(Posted 8/18/08)
Even as the public eye is focused on the presidential candidates, the current administration is still working hard to reshape government in its own image before it loses its lease on the White House. No more stunning example of the mischief it hopes to wreak before the end of the Bush term exists than the proposed changes in rules for administering the Endangered Species Act.
And while the regulations have been denounced by many mainland environmental and conservation organizations, their criticisms have not touched on the special threat that the regulations pose for Hawai`i, says David Henkin, an attorney in the Honolulu office of Earthjustice.
Even as the public eye is focused on the presidential candidates, the current administration is still working hard to reshape government in its own image before it loses its lease on the White House. No more stunning example of the mischief it hopes to wreak before the end of the Bush term exists than the proposed changes in rules for administering the Endangered Species Act.
And while the regulations have been denounced by many mainland environmental and conservation organizations, their criticisms have not touched on the special threat that the regulations pose for Hawai`i, says David Henkin, an attorney in the Honolulu office of Earthjustice.
The draft regulations were published in the Federal Register of August 15 (Vol. 73, No. 159). Described as promoting “Interagency Cooperation Under the Endangered Species Act,” the proposed changes severely limit the power of the two principal federal agencies charged with enforcing the act – the National Marine Fisheries Service (under the Department of Commerce) and the Fish and Wildlife Service (under the Department of the Interior) – and put agencies proposing actions that could harm endangered or threatened species in the driver’s seat when it comes to deciding whether they have sufficiently accounted for and mitigated any harm their proposed actions will entail.
Interior Secretary Dirk Kempthorne calls the draft rules “common sense modifications … to provide greater clarity and certainty to the consultation process.” According to the summary that appears in the Federal Register, the regulations allow “for action agencies to determine the effects of their own actions, without concurrence from the Service[s], in some very specific narrow situations.”
’Horrible’ for Plants
According to Henkin, the Earthjustice attorney, the draft regulations are particularly horrible for Hawai`i, in ways that mainland environmental organizations, concerned with “charismatic megafauna,” have overlooked.
“Hawai`i is home to more than 300 federally listed endangered plants,” he said. “What these regulations say is, in order for an agency not to have to consult at all – not even call up the Fish and Wildlife Service for an informal consultation – all they have to say is they don’t anticipate any ‘take’ to result from the action.”
“ ‘Take’ is a term of art,” he explained. “You can only ‘take’ fish and wildlife, not plants. Even if you are bulldozing over listed plants, that’s not a ‘take.’”
“The rules are horrible for animals. But they’re even worse for plants. And here in Hawai`i, plants, the building blocks for ecosystems, will just be knocked out one by one.”
Goodbye to Avoidance of Harm
Another dramatic change is the way in which the proposed regulations attempt to get rid of the principle of avoiding harm, Henkin says. “If a species is headed for extinction anyhow, then the agency action doesn’t actually cause the extinction, so it can go forward,” he says. As an example, Henkin cites the case of the interactions between longline fishing vessels and critically endangered leatherback turtles: “If Japanese and Korean fishing fleets are continuing to hook them, then under the proposed regulations we can allow the U.S. fleet to hook as many as they want since the leatherbacks are going to go extinct anyway.”
This flies in the face of rulings in the 9th U.S. Circuit Court, Henkin noted, which holds that “if you can demonstrate an action will make a bad situation worse for a listed species, then you’re jeopardizing it. But under the proposed rules you just throw your hands up and go, ‘oh, well, too bad.’”
Adieu to the Precautionary Principle
Under the so-called precautionary principle, if an action is suspected of causing harm even though the specific way in which it harms a species isn’t known, you still avoid or mitigate in order to minimize harm. Or, as Henkin says, “If you’re not sure it’s safe, you should hold off.”
Take, for example, the federal litigation now ongoing over the Navy’s use of mid-range sonar in submarine exercises around Hawai`i. Under the proposed regulations, the harm to whales has to be “reasonably certain to occur,” with “clear and substantial information” that the effect will happen. Past evidence of apparent harm has been the stranding of whales occurring coincidentally with Navy exercises, but until there is unequivocal proof of the link between the strandings and the exercises, the Navy will be off the hook under the new regulations. “The Navy would simply say its activities won’t result in a take,” Henkin says. “And there would be no consultation over Navy training” with the NMFS.
The “parade of horribles,” as Henkin calls it, goes on and on. For example, the draft regulations ban agencies from considering any impact resulting from the emission of greenhouse gases. It allows informal consultations to conclude without an agency obtaining the “concurrence” of the Fish and Wildlife Service or NMFS. The definition of “cumulative effects” is severely watered down.
Henkin notes that the regulations go way beyond what is allowed in the Endangered Species Act itself. For example, in explaining the reason for the changes, Lyle Laverty, assistant secretary for Fish and Wildlife and Parks at the Department of Interior, writes: “The services believe that federal action agencies are fully qualified to make [‘not likely to adversely affect’] determinations,’ given the “decades of experience” that the agencies have had dealing with Section 7 of the ESA. “In light of the tremendous workload and consumption of resources that consultations require, the Services believe it is not an efficient use of limited resources to review literally thousands of proposed federal agency actions in which take is not anticipated…”
“Tell it to Congress,” Henkin says. “You don’t just pass regulations saying we’re tired of this and we’re not going to do it anymore. That’s really absurd.”
If the regulations are adopted, he anticipates there will be court challenges to them. “There have been challenges to regulations that propose self-regulation. The courts have already struck down a lot of self-consultation regulations. The statute says clearly, agencies shall take action ‘in consultation with the service.’ You can’t just rewrite consultation to mean ‘not talking to each other.’”
For further reading:
The rules are available online at
http://edocket.access.gpo.gov/2008/pdf/E8-18938.pdf
The deadline for public comment in September 15.
Comments may be mailed 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.
Comments sent by email or fax will not be accepted. Comments will be posted online, however, at http://www.regulations.gov
— Patricia Tummons
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