One other thing... don't forget about NEPA

One other thing it’s worth noting about the Bush Administration’s rush to get its Endangered Species Act rule changes to the White House by early November: it may be illegal.  There are two legal requirements the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (the two agencies formally proposing to change the Endangered Species Act rules) must satisfy before they can finalize its proposed regulations.

First, FWS and NMFS must analyze the proposed rule under the National Environmental Policy Act.  NEPA has been called the magna carta of the environmental movement.  It requires that federal agencies to prepare an “Environmental Impact Statement” or “EIS,” for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C).  Producing an EIS is an involved process, one that requires a federal agency to take a “hard look” at the environmental effects of its activities before it decides to take them.  The changes the Bush Administration is contemplating here--a fundamental shift in some of the Endangered Species Act’s most basic procedures--is certainly “significant.”  But it’s hard to see how an EIS for these changes could be drafted and, as is also required, published for public comment and finalized, before November.

Second, in addition to its NEPA obligations, both FWS and NMFS must undergo “internal” Endangered Species Act consultations before the rules can be finalized.  Under Section 7 of the Act, anytime an agency concludes that its actions “may effect” protected species, it has to consult with either FWS or NMFS (depending on the species at issue).  The Section 7 Consultation Handbook, issued jointly by FWS and NMFS, explicitly directs the agencies to conduct intra-Service (that is, internal) consultations before issuing new regulations. According to the Consultation Handbook, for example, all FWS subunits must “consult or confer with the appropriate FWS Ecological Services field office on actions they authorize, fund, or carry out that may affect listed, proposed or candidate species or designated or proposed critical habitat.” U.S. Fish & Wildlife Serv. & Nat’l Marine Fisheries Serv., Endangered Species Consultation Handbook (1998) at 1-5.  Here, that means that before the proposed regulations can be finalized, both NMFS and FWS must prepare formal “biological opinions” analyzing the proposed rule’s affect on the ability of listed species to survive and recover.  Again, this is an involved process that requires careful, objective, analysis.  It’s difficult to see how it could be accomplished within the next several weeks.