Friday, September 30, 2005
Court Orders New Biological Opinion on Columbia River Salmon
Judge James Redden gave NOAA Fisheries one year to complete a new biological opinion on operation of the federal Columbia River hydropower system. While the biop is completed, the 2004 Biological Opinion will stay in effect. The federal government had asked for no remand pending appeal or an open-ended remand or at least two years in which to develop the new biop. The government hopes to coordinate any changes in the hydropower system with the recovery planning process addressing all aspects of salmon recovery -- and likely will appeal Redden's remand order.
September 30, 2005 in Biodiversity, Cases, Governance/Management, Law, Sustainability, US | Permalink | Comments (0) | TrackBack (0)
GAO testimony about Lake Pontchartrain project
Here is some useful testimony by GAO providing background on the Army Corps project regarding Lake Pontchartrain.GAO testimony
September 30, 2005 | Permalink | TrackBack (0)
Thursday, September 29, 2005
Arctic Changes
The arctic is said to be the canary in the coal mine regarding climate change. And times they are a changing! Arctic climate change - Planet Ark
September 29, 2005 in Climate Change | Permalink | TrackBack (0)
Recent Economic Literature: Carbon Taxes Anyone???
Gilbert Metcalf of the Tufts University Economic Department suggests that a carbon tax could used to fund corporate tax reform (such as eliminating double taxation on corporate income). His study finds that such an environmental tax could be designed to have relatively small impacts on affected industries. Tax Reform and Environmental Taxation
September 29, 2005 in Governance/Management | Permalink | Comments (0) | TrackBack (0)
Road Salt Will Kill
Science highlights Kaushal's study on road salt, published in
Proc. Natl. Acad. Sci. U.S.A. 102, 13517 (2005):
"Fresh water is one of the most important resources and is vital for humans, agriculture, and natural ecosystems. There are many threats to the supply of this commodity, including climate change; pollution by industrial, agricultural, and automotive wastes; and overuse. Kaushal et al.add another: road salt. Road salt is used liberally in areas of the northeastern United States that receive appreciable amounts of snow, and the runoff into urban and suburban watersheds is a growing threat to fresh water reserves. By measuring the concentration of chloride in streams in Maryland, New York, and New Hampshire during winters, the authors show that salinities are approaching 25% that of seawater in some cases and are greater than 100 times that ofpristine forest streams during summers. Watersheds where roads are densest are under severe pressure. If salinity in these regions continues to increase, surface water supplies in the Northeast may become unfit for human consumption and toxic to freshwater organisms by the end of the century."
September 29, 2005 in Water Quality | Permalink | TrackBack (0)
Endangered Species Legislation
Science today provided a quick 3 page brief on problems that have arisen in implementing the ESA and the pending TESRA legislation. A great start for those of you introducing the ESA and pending legislation. Science news analysis
September 29, 2005 in Biodiversity, Governance/Management, Legislation, Physical Science, Sustainability, US | Permalink | TrackBack (0)
Fisheries bill inadequate
Science, Vol 309, Issue 5744, 2146-2147 , 30 September 2005 10.1126/science.309.5744.2146a]
Carolyn Gramling in Science notes that the pending fisheries management reauthorization bill would set a 2-year deadline for halting catches of species clearly identified as overfished, permit regional fisheries councils to consider a whole-ecosystem approach to management, and create opportunities for scientists to become more involved in fisheries decision-making. Critics note that the bill does not advance ecosystem management of the ocean, does not require authorities to use the scientific advice they are offered, andl actually relaxes the existing mandate that overfished stocks be off-limits and allowed to rebuild for 10 years. Fisheries Management Reauthorization
September 29, 2005 in Biodiversity, Legislation, Physical Science, Sustainability, US | Permalink | Comments (0) | TrackBack (0)
House Passes TESRA
House Resources press release:
For Immediate Release: House Passes Historic Endangered Threatened and
Endangered Species Recovery Act passes by a vote of 229-193 Born of the best intentions, the ESA has failed to recover endangered species while conflict and litigation have plagued local communities and private property owners alike. TESRA fixes the long-outstanding problems of the Endangered Species Act by (1) focusing on species recovery (2) providing incentives (3) increasing openness and accountability (4) strengthening scientific standards (5) creating bigger roles for state and local governments (6) protecting private property owners and (7) eliminating dysfunctional critical habitat designations. "During
debate, the entire House of Representatives seemed to agree the ESA is in
need of updates and improvements," Chairman Pombo said.
