Restoring the Endangered Species Act

Obama has announced that he will reverse Bush's last minute changes to the Endangered Species Act. (Some readers may already have seen this news from Birdchick.) Last fall, the Interior Department issued new regulations that would allow other federal agencies to determine whether endangered species would be threatened by those agencies' actions, instead of having scientists at the Fish and Wildlife Service make that judgment. These cases could potentially include everything from building new military bases to handing out drilling or mining leases, as well as indirect actions involving federal contracts. Allowing agencies that do not employ biologists to make those determinations would render the Endangered Species Act virtually meaningless.

Undoing the damage will require issuing new regulations, which may take several months. In the meantime, Obama has instructed the agencies to submit projects to Fish and Wildlife officials for review. The change could have immediate results:

Earthjustice lawyer Janette Brimmer, whose group had challenged the Bush rule in federal district court in California, said she expected that the new administration would reexamine two pending projects: a Bureau of Land Management plan for overseeing Oregon's forests, which was finalized on Dec. 30 and could affect protected species such as the northern spotted owl; and construction of the White Pine coal-fired power plant in Nevada.

Bush's rule also specifically banned federal agencies from taking climate change into account during environmental reviews, so that the Endangered Species Act could not be used to regulate greenhouse gas emissions. It seems that the Obama administration will undo this change as well, but it is not immediately clear what the new policy will be.

Officials said the move is unlikely to trigger broad use of the Endangered Species Act to regulate greenhouse-gas emissions. While the Bush rule specifically prohibited endangered species consultations on the basis of "global processes" such as climate change, an Interior official speaking on the condition of anonymity said that under the new policy, such a review would be triggered only if scientific evidence suggested "a causal connection" between emissions from a federal project and its effect on an imperiled species or an identifiable part of its habitat.

Since the polar bear became the first species to be listed under the Endangered Species Act due to climate change (i.e., the loss of sea ice habitat), the question of how to protect it is particularly pressing. As other Arctic species see their populations decline, even more will likely join the polar bear on the Endangered Species List. Will the Interior Department use the Endangered Species Act to regulate emissions and thus protect Arctic habitats, or will it simply curtail hunting and development and hope that Congress does something about greenhouse gases? Either way, its decision will probably end up in federal court.