January 1, 2009 Issue 193 Volume 3
Washington, D.C.: The Interior Department yesterday finalized rules changing the way it administers the Endangered Species Act, enabling other government agencies to decide on their own whether a project would harm an imperiled species without an independent scientific review.
Interior Secretary Dirk Kempthorne called the move "a clarification" he considered essential in order to narrow the law's reach.
"The rule strengthens the regulations so the government can focus on protecting endangered species as it strives to rebuild the American economy," Kempthorne said, adding that agencies can bypass a review by either the Fish and Wildlife Service or the National Oceanic and Atmospheric Administration only "in specific and limited instances where an action is not anticipated to harass, harm or kill a protected species."
"The agency still has the full responsibility to make that decision and to defend that decision," Hall said, noting that the loss of an imperiled species, known as "take," carries legal penalties. "They're still liable for take, if take occurs."
Hall said he was initially concerned about "the compressed time frame" in which the agency pushed through the rule change, which was unveiled in August, but he added that he didn't "see any harm" in Kempthorne's final decision.
Interior went ahead with the rule change one day after the Environmental Protection Agency dropped two other controversial rules changes, saying they had come along too late in President Bush's term. White House spokesman Tony Fratto said the reason was that the administration had "publicly and clearly stated our intention" to enact the endangered species measure well before a self-imposed deadline on eleventh-hour rule changes.
The agency received nearly 235,000 comments on the endangered species proposal, at least 208,000 of which were form letters decrying the rule.
"As the Bush administration fades off into the sunset, it continues to take brazen pot shots at everything in sight, including America's landmark conservation law, the Endangered Species Act," said House Resources Committee Chairman Nick J. Rahall II (D-W.Va.), who said he would introduce legislation seeking to overturn the rule next year.
Separately yesterday, Interior issued a finding limiting the protections that could be invoked to protect polar bears, which were listed as a threatened species this year, on the grounds that the bears are already protected under the Marine Mammals Protection Act. The finding means that the bears' protected status could not be used to block activities such as oil and gas development outside their Alaska habitat.
"We do not believe the science is there to make the causal link between activities in the lower 48 to the take of a polar bear," Kempthorne said.
"To finally admit that the science compels the listing of the polar bear as threatened due to global warming, but then deny it the protections the Endangered Species Act should provide, is nothing other than irresponsible and shameful," said Jamie Rappaport Clark, executive vice president of the advocacy group Defenders of Wildlife, adding that her group would sue to overturn the rule.