May 4, 2009

memo to the media: reversal of Section 7 regulations did not restore scientific review of federal projects

By Damien M. Schiff Senior Attorney

Today's Las Vegas Sun contains an editorial in praise of the Obama administration's decision to withdrawal the Section 7 consultation regulations. According to the Sun,

The timing of the decision by [Interior Secretary] Salazar and [Commerce Secretary] Locke is critical as the nation enters a new phase of construction projects that are being financed by the economic stimulus package. Although these projects are essential to creating jobs and getting the economy moving again, the input from wildlife and habitat scientists will help ensure that endangered plants and animals are protected.

The editorial is illustrative of the fundamental lack of understanding of the withdrawn Section 7 regulations that exists throughout most of the media.  Had these regulations actually gone through, nothing would have prevented wildlife and habitat scientists (acting through the U.S. Fish and Wildlife Service or the National Marine Fisheries Service) from requiring consultation in any circumstance and thereby "ensuring" protection of endangered species.

But now that the regs are no longer in place, all federal projects will be subject to bureaucratic overkill.  Even if it is known that a given project will have either zero impact or a beneficial impact on an endangered species, that project will have to go through Section 7 consultation — this is surely an unwelcome development for the taxpayers that are funding these projects.

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