November 10, 2008

protection unendangered

By protection unendangered

Sharon Guynup has an op-ed in today's Baltimore Sun that criticizes the proposed Endangered Species Act Section 7 regulations. One interesting aspect of her analysis is that, on the one hand, Guynup recognizes that the U.S. Fish and Wildlife Service and the National Marine Fisheries Service are "severely underfunded, understaffed agencies." On the other hand, however, according to Guynup FWS and NMFS need always to be present to help other federal agencies decide when a project may threaten an endangered species:

However, self-regulation by federal agencies with no expertise in wildlife, botany or ecology poses obvious problems. Suppose there's a proposal before the Federal Highway Administration to build a road through a meadow where bog turtles lay their eggs. Surveyors and bureaucrats will evaluate the impact. As long as turtles won't be paved over or drop dead on the spot, the project will be quickly green-lighted. That the area is a key nesting ground is a fact that agency "experts" would most likely fail to recognize, which is no small mistake when extinction is the consequence.

Guynup gives too little credit to the federal agency experts who work outside of FWS and NMFS. Yes, it is true that they work outside of FWS and NMFS. But over the years the other agencies and the experts who staff them have worked countless times with FWS and NMFS for Section 7 and other ESA-related purposes. Agencies such as the Federal Highway Administration have capable and experienced employees who are able to recognize the difference between a project that could jeopardize the existence of a species, and one that will have little effect.

But let's assume, for the sake of argument, that Guynup is right and that in her example a potential highway construction area "is a key nesting ground [which] is a fact that agency 'experts' would most likely fail to recognize." Does that mean extinction of the bog turtle is the consequence?

By no means, and anyone who understands how the Endangered Species Act and the proposed Section 7 regulations work should realize this. First, federal projects do not happen overnight. Planning alone for one individual project can take months, even years, to complete. Environmental advocacy groups have used the ESA's citizen suit provision with abandon over the years. There's no evidence that this trend is going to cease anytime soon, so it's likely that action agencies will frequently have to defend their decision not to consult with FWS or NMFS in a court of law before a project really gets going.

Second, and a point Guynup conveniently fails to mention, nothing within the proposed regulations prevents FWS or NMFS from demanding that other agencies consult with them over proposed actions. The fact of the matter is that for all this talk from Guynup and others that the proposed regulations would "dismantle" the Endangered Species Act, that simply is not and cannot be the case. The Endangered Species Act is one this country's most powerful laws–only an act of Congress could truly dismantle (or reform) the ESA. The proposed Section 7 regulations simply clarify federal agencies' ESA obligations in limited circumstances and do nothing to limit the ESA enforcement powers of FWS, NMFS, or the public-at-large.

In other words, don't believe the hype: the Bush Administration's proposals will leave the most powerful Endangered Species Act mechanisms untouched and come nowhere close to a "decimation" of wildlife.

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