December 12, 2008

New York Times on ESA Regulatory Changes

By New York Times on ESA Regulatory Changes

The New York Times reports on environmental, academic, and property rights groups reactions to the ESA regulatory amendments.  Nothing new from the environmental community: its basic contention is that the regulatory changes undercut the Section 7 prohibition against jeopardizing actions by allowing supposedly inept or corrupted nonwildlife federal agencies to make what would ordinarily amount to the final decision on whether consultation is necessary.  The environmentalist critique rings hollow, for several reasons.

First, if the nonwildlife federal agencies were really that bent on the destruction of species, they would have achieved that end long ago under the old regs, which authorized action agencies to skip Section 7 consultation altogether if they determined that the proposed agency action would have no effect on listed species or their critical habitat.

Second, the ESA's citizen suit provision allows for private parties to sue federal agencies who violate their Section 7 consultation duties.

Third, the ESA authorizes the Services to request action agencies to consult, notwithstanding those agencies' first-cut "no effect" analyses.

Fourth, and perhaps most tellingly, the regulatory changes, by definition, exempt only those actions that have beneficial effects, or no effects, or immeasurably insignificant effects.  Thus, the environmental community should be applauding these changes as a smart way of saving limited widlife budget dollars to focus on the projects that truly do pose risks to protected species.  The fact that the environmental community is instead suing to overturn the regs makes plain the subtext of this months-long controversy—how the Left can use the ESA to frustrate economic progress and development.

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