WASHINGTON, D.C. – Sen. John Kerry (D – MA), along with thirteen other Senators, yesterday sent a letter to the Bush Administration condemning their attempt to weaken Endangered Species Act (ESA) regulations.

The revision, which Interior Secretary Dick Kempthorne described as a “narrow regulatory change,” would eliminate the requirement for independent scientific review of federal agency actions that could harm endangered plants and animals.

“These proposed changes undermine the Endangered Species Act which has been one of the most successful environmental laws in our nation’s history,” said Sen. Kerry. “This administration has had a consistently deplorable record of opposing environmental protections. We can’t allow President Bush to do any more damage on his way out the door.”

The letter was cosigned by Sens. Barbara Boxer (D – CA), Chair of the Committee on Environment and Public Works, Barbara Mikulski (D – MD), Ben Cardin (D – MD), Robert Menendez (D – NJ), Patty Murray (D – WA), Russ Feingold (D – WI), Chris Dodd (D – CT), Daniel Akaka (D – HI), Bernie Sanders (I – VT), Patrick Leahy (D-VT), Sheldon Whitehouse (D- RI), Bill Nelson (D – FL), and Dick Durbin (D – IL).

“If adopted, these changes would seriously weaken the safety net of habitat protections that we have relied upon to protect and recover endangered fish, wildlife and plants for the past 35 years,” the senators wrote in the letter. “We urge you to withdraw the proposal.”

The full text of the letter is below:

October 14, 2008
The Honorable Dirk Kempthome Secretary
U.S. Department of the Interior 1849 C Street, NW Washington, DC 20240 

Dear Secretary Kempthome: 

We strongly oppose the proposed changes to the Endangered Species Act (ESA) that appeared in the Federal Register on August 15, 2008. In spite of your assurances that this proposal is a "narrow regulatory change," the potential impact of this change would be both broad and profound. If adopted, these changes would seriously weaken the safety net of habitat protections that we have relied upon to protect and recover endangered fish, wildlife and plants for the past 35 years. We urge you to withdraw the proposal. 

The existing ESA Section 7 consultation process prescribes a clear and appropriate role for the expert Fish and Wildlife Service and National Marine Fisheries Service (Services) in advising other federal agencies on the impact of agency projects on endangered species and habitat. In apparent contradiction to the statute, the new proposal weakens the role of the Services and would allow other federal agencies to independently determine whether their actions will jeopardize a listed species or result in damage to critical habitat. This level of agency discretion is not authorized under Section 7 of the ESA.

While the proposal claims that other agencies have the capacity and expertise to make these determinations, the Services have frequently overridden determinations by other agencies that the impacts of their actions will be benign. For example, earlier this summer, NMFS found "overwhelming evidence" that three agricultural pesticides are increasing the likelihood of extinction for 28 different threatened and endangered salmon stocks. This finding directly contradicted the Environmental Protection Agency's original determination of no threat to protected salmon stocks. 

We strongly believe that the necessary expertise to evaluate the impact of federal actions on endangered species and habitat lies exclusively with the Services, and the delegation of their function is contrary to the letter and spirit of the ESA.

The proposal also redefines several key terms regarding Section 7 consultations. These new definitions would allow federal agencies to limit the scope of consultations or avoid them entirely. The changes to the term "indirect effects" are of particular concern. The proposal amends the definition of "indirect effects" by requiring that a given action must be an "essential cause" of those indirect effects in order to merit a consultation. This notion has repeatedly been rejected by the federal courts. Rather than allowing a federal agency to impose additional threats on an already-at-risk species, the Endangered Species Act stipulates that agencies have an affirmative obligation to protect and conserve species. Additional changes to the "indirect effects" definition - including the creation of the new legal standard of "clear and substantial information" - further minimize the likelihood that an agency would be required to seek consultation with the Services.
In shifting the burden of analysis away from the Services, the proposal would allow more agency actions to escape the scrutiny of the formal consultation process. This heightens the importance of the informal consultation process, which currently provides an efficient means of limiting unnecessary evaluation when an agency determines that its actions "are found not likely to adversely affect a listed species or critical habitat." However, this proposal makes additional, problematic changes to the informal consultation process. It allows an agency to perform a single informal consultation for related projects, or for segments of a given project. The agency would have the discretion to determine what projects are similar, or to segment a project to obfuscate the scope of an agency action and prevent consideration of its full effect. 

Furthermore, the proposal establishes a new 60-day deadline for the Services to respond and approve or disapprove an agency's decision that there is no adverse impact and therefore no formal consultation is required. If this deadline is not met, the project would be permitted to proceed regardless of its impact on listed species. In light of GAO's 2004 finding that the Services suffer from significant staff vacancies, this time limit could allow projects that may pose jeopardy to move forward by default. 

Quite simply, this proposal seeks to short-cut a full and complete evaluation at every stage of the assessment process, deliberately undermining the essential purpose of the ESA. 

As a final note, the regulation explicitly states its intent to foreclose the consideration of climate change impacts on species. Given that polar bears, seals and other species dependent on sea ice already are imperiled by the impacts of climate change, the federal government will need a full suite of policy options to conserve and protect these species and their habitat. We should not arbitrarily limit our use of these tools without first evaluating the implications for our ability to address and respond to the full range of climate change impacts.

The ESA is a landmark conservation law that has provided critical protections for species on the brink of extinction for over thirty years. This proposal makes a sweeping set of changes that would serve to undermine the goals and functions of the ESA. We strongly urge you to withdraw this flawed proposal.

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