"It's incredible how far we have come. But what surprised me most
today was the strong ideological differences about whether or not homeowners
should be compensated when their property is taken, as the Fifth Amendment of
the Constitution requires. Upholding this right and partnering with the
landowner is the only way we are going to improve the ESA's failing
results for recovery. This legislation does just that." |
September 29, 2005 in Biodiversity, Governance/Management, Legislation, US | Permalink | Comments (0) | TrackBack (0)
New Book Note - Making Law Work
Making
Law Work: Environmental Compliance & Sustainable Development
(Cameron May, 2005).
Making Law Work is a two-volume compilation of ideas, research, scholarship, and resources relevant to environmental compliance and enforcement -- required reading for anyone committed to improving environmental governance and making sustainable development a reality.
Making
Law Work also three exciting and
empowering developments in environmental governance and sustainable development:
the development of indicators; the rise of transgovernmental networks; and the
“Porter hypothesis” demonstrating that compliance often can be
profitable.
<>
Making
Law Work bridges the divide between theory
and practice and between scholar and practitioner, drawing on expertise from a
variety of fields to produce a ground-breaking resource. Klaus Toepfer, the
United Nations Environment Programme Executive Director, praises the book’s
“empowering ideas for action.”
Making
Law Work identifies emerging trends and new concepts, such as:
- Analyzing
the complex
interrelationships among concepts of compliance, rule of law, good
governance, and sustainable development;
- Developing
transgovernmental networks,
an emerging form of global governance that allows regulators to share experiences
and innovative strategies
with colleagues from across the world;
- Using data-driven
systems and indicators
to instill greater empirical rigor
in monitoring regulated entities and pursuing enforcement
actions;
- Incorporating the “Porter
Hypothesis” in regulatory regimes, which allows industries to save money
and even increase
profits through “innovation offsets;”
- <>
Applying theories that explain the motivations behind individual and firm-wide decisions to comply (or not comply) with environmental laws in order to craft more effective and efficient regulatory regimes;
<>
Making
Law Work incorporates original
articles by leading
practitioners, including: K. Madhava Sarma, the former head of the
Montreal Protocol Secretariat; Elizabeth Mrema and Carl Bruch of UNEP; Romina
Picolotti, founder of the Center for Human Rights & Environment in
Argentina; and David Hunter of American University’s
Washington College of Law.
September 29, 2005 in Governance/Management, International, Law, Sustainability | Permalink | Comments (0) | TrackBack (0)
Europe: ivory market killing elephants
The strong ivory market in Europe, along with poor enforcement of trade restrictions, fuels illegal poaching of African elephants. Link: BBC NEWS: Europe is 'fuelling ivory trade'.
September 29, 2005 in Biodiversity | Permalink | Comments (0) | TrackBack (0)
The Science of Global Warming: Artic Ice Disappearing Quickly
Artic ice cover is the smallest in more than a century. BBC NEWS'.
September 29, 2005 in Climate Change | Permalink | Comments (0) | TrackBack (0)
Tuesday, September 27, 2005
FIRE!!! TESRA: Threatening Endangered Species Recovery Act (the typographical "error" is mine)
The House resources committee reported the Threatening the Endangered Species Recovery Act aka Threatened or Endangered Species Recovery Act (TESRA) last week TESRA - House bill after mark-up. Committee markup The resources committee site also has an updated summary and analysis Summary and Analysis as well as an updated section-by-section analysis Section-by-section Analysis and has collected data in an unofficial implementation report. House Republican Implementation Report The House will vote this week.
Here are some of the opposing arguments:
National Environmental Trust - Assault on the ESA NET Report
Earthjustice Fact Sheet
Updated NWF Analysis:
September 23,
2005
TO: Conservation Colleagues
FROM: John Kostyack
Senior Counsel, National Wildlife
Federation
202-797-6879, kostyack@nwf.org
RE: H.R. 3824, Rep. Pombo’s “Threatened
and Endangered Species Recovery Act” (as approved by House Resources Committee)
The Endangered Species Act bill introduced Monday by Rep. Richard Pombo (R-CA), and as amended and approved yesterday by the House Resources Committee, would drastically scale back this nation’s commitment to conserving its endangered wildlife and habitats for future generations. The harmful bill is reportedly on a fast track for a vote by the full House of Representatives in approximately five days. This memo explains some of its most damaging provisions.
