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.
Click here to see 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.