Obama Suspends Bush Regulations that Weakened Endangered Species Act

big catUpdate Mar. 3, 2009: President Barack Obama has suspended these rule changes, declaring his administration has "restored the scientific process to its rightful place at the heart of the Endangered Species Act, a process undermined by past administrations." 

For more on these Bush Administration regulations that are now under review, read Animal Law Coalition’s earlier reports below.

Update Dec. 17, 2008: The Bush administration has adopted the sweeping rule changes that will weaken the Endangered Species Act of 1973, 16 U.S.C. §1531 et seq.

The rules take effect before President George W. Bush leaves office which means to undo the changes, incoming President Barack Obama’s administration must re-open the rule-making process. President-elect Obama has vowed to take steps to undo these changes.

For more on the changes, read Animal Law Coalition’s original report below.   

Original report: In the waning hours of the Bush administration the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) have proposed changes to regulations that will weaken the Endangered Species Act of 1973, 16 U.S.C. §1531 et seq.

The Center for Biological Diversity has said the new regulations will:

– Exempt thousands of federal activities from review under the Endangered Species Act;
– Eliminate checks and balances of independent oversight;
– Limit which effects can be considered harmful;
– Prevent consideration of a project’s contribution to global warming; 
– Set an inadequate 60-day deadline for wildlife experts to evaluate a project in the instances when they are invited to participate — or else the project gets an automatic green light;
– Enable large-scale projects to go unreviewed by dividing them into hundreds of small projects.

The ESA requires federal agencies to consult with FWS or NMFS for actions that may have an effect on protected species or critical habitat. 50 CFR 402.14(a)  Under the new regulations "agencies [will not be]…required to consult on those actions … which they determine …will have `no effect’ on listed species or critical habitat" or which are so "inconsequential, uncertain, unlikely or beneficial" including "insignificant contributor[s] to any effect on listed species or critical habitat." The new regulations would also eliminate a requirement to consult on "those effects of an action that are not capable of being meaningfully identified or detected in a manner that permits evaluation…. or, are such that the potential risk of jeopardy to the listed species is remote." 50 CFR 402.03

The new regulations would also require agencies to disclose for consultation only those parts of their projects that they believe have enough of an effect that disclosure is required. 50 CFR 402.03

To limit the consultation requirement on the basis of these criteria, FWS and NMFS propose that consultation is required only if the agency undertaking the project makes a determination it is "not likely to adversely affect" listed species or critical habitat. 73 Fed. Register 47868-47871   50 CFR 404.14 

The fox in charge of the hen house.

FWS and NMFS have said the proposed changes will "reinforce [their] current view that there is no requirement to consult on greenhouse gas (GHG) emissions’ contribution to global warming and its associated impacts on listed species (e.g., polar bears).

"For example, when a Federal agency provides funding for a new highway, vehicle use of the highway may result in changes in GHG emissions. The proposed revisions make explicit that while the impact of tailpipe emissions on local air pollution could be an effect of the action, the GHG emissions’ contribution to global warming and associated impacts to listed species (e.g., polar bears) are not, and the effects of those impacts would not need to be considered in any consultation." 73 Fed. Register 47872

Spotted owlHere is the reasoning:

First, GHG emissions from building one highway are not an `essential cause’ of any impacts associated with global warming. Moreover, any such effects are later in time, but are not reasonably certain to occur (i.e., a finding that an effect is reasonably certain to occur must be based on clear and substantial information, cannot be speculative, and must be more than just likely to occur).

For both reasons, impacts associated with global warming do not constitute `effects of the action’ under the proposed revision to that definition. See proposed 50 CFR 402.02, 402.03(b)(1), (c).

Even if these impacts would otherwise fall within the definition of `effects of the action’, they need not be considered in any consultation because under the proposed Applicability section the building of one highway is `an insignificant contributor’ to any such impacts.

Further, any impacts associated with the GHG emissions from the building of one highway are `not capable of being meaningfully identified or detected in a manner that permits evaluation’ and `are such that the potential risk of jeopardy to the listed species or adverse modification or destruction of the critical habitat [from those GHG emissions] is remote.’ See proposed 50 CFR 402.03(b)(2)-(3),(c)." 73 Fed. Register 47872

FWS and NMFS propose also to amend the provision for optional informal consultation under Section 402.13 by also allowing agencies to present only part of the project. 73 Fed. Register 47872

FWS and NMFS would also "allow …agencies to terminate consultation if the Service has not acted on its request … within 60 days" unless FWS or NMFS requests more time but even then no more than an additional 60 days is allowed. …"[FWS and NMFS]… propose[s] to allow the … agency to terminate the consultation, with written notice …, if there is no written determination from the Service within the appropriate time frame." 73 Fed. Register 47872 50 CFR 404.13

So much for the point of ESA which is to protect listed species and critical habitat. These regulations make the projects of federal agencies the priority whether it is drilling for oil and gas, building highways, bridges, and power plants; or other development.

Click here for a copy of the proposed rule changes.


There is not much time to defeat these regulations. The FWS and NMFS must receive your objections by September 15, 2008. The Center for Biological Diversity has prepared this form letter you may sign and email.

Or, if you would prefer to send your own letter:

Submit your comments or materials concerning this proposed rule in one of the following ways:

    (1) Through the Federal eRulemaking Portal at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.

Follow the instructions on the Web site for submitting comments.

    (2) By U.S. mail or hand-delivery to Public Comment Processing, Attention: 1018-AT50, Division of Policy and Directives Management, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Suite 222, Arlington, VA 22203.

    They will not accept e-mail or faxes. They will post all comments on http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov. This generally means that they will post any personal information you provide them.  

FOR FURTHER INFORMATION CONTACT: Office of the Assistant Secretary for Fish and Wildlife and Parks, 1849 C Street, NW., Washington, DC 20240; telephone: 202-208-4416; or James H. Lecky, Director, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910; telephone: 301-713-2332.