- Protections Against Hazardous Pesticides Would be Repealed
A key provision of the bill, inserted by the Committee with
virtually no discussion or debate, would repeal all Endangered Species Act
provisions that protect threatened and endangered species from the harmful
impact of pesticides. Pesticides played
a major contributing role in the decline of our nation’s symbol, the American
bald eagle, in the mid-20th century and are currently implicated in
the decline of an array of species ranging from sea turtles to amphibians to
Pacific salmon. Thanks to Endangered
Species Act protections, riparian buffers are being established in the Pacific
Northwest
- Pombo’s
Choice: Unfettered Habitat
Destruction or Big Payoffs to Developers
In two deceptively-worded sections (“Written Determination of Compliance,” and “Eligibility for Aid”), the Pombo bill would force wildlife agencies to choose between abandoning enforcement of the Endangered Species Act’s prohibition against taking endangered species - the provision that has given rise to collaborative habitat conservation planning across the country – or writing large checks to pay developers to comply with the law.
Although conservation and industry groups widely support providing incentives funding for landowners to carry out voluntary conservation measures, this bill ignores this opportunity for consensus legislation. Instead, the Pombo bill promotes a developer entitlement scheme that would make the Endangered Species Act’s “safety net” of protections unworkable.
The Pombo bill would eliminate the careful review of environmentally harmful projects by the U.S. Fish and Wildlife Service and National Marine Fisheries Service (“Services”) currently carried out under the Endangered Species Act. Under the bill, the Services must accept the developer’s characterization of the project’s impacts and may not demand additional information from the developer.
If one of the Services is unable to determine based on this limited information whether the project would violate the Endangered Species Act, the project automatically goes forward. Large tracts of habitat could be destroyed without any offsetting conservation measures, potentially putting endangered wildlife species on an irreversible path toward extinction.
If the Service determines that the project would violate the Endangered Species Act and seeks to protect some of the affected habitat, the Service would then become obligated to pay the developer for any foregone profits. Thus, for example, if the Service allows a subdivision to be built on all of a 2,000-acre tract except a 10-acre riparian habitat area used by an endangered toad, the developer would be entitled to a federal government check for any profits not earned on the last 10 acres - even if the overall project is highly profitable.
This payoff is misleadingly characterized in Pombo’s bill as a “grant” program. In fact, it is a legal entitlement given to developers regardless of financial need or conservation merit. In fact, unlike typical grant programs, a developer who receives a check under this program makes no commitment to manage land for conservation purposes in return.
The impact of Pombo’s bill on wildlife agency budgets would be devastating. Even after the Service’s available funds have been depleted due to developer payoffs, the Service would remain legally obligated to pay the remainder of any pending developer claims. Already struggling with anemic budgets, wildlife agencies would be thoroughly hamstrung by this new budgetary obligation.
Rep. Pombo has not provided any estimate of the impact of his bill on the taxpayer, but it could be substantial. The Office of Management and Budget (OMB) estimated that the direct spending costs of the 1995 House-passed ESA and wetlands “takings” bill would be $28 billion over seven years. This estimate was very conservative because, as then-OMB Director Rivlin testified, it did not include claims from unscrupulous developers who would “game the system,” purposefully bringing themselves within the regulatory scheme so that they could set up a claim for automatic payment.
If the Pombo bill’s provisions requiring payoffs to developers were to become law, it would establish a precedent that could be used to weaken a vast array of other health, safety and environmental protections and programs.
- Wildlife Agency Reviews of Federal Actions Would Be Bypassed
Perhaps the most important “safety net” provision of the Endangered Species Act is the requirement that all federal agencies consult with the Service concerning the harmful impacts of their actions on threatened and endangered species. This provision ensures that federal agencies “look before they leap” into projects that may irreparably damage valuable habitats and determine, with the expert advice of the Service, whether their projects will cause “jeopardy” to a threatened or endangered species or “adversely modify” its critical habitat. See ESA § 7(a)(2); see also Parts 3 and 4 below. This provision encourages federal agencies, industry groups and other stakeholders to develop collaborative solutions that address both conservation and development needs. For example, it is through the consultation process that the Service and other stakeholders address the needs of both endangered fish and agricultural water users in Rep. Pombo’s district.
