Hawaii has more endangered species than any other state. Photo: Steve Holmer, ABC

After efforts by some members of Congress to weaken the Endangered Species Act (ESA) were successfully defeated in 2006, America’s foremost environmental law is once again being contested.

At issue are Section 7 consultations with endangered species experts at the Fish and Wildlife Service and National Marine Fisheries Service, which are currently mandatory for any federal agency where their actions may affect endangered species, even if no negative impacts are likely. This system of checks and balances helps ensure that the 90 birds and 1,263 other animals and plants that are on the Endangered Species List are adequately considered and protected by federal government actions.

A new rule proposed by the Bush Administration would allow agencies to determine on their own when their actions will have no effect on endangered species. The Administration voiced confidence that “…federal agencies will err on the side of caution” in making these decisions; an assertion disputed by the conservation community.

American Bird Conservancy submitted a comment letter during the official comment period, which has been extended until October 14.

“Consultation with experts at the Fish and Wildlife Service is one of the cornerstones of the Endangered Species Act,” said Darin Schroeder, Vice President for Conservation Advocacy at American Bird Conservancy. “Without oversight by experts whose mandate is to protect our threatened wildlife, we will be putting the foxes in charge of the henhouse.”

In October 2005, then Congressman Richard Pombo (R-CA) successfully pushed through legislation in the House to weaken the ESA. The bill included language absolving the Environmental Protection Agency from the need to consult with FWS experts in the registration of toxic pesticides (Bird Calls Vol. 9, No. 3). Fortunately, the bill never made it out of the Senate, and so the ESA survived intact. Subsequently, a 2004 Administration decision to grant the EPA exemption from the consultation process was overturned in court (Bird Calls Vol. 10, No. 3), but that has not deterred the Administration from trying again. This time they have widened the remit to all federal agencies, meaning the effects of dams, mines, and other projects on endangered species could be left to agencies such as the Army Corps of Engineers or Department of Energy to determine.

“This proposal is the latest in a litany of efforts to undermine the ESA,” said Schroeder. “American Bird Conservancy’s 2006 Endangered Species Act Report clearly demonstrates the benefit of a strong legislative foundation to our efforts to protect our most threatened birds. At a time when so many of our birds are suffering long-term declines, we should be increasing protections for them not reducing them.”

The Polar Bear’s Role in the New Rule

Polar Bear and cub. Photo: USFWS

In May, the polar bear became the first species to be listed under the ESA as a direct result of the effects of global warming, which is causing the sea ice that is crucial to the bear’s survival to disappear. According to Interior Secretary, Dirk Kempthorne, this has necessitated changes to the ESA to ensure that the Act is not used as a “back door” to regulate the gases blamed for rising global temperatures. In its draft proposal to change ESA Section 7 consultation requirements, the Administration states that the “new regulations would reinforce the Service’s current view that there is no requirement to consult on greenhouse gas emissions’ contribution to global warming and its associated impacts on endangered species.”

Given that the EPA recently declared it did not intend to regulate

greenhouse gasses under the Clean Air Act, it is not clear how these emissions should be regulated. In a news conference in August, Kempthorne stated “It is not possible to draw a link between greenhouse gas emissions and distant observations of impacts on species,” a statement that surprised many conservationists who have been able to document the changes to ecosystems and bird migration patterns and timing as a direct result of changing temperatures caused by carbon dioxide and other greenhouse gasses. For more information on the effects of global warming on birds, visit http://www.abcbirds.org/conservationissues/globalwarming/global_warming_factsheet.pdf.