Liveblogging the Secretary of the Interior's Announcement of Final Endangered Species Act Regulatory Changes

I'm listening to the Secretary of the Interior Kempthorne's press conference on the Bush Administration's last minute changes to the Endangered Species Act (and boy are they last minute!) and, despite several protestations to the contrary, they sound largely unchanged from the draft proposal put out for public comment in August. Considering that the Administration spent literally seconds reviewing each of the over 200,000 public comments it received on the rule changes, that shouldn't come as much of a surprise.

A few more quick reactions to the press conference (Dirk Kempthorne, Assistant Secretary Lyle Laverty, and Director of the U.S. Fish and Wildlife Service Dale Hall spoke):

  • Although Secretary Kempthorne began his opening statement by saying that today's regulatory changes were largely prompted by the listing of the polar bear as a threatened species--and were primarily intended to exclude global warming pollution from the Act's requirements--they clearly go far, far beyond that.  Indeed, he gave several examples of activities ranging from replacing stream culverts to noise pollution that would also be excluded by the new rules.  Along the same lines, both Secretary Kempthorne and Assistant Secretary Laverty said several times that the regulations had been "narrowed" since they were initially proposed, but didn't actually provide any examples of how that was accomplished.  Certainly nothing I heard made me think they had narrowed the regulations to any significant degree.
  • Director Hall stated a number of times that the Endangered Species Act can't be used to regulate global warming pollution because to do so would requires the Fish and Wildlife Service to be able to trace a global warming pollution from a specific point, track that pollution around the globe, and then show those particular gases "caused this ice to melt."  This is simply not what the law requires any more than the Clean Water Act or the Clean Air Act requires the government to show that a particular power plant caused a particular person to get cancer.  Among other things, in making this argument, Director Hall discussed the language and structure of Section 9 of the Endangered Species Act, which prohibits the "take" of listed species, but today's regulations concern an entirely different provision of the statute (Section 7), which is structured differently.  More to the point: if the Endangered Species Act already doesn't allow the Fish and Wildlife Service to regulate global warming pollution why were these regulatory changes necessary?
  • Assistant Secretary Laverty repeatedly emphasized that nothing in the regulations prohibit federal agencies from voluntarily consulting with the Fish and Wildlife Service over their activities.  This, of course, is entirely beside the point.  What the regulations do is remove the obligation of agencies to consult with the Service in many circumstances.  And without that obligation, there is no reason to expect that agency officials will voluntarily submit themselves to a process that could potentially delay, or require modifications to, their projects.