The Pombo bill allows federal agencies and industry groups
to bypass this carefully-developed set of consultation rules and expedite federal
projects that harm wildlife. According
to the bill, the Secretary of Interior or Commerce may identify entire
categories of federal actions that would satisfy the Endangered Species Act
simply by complying with unspecified “alternative procedures.” The bill imposes no minimum standards for
these alternative procedures, thus allowing a potentially vast array of
destructive federal activities to evade the normal wildlife agency reviews and
to go forward quickly without any significant offsetting conservation measures.
- Critical Habitat Protection Would Be Eliminated
Of all the Endangered Species Act’s provisions, only the
critical habitat feature makes it absolutely clear that federal actions cannot
destroy habitat needed for endangered species recovery. Although other provisions of the Act protect
some habitat, they have been interpreted as not protecting all of the habitat
needed for recovery. The Act’s critical
habitat feature has helped with the turnaround of a host of endangered species. An example is the whooping crane, which was
threatened by federal dam projects along the Platte River Nebraska
To justify this repeal, Rep. Pombo claims that he has replaced critical habitat with a better habitat protection tool, set forth in the bill’s recovery plan provisions. However, the Pombo bill merely states that recovery plans must identify areas of “special value” to the conservation of the species. Unlike the Act’s current critical habitat feature, the Pombo bill does not require that recovery plans identify the habitats needed for conservation (i.e., recovery) of the species. There is no definition of “special value.” Thus, only a subset of the important habitats – those that do not stand in the way of powerful developers – may be deemed special enough to warrant designation in the recovery plan. The Pombo bill assigns the task of developing recovery plans to industry-dominated “recovery teams” who are not likely to agree to a broad definition of “special value” habitats.
The Pombo bill also fails to require completion of recovery plans for the hundreds of listed species that currently lack them. (In contrast, the bill imposes a 3-year deadline for completing recovery plans for species to be listed in the future.) Although the Secretary of Interior or Commerce must develop a “tentative schedule” to develop recovery plans for those already-listed species, they are only required to follow the schedule “to the maximum extent practicable.” In the absence of any mandate to complete a recovery plan for these species, it is difficult to see how habitats of “special value” will be identified in a timely way.
The Pombo bill also falls short in protecting habitat needed for recovery because it does not actually protect the habitat areas to be identified in the recovery plans. Under the current Act, federal agencies are precluded from taking any action that “adversely modifies” designated critical habitat. The Pombo bill eliminates the “adverse modification” prohibition and provides no replacement mechanism for protecting habitat areas needed for recovery.
- Protection
Against Jeopardy Would Be Weakened
Another crucial “safety net” protection of the Endangered Species Act is the duty of federal agencies to ensure that their actions do not jeopardize the continued existence of threatened and endangered species. Pombo’s bill would weaken this protection in at least two significant ways.
First, the bill defines “jeopardize the continued existence” as covering only those federal actions that would impede conservation of the species “in the long term.” This new definition would open up a loophole allowing destructive federal projects to go forward unimpeded in and around endangered species habitat, causing immediate and tangible harm to the species, based upon a speculative argument that conservation in the long term is assured. For example, if a federal forest plan allows massive timber harvesting, making streams uninhabitable for endangered salmon, this new jeopardy definition could allow the plan to go forward based solely on its stated goal of long-term forest regeneration – even though the plan lacks any significant conservation measures to address the harmful short-term impacts that put the species at risk of extinction.
Second, the bill would force the Service to put blinders on considering whether a species is in jeopardy of extinction. Under the current Act, in evaluating a federal action’s impact on a species, the Service must consider the “baseline” condition of the species at the time the action would be carried out. Thus, if a host of other projects are also negatively affecting the species, the Service must address the cumulative effects of the projects combined in evaluating whether the species is in trouble. The Pombo bill forbids the Service from taking these baseline conditions into account. It thus requires that the Service ignore reality on the ground and invent a fictional environment where the proposed action is the only current threat to the species’ existence.
- Miscellaneous
Additional Weakening Provisions
The Pombo bill has a host of additional provisions that would make the Endangered Species Act’s goal of species recovery more difficult to accomplish. Among them:
- It calls for new regulations that define “best available science,” allowing the Secretary of Interior to lock in politically-motivated definition of this key term rather than allowing scientists to continue to define it according based on evolving knowledge and information.
