An endangered Endangered Species Act?

Top management at the U.S. Fish and Wildlife Service tries a regulatory overhaul, outraging environmentalists


The Endangered Species Act has stood unchanged since 1988. Attempts at overhauling the bedrock environmental law have repeatedly failed; most recently, erstwhile California Congressman Richard Pombo pushed a pro-business rewrite through the House, only to see it die in the Senate. Now “reformers” appear to have taken a different tack — changing the regulations that implement the act, rather than the act itself, an approach that requires only the Interior secretary’s signature instead of congressional approval.

Draft U.S. Fish and Wildlife Service documents leaked late in March to two environmental groups show dozens of proposed revisions. “There are things in here that clearly would alter the act in ways that reduce protection for species,” says Sean Skaggs, a partner in the law firm of Ebbin, Moser + Skaggs and an Interior Department lawyer from 1991 to 2001.

“We’re trying to figure out ways of making the act work better,” says Joan Jewett, a spokeswoman for the Fish and Wildlife Service, “not compromising it.” The final regulations will probably differ significantly from those in the draft, she says, and they’ll be reviewed under the National Environmental Policy Act with a public comment period.

One of the most controversial revisions would give the states greater control over endangered species. Governors could veto experimental reintroductions of wildlife unless those reintroductions are required for the species’ survival. If such a veto had existed then, wolves would not have been reintroduced in Idaho, because the state’s governor objected. The draft wording also allows “states to request and be given the lead role in almost every aspect of the act,” but that’s not appropriate for a federal law, says Mark Stermitz, who represents the state of Montana in endangered species litigation: “Federal courts have consistently recognized that protecting endangered species is in the national interest and shouldn’t be put at risk by the whims of local political boundaries.”

In the end, many of the proposed changes may not stand up in court, lawyers say, because regulations cannot contradict the law they implement. “From a legal standpoint,” says James Lynch, an attorney specializing in endangered species law at K&L Gates of Seattle, Wash., “an agency cannot exceed its statutory authority when enacting regulations.” But it can certainly try.

Note: in the print edition, a side image provides examples of the old wording of the regulations, the new proposed wording, and what the changes would mean.

The author is HCN’s news editor.

Apr 16, 2007 03:15 PM

Just wondering why HCN does not capitalize proper nouns such as Secretary of the Interior and the Act (referring, of course, to the Endangered Species Act).  It would be a lot easier to read if you followed these capitalization guidelines, so we wouldn't have to keep rereading. 

May 07, 2007 03:29 PM

In the Bush Administration's effort to counteract the 9th Circuit's ruling on necessary fish protections, there is the same old exasperating tenacious cling to the status quo of how this economy functions.  No consideration is given to the fact that ample energy sources are available to replace lost hydropower by using the falling water differently, using the sun, the wind, and biomass.  The manipulations of a Cheney are so clear in this.  Why do we permit this administration to propose such insulting and arrogant projects to circumvent principles of law and rulemaking?  Why do they so frequently resort to these ham handed ways of trying to champion the wealth of the captains of industry instead of following the principles of administrative law?  Why do they think this will work?