On 11 December 2008, Secretary of the Interior Dirk Kempthorne announced that the Bush Administration would issue a final rule making changes to the implementation of section 7 of the Endangered Species Act (ESA). The final rule changes, proposed on 15 August 2008, were published in the 16 December 2008 Federal Register and will take effect on 15 January 2009.
Announcing the rule changes, Kempthorne said, “I am confident that we have taken a common sense approach, developed over months of work, to adopt needed and legally appropriate changes to our existing regulations.” Some members of Congress and the scientific and environmental communities have expressed concern over how quickly the Administration reviewed approximately 235,000 comments received during the 60-day public comment period, which closed in October.
The final rule seeks to “clarify[y] several definitions, provides assistance as to when consultation under section 7 is necessary, and establishes time frames for the informal consultation process.” Some congressional Democrats and environmental groups have strongly opposed the rule changes, asserting that they will reduce the number of consultations between the federal agencies and the scientists at the U.S. Fish and Wildlife Service and National Marine Fisheries Service.
The rule changes also include language to prevent the regulation of greenhouse gas emissions under the ESA, even if they threaten the survival of listed species (e.g., polar bear). In his announcement of the final rule, Kempthorne said, “If science can not draw a direct causal link between an action and an effect on a listed species, as is currently the case for global processes like climate change, then consultation under the ESA is not necessary.”
Representative Markey (D-MA) stated at a hearing of the Select Committee on Energy Independence and Global Warming, “the Department of Interior is seeking to gut the Endangered Species Act by removing scientific input, weakening protections for iconic species like the polar bear and preventing consideration of the impacts of global warming. The Administration is seeking to make these sweeping changes to the ESA while minimizing public input and review.”
As the final rule will go into effect more than 30 days before Bush leaves office, President-elect Obama and members of Congress will have to work through normal rule-making processes to reverse the Bush Administration decision.
The Center for Biological Diversity has already filed a legal complaint at a federal court in San Francisco concerning the rule.
The final rule is available online at: http://www.doi.gov/initiatives/ESA_Section7FR.pdf
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