- It imposes a new definition of “distinct population segments,” reducing the likelihood that species will be protected at the population level, even when such a proactive measure would be the most effective and least costly conservation strategy.
- It codifies the “no surprises” rule, which limits the ability to reopen permits for incidental take of listed species, without including tools, such as monitoring and adaptive management, that are widely recognized as necessary to rescue species declining toward extinction.
- Habitat destruction is authorized, and consultation duties are waived, for activities carried out pursuant to newly-created state conservation agreements. The bill imposes no mitigation requirements or other minimum standards for these agreements.
- Numerous new bureaucratic hurdles are imposed on the Services, despite the already severe shortage of resources and the likelihood that substantial appropriations increases will not be forthcoming.
Original NWF Analysis:
"September 20, 2005
TO: Conservation Colleagues
FROM: John Kostyack
Senior Counsel, National Wildlife
Federation
RE: H.R. 3824, Rep. Pombo’s “Threatened
and Endangered Species Recovery Act”
The Endangered Species Act bill introduced yesterday by Rep. Richard Pombo (R-CA) would drastically scale back this nation’s commitment to conserving its endangered wildlife and habitats for future generations. This memo explains some of its most damaging provisions in the bill.
<>
1. Pombo’s Choice: Unfettered Habitat Destruction or Big Payoffs to Developers
In two deceptively-worded sections (“Written Determination of Compliance,” pp. 53-55, and “Eligibility for Aid,” pp. 57-58), the Pombo bill would force wildlife agencies to choose between abandoning enforcement of the Endangered Species Act’s prohibition against taking endangered species - the provision that has given rise to collaborative habitat conservation planning across the country – or writing large checks to pay developers to comply with the law.
<>
Although conservation and industry groups widely support providing incentives funding for landowners to carry out voluntary conservation measures, this bill ignores this opportunity for consensus legislation. Instead, the Pombo bill promotes a developer entitlement scheme that would make the Endangered Species Act’s “safety net” of protections unworkable.
<>
The Pombo bill would allow developers to proceed with environmentally harmful projects without carrying out any of the offsetting habitat conservation measures ordinarily required by the Endangered Species Act if federal wildlife agencies are unable to evaluate these projects within a 90 day review period. The bill would force the wildlife agencies -- the U.S. Fish and Wildlife Service and National Marine Fisheries Service (“Services”) -- to accept the developer’s characterization of the project’s impacts and deny them the ability to request additional information from the developer.
Under the bill, if one of the Services is unable to determine within 90 days whether the project would violate the Endangered Species Act, the project would go forward. Large tracts of habitat could be destroyed without any offsetting conservation measures, potentially putting endangered wildlife species on an irreversible path toward extinction.
If the Service determines that the project would violate the Endangered Species Act and seeks to protect some of the affected habitat, the Service would then become obligated to pay the developer for any foregone profits. Thus, for example, if the Service allows a subdivision to be built on all of a 2,000-acre tract except a 10-acre riparian habitat area used by an endangered toad, the developer would be entitled to a federal government check for any profits not earned on the last 10 acres - even if the overall project is highly profitable.
<>
This payoff is misleadingly characterized in Pombo’s bill as a “grant” program. In fact, it is a legal entitlement given to developers regardless of financial need or conservation merit. In fact, unlike typical grant programs, a developer who receives a check under this program makes no commitment to manage land for conservation purposes in return.
<>
The impact of Pombo’s bill on wildlife agency budgets would be devastating. Even after the Service’s available funds have been depleted due to developer payoffs, the Service would remain legally obligated to pay the remainder of any pending developer claims in the next fiscal year. Already struggling with anemic budgets, wildlife agencies would be thoroughly hamstrung by this new budgetary obligation.
<>
Rep. Pombo has not provided any estimate of the impact of his bill on the taxpayer, but it could be substantial. The Office of Management and Budget (OMB) estimated that the direct spending costs of the 1995 House-passed ESA and wetlands “takings” bill would be $28 billion over seven years. This estimate was very conservative because, as then-OMB Director Rivlin testified, it did not include claims from unscrupulous developers who would “game the system,” purposefully bringing themselves within the regulatory scheme with implausible development plans so that they could set up a claim for automatic payment. Pombo’s bill would encourage such gamesmanship, since the Service would be obligated to pay regardless of whether the developer has the financial capacity or government approvals needed to carry out its proposed project.
