April 21, 2009

the return of Section 7 hypberbole

By Damien M. Schiff Senior Attorney

We're getting closer to the May 9 deadline for President Obama to reverse the Bush administration's regulatory changes to Section 7 consultation. Not surprisingly, environmental advocates are attacking these changes based not on substance, but on the mere fact that President Bush signed them into law. Here is the Center for Biological Diversity's Randy Serraglio in today's Arizona Daily Star:

But neither should it surprise anyone — considering the mess we are in now and his vast unpopularity — to learn that one of President George W. Bush's final actions before leaving the White House last fall was to take a damaging swipe at [the Endangered Species Act] by imposing new rules that significantly weaken it.
 
One of the fundamental facets of the act is consultation, whereby federal agencies are required to ask the U.S. Fish and Wildlife Service to weigh in on proposed federal actions whenever they might cause harm to endangered species. Using the best available science, Fish and Wildlife must issue an opinion on the expected impacts to the species, which often results in modifications to the proposed action and mitigation and other steps to protect the species.
 
President Bush thought it would be a good idea to remove this requirement and allow federal agencies to oversee themselves on endangered-species matters.
That's a fairly incomplete (if not dishonest) picture. By no means do the regulatory changes remove Section 7 consultation. Rather, they allow federal agencies to avoid consultation in narrow circumstances — when the agency's action will have a marginal or beneficial impact on endangered species. Even in those circumstances, the U.S. Fish and Wildlife Service will still be able to demand consultation if it so desires.  In other words, under the changes, the Service will be able to oversee other federal agencies and how they deal with endangered species issues, just as they have done without the regs in place.  The only difference now is that agencies can go forward without consultation when everyone (including the Service) knows such consultation would be nothing more than regulatory overkill.

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