Kempthorne, Deputy Secretary Lynn Scarlett and others will have the final say, he said. Some proposed provisions of the ESA rewrite that environmentalists found most troubling have been cut, Hall said.  No longer under consideration are proposals that would change the definition of what puts a species in “jeopardy,” give veto power to states on federal listing decisions and allow the destruction of vegetation grown after critical habitat is designated. Still being considered, Hall wrote is a provision allowing the government to avoid designating “critical habitat” if a species is not threatened by habitat loss and “adverse modification” rules aimed at limiting destruction of important habitat.

Under the current language of the ESA, the FWS under the George W. Bush administration has listed only 57 species as protected, according to a CBD report released in early May. By contrast the FWS under the George H.W. Bush and Clinton administrations listed 234 and 512 species, respectively. Additionally, at least two species — the Hawaiian Haha and the Lake Sammamish Kokonee — have gone extinct during the current Bush administration, and there are other species on the candidate list right now that are close to extinction. “...what the administration has done to date is to say that they don’t have enough money and resources to list these species,” said Bill Snape, senior CBD counsel. But an Interior Department official attributed the lack of listings to a backlog of litigation against the agency regarding the listings.

Meanwhile, a high-ranking Interior Department official accused of systematically pressuring career employees into changing scientific documents and findings related to ESA listings, has resigned. Interior’s inspector general (IG) Earl Devaney said in a report released in late January that Julie MacDonald, Deputy Assistant Secretary for Fish, Wildlife and Parks, before resigning, had used her post to intervene in FWS work on species listings and critical habitat decisions and sent information to third parties to use in challenging the FWS in court.

“MacDonald has been heavily involved with editing, commenting on, and reshaping the Endangered Species Program’s scientific reports from the field,” Devaney wrote. MacDonald has a degree in civil engineering and no formal education in natural sciences. The IG report marks the latest in a series of incidents on a range of environmental issues — from climate change to forests — in which Bush administration political appointees have attempted to censor documents or limit the distribution of scientific information.

Rep. Dicks, called MacDonald’s actions “highly inappropriate” and “very concerning.” Dicks grilled Interior’s top lawyer at a hearing in late January on what he sees as a pattern of ethical problems — including the MacDonald report and former Deputy Secretary J. Steven Griles’ guilty plea the week before on a charge of lying to a Senate panel.

MacDonald had been at the center of complaints from environmental groups over the past year, who charged her with flagrant edits of scientists’ habitat and listing decisions to bring them more in line with political goals. The Union of Concerned Scientists and CBD released documents last year that showed she had rejected scientists’ recommendations on federal protection for imperiled animals at least six times in the past three years.  And a coalition of environmental groups sued the Interior Department last December over its decision not to protect a prairie dog species, due to orders from MacDonald.

An FWS assistant director for external affairs described MacDonald as “an angry woman” who had been abusive to her and had become a liability to the FWS. She stated MacDonald had demoralized the FWS program with her interference in endangered species studies — often reaching “way down the line” to have reports reflect what she wanted, the report says. MacDonald provided an unpublished copy of an interim critical habitat designation policy to the Pacific Legal Foundation, a conservative law firm that has challenged several ESA listings in the West. She also forwarded U.S. EPA files on water policy and guidelines to a private AOL account and a chevron texaco.com address.

Meanwhile in the private sector, a group of the world’s top scientists announced in early May that they will lead a $12.5 million effort to document the world’s 1.8 million named species in an online “Encyclopedia of Life.” The scientists aim to create a separate Web page on every known species within the next decade. Like Wikipedia, the pages will be subject to public editing. The effort is a collaboration of Chicago’s Field Museum, Harvard University, the Marine Biological Laboratory at Woods Hole, MA., the Smithsonian Institution, the Biodiversity Heritage Library and the Missouri Botanical Garden. The sites’ creators have said they will make entries available in several major languages.