If the Pombo bill’s provisions requiring payoffs to developers
were to become law, it would establish a precedent that could be used to weaken
a vast array of other health, safety and environmental protections and programs.
- Wildlife Agency Reviews of Federal Actions Would Be Bypassed
Perhaps the most important “safety net” provision of the Endangered Species Act is the requirement that all federal agencies consult with the Service concerning the harmful impacts of their actions on threatened and endangered species. This provision ensures that federal agencies “look before they leap” into projects that may irreparably damage valuable habitats and determine, with the expert advice of the Service, whether their projects will cause “jeopardy” to a threatened or endangered species or “adversely modify” its critical habitat. See ESA § 7(a)(2); see also Parts 3 and 4 below. This provision encourages federal agencies, industry groups and other stakeholders to develop collaborative solutions that address both conservation and development needs. For example, it is through the consultation process that the Service and other stakeholders address the needs of both endangered fish and agricultural water users in Rep. Pombo’s district.
The Pombo bill allows federal agencies and industry groups
to bypass this carefully-developed set of consultation rules and expedite
federal projects that harm wildlife. According
to the bill, the Secretary of Interior or Commerce may identify entire
categories of federal actions that would satisfy the Endangered Species Act
simply by complying with unspecified “alternative procedures.” The bill imposes no minimum standards for
these alternative procedures, thus allowing a potentially vast array of
destructive federal activities to evade the normal wildlife agency reviews and
to go forward quickly without any significant offsetting conservation measures.
- Critical Habitat Protection Would Be Eliminated
Of all the Endangered Species Act’s provisions, only the
critical habitat feature makes it absolutely clear that federal actions cannot
destroy habitat needed for endangered species recovery. Although other provisions of the Act protect
some habitat, they have been interpreted as not protecting all of the habitat
needed for recovery. The Act’s critical
habitat feature has helped with the turnaround of a host of endangered species. An example is the whooping crane, which was
threatened by federal dam projects along the
Platte
River
in
Nebraska
until the critical habitat protection was used to bring about a collaborative solution – a multi-stakeholder conservation trust that has helped acquire over 10,000 acres of riparian habitat while dam operations moved forward. The Pombo bill ignores the crucial role of critical habitat protection, repealing it from the Act altogether (pp. 7-10.)
To justify this repeal, Rep. Pombo claims that he has replaced critical habitat with a better habitat protection tool, set forth in the bill’s recovery plan provisions. However, the Pombo bill merely states that recovery plans must identify areas of “special value” to the conservation of the species (p. 21.) Unlike the Act’s current critical habitat feature, the Pombo bill does not require that recovery plans identify the habitats needed for conservation (i.e., recovery) of the species. There is no definition of “special value.” Thus, only a subset of the important habitats – those that do not stand in the way of powerful developers – may be deemed special enough to warrant designation in the recovery plan. The Pombo bill assigns the task of developing recovery plans to industry-dominated “recovery teams” (pp. 23-24) who are not likely to agree to a broad definition of “special value” habitats.
The Pombo bill also fails to require completion of recovery plans for the hundreds of listed species that currently lack them. (In contrast, the bill imposes a 2-year deadline for completing recovery plans for species to be listed in the future.) Although the Secretary of Interior or Commerce must develop a “tentative schedule” to develop recovery plans for those already-listed species (p. 19), they are only required to follow the schedule “to the maximum extent practicable” (pp. 19-20). In the absence of any mandate to complete a recovery plan for these species, it is difficult to see how habitats of “special value” will be identified in a timely way.
The Pombo bill also falls short in protecting habitat needed for recovery because it does not actually protect the habitat areas to be identified in the recovery plans. Under the current Act, federal agencies are precluded from taking any action that “adversely modifies” designated critical habitat. The Pombo bill eliminates the “adverse modification” prohibition (p. 10) and provides no replacement mechanism for protecting habitat areas needed for recovery. In fact, it states that recovery plans are non-binding (p. 26) and deletes the Act’s current requirement that recovery plans be implemented (p. 16), thus providing a green light for federal agencies to ignore the need to protect habitat areas identified as having “special value.”
- Protection
Against Jeopardy Would Be Weakened
Another crucial “safety net” protection of the Endangered Species Act is the duty of federal agencies to ensure that their actions do not jeopardize the continued existence of threatened and endangered species. Pombo’s bill would weaken this protection in at least two significant ways.
