The Bush administration on Thursday eliminated 35-year-old regulations in the Endangered Species Act that required an independent scientific review of proposed federal projects to determine whether they imperil protected plants and animals.
Instead, federal agencies undertaking projects like road and power plant construction or oil and gas drilling will make their own assessment. Without the independent reviews, such projects could be accelerated.
As part of the changes announced by Interior Secretary Dirk Kempthorne in the final days of the Bush administration, the department finalized an interim rule that allows oil and gas drilling in polar bear habitat off Alaska's coast. The rule change is designed to prevent the Endangered Species Act from being used to regulate greenhouse gas emissions, essentially making climate change policy.
Kempthorne, who characterized the new rules as a common-sense streamlining of bureaucratic processes, acknowledged that there was disagreement within the department regarding the rules, which take effect in 30 days.
Under current law, agencies must submit any plans that could harm species on the endangered list for review by scientists at the U.S. Fish and Wildlife Service, which enforces the Endangered Species Act. The process has been criticized by home builders groups and the oil and gas industry for delaying costly projects.
The consultation requirement was intended as more than just a check and balance.
Jamie Rappaport Clark, executive vice president of Defenders of Wildlife and director of Fish and Wildlife under President Clinton, said the consultation process resolved the problem of "mission conflict" between agencies. The Department of Defense, for example, might not understand why an endangered plant should be considered when expanding a bombing range.
"The problem is the agencies don't always properly consider, understand or protect species in their habitat because they are focused on the pursuit of their primary mission," Clark said. "It's hard for the biologists to satisfy their responsibility to protect species if the agency perceives it affects their primary mission."
President-elect Barack Obama said he would reverse the rule changes, as have some members of Congress. But that requires a lengthy rule-making process. In the House, members can invoke the rarely used Congressional Review Act to overturn the regulations.
"These changes are going to result in more species being put in jeopardy," Clark said. "But more importantly, we are not going to know what we don't know anymore."
Officials said agencies would still be held liable if they approved projects that harmed threatened or endangered species. Kempthorne also noted that any federal agency could choose to informally consult with the Fish and Wildlife Service at any time.
H. Dale Hall, director of Fish and Wildlife, said he had concerns about how fast the estimated 235,000 public comments were processed. Staff assigned to the job spent eight hours a day tabulating the comments. Working under strict time restraints, agency employees had nine seconds to read each letter, according to one calculation.
Officials said that more than 200,000 of the comments opposed the rule change.
Attempts to revise the Endangered Species Act have been rebuffed by Congress in recent years. Sen. Barbara Boxer (D-Calif.) said Thursday's actions were another assault on the law.
"These midnight regulations are part of a continuing effort by the Bush administration to repeal our landmark environmental laws through the back door and weaken protections for our nation's endangered species," she said in a statement.
"I believe they are illegal, and if similar regulations had been in place, they would have undermined our ability to protect the bald eagle, the grizzly bear and the gray whale," Boxer said.
Environmental groups, which took the administration to court to force it to list the polar bear, vowed to continue the legal battle. Three groups, the Center for Biological Diversity, Greenpeace and Defenders of Wildlife, filed suit in San Francisco hours after the changes were announced, arguing that the regulations failed to follow the public review process.
"The Bush administration has repackaged the same old lump of coal as a holiday present for the polar bear, and once again handed its friends in the oil industry a huge gift," said Kassie Siegel, climate program director at the Center for Biological Diversity and lead author of the 2005 petition to list polar bears. "These regulations seem designed to drive the polar bear extinct."
The rule regarding polar bears comes seven months after that animal became the first to be placed on the Endangered Species List primarily because of global climate change.
The melting of sea ice is threatening the polar bear with extinction. This summer, scores of polar bears were observed swimming in open seas, far from land or ice floes.
But Kempthorne said that he wouldn't allow the 1973 law to be used as a "back door for implementing climate-change policy." To that end, he clarified regulations addressing threats to polar bear habitat: greenhouse emissions from automobiles, power plants and other human activities.
The act requires federal agencies to designate habitat critical to the creature's survival, then protect it by strict enforcement. Kempthorne said that according to his reading, court rulings require pinpointing a specific source of a threat to habitat -- something that he said was scientifically impossible. That interpretation of the courts' opinions gives the government few options to protect polar bear habitat.