<>
First, the bill defines “jeopardize the continued existence” as covering only those federal actions that would impede conservation of the species “in the long term” (p. 5). This new definition would open up a loophole allowing destructive federal projects to go forward unimpeded in and around endangered species habitat, causing immediate and tangible harm to the species, based upon a speculative argument that conservation in the long term is assured. For example, if a federal forest plan allows massive timber harvesting, making streams uninhabitable for endangered salmon, this new jeopardy definition could allow the plan to go forward based solely on its stated goal of long-term forest regeneration – even though the plan lacks any significant conservation measures to address the harmful short-term impacts that put the species at risk of extinction.
Second, the bill would force the Service to put blinders on considering whether a species is in jeopardy of extinction. Under the current Act, in evaluating a federal action’s impact on a species, the Service must consider the “baseline” condition of the species at the time the action would be carried out. Thus, if a host of other projects are also negatively affecting the species, the Service must address the cumulative effects of the projects combined in evaluating whether the species is in trouble. The Pombo bill (p. 44) forbids the Service from taking these baseline conditions into account. It thus requires that the Service ignore reality on the ground and invent a fictional environment where the proposed action is the only current threat to the species’ existence.
- Protection
of Threatened Species Would Be Weakened
Unlike endangered species, species listed as threatened under the Endangered Species Act do not enjoy the prohibitions of the Act’s statutory take prohibition. (ESA § 9). Instead, the Act requires that the Service issue regulations as necessary to provide for the conservation of the species. (ESA § 4(d)). Because of the crucial importance of protecting threatened species from habitat destruction and other forms of take, the Service has issued a default regulation pursuant to ESA § 4(d) extending the take protection to all threatened species except those (a small handful) for whom special rules have been crafted.
The Pombo bill eliminates this common-sense approach to threatened species. Under the Pombo bill, the requirement that the Service issue regulations as necessary to provide for the conservation of the species is repealed (p. 15). The current default rule extending the take protection to all threatened species is apparently also repealed; the bill requires that any regulation issued to protect threatened species must be issued on an individualized basis. Considering the enormous cost that would be entailed in issuing separate regulations for each threatened species, and the repeal of the statutory mandate to do so, the Service is unlikely to restore the necessary protections.
The take protection for threatened species stimulated developers
to participate in multi-species habitat conservation planning in southern
California
for the
California
gnatcatcher and numerous other species. This conservation effort, which helped conserve thousands of acres of expensive real estate in a biodiversity hotspot, is often cited as a model for the rest of the country and the world. The Pombo bill would eliminate the Endangered Species Act protections that made large-scale HCPs happen.
- Miscellaneous
Additional Weakening Provisions
The Pombo bill has a host of additional provisions that would make the Endangered Species Act’s goal of species recovery more difficult to accomplish. Among them:
- It calls for new regulations that define “best available science,” allowing the Secretary of Interior to lock in politically-motivated definition of this key term rather than allowing scientists to continue to define it according based on evolving knowledge and information. (P. 3-4).
- It imposes a new definition of “distinct population segments,” reducing the likelihood that species will be protected at the population level, even when such a proactive measure would be the most effective and least costly conservation strategy. (P. 6).
- It codifies the “no surprises” rule, which limits the ability to reopen permits for incidental take of listed species, without including tools, such as monitoring and adaptive management, that are widely recognized as necessary to rescue species declining toward extinction. (P. 51.)
- Habitat destruction is authorized, and consultation duties are waived, for activities carried out pursuant to newly-created state conservation agreements. The bill imposes no mitigation requirements or other minimum standards for these agreements. (P. 38)
- Numerous new bureaucratic hurdles are imposed on the Services, despite the already severe shortage of resources and the likelihood that substantial appropriations increases will not be forthcoming.
September 27, 2005 in Biodiversity, Legislation, US | Permalink | Comments (0) | TrackBack (0)
Monday, September 26, 2005
An unnatural disaster: the aftermath of Hurricane Katrina
Here's a must read by some colleagues published through the Center for Progressive Reform! An unnatural disaster
September 26, 2005 in Biodiversity, Climate Change, Energy, Environmental Assessment, Governance/Management, Land Use, Law, Legislation, North America, Physical Science, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Quality | Permalink | Comments (1) | TrackBack (0)