Air Date: Week of August 15, 2008

The American Bald Eagle population recovered after being protected under the Endangered Species Act, and was de-listed in 2007.

The Bush administration wants to modify the Endangered Species Act. The proposed changes would allow federal agencies to decide for themselves the effects their projects would have on plant and animal species. The revised rules are also intended to prevent the ESA from being used to regulate the greenhouse gases that cause climate change. Host Bruce Gellerman talks with Professor Lisa Heinzerling of Georgetown University Law Center about the proposal.

Transcript

GELLERMAN: Since the Endangered Species Act became law in 1973 – more than thirteen hundred animals and plants have been put on the list to preserve them and protect their habitat. But from the very beginning, opponents - principally mine owners and lumber companies - have tried to change the law. And now, in its final months in office, the Bush administration is proposing sweeping revisions to the Endangered Species Act that critics say threaten the law itself with extinction. The changes would streamline section seven - the scientific review of federally funded projects - that’s used to determine if plants and animals are in jeopardy. Kaush Arha (Kosh R-ha) is the Deputy Assistant Secretary for Fish, Wildlife and Parks at the Department of the Interior.

ARHA: What the proposed rules do is to provide directions towards federal agencies as to which way to make the calls on those very marginal areas, youÂ’re not sure as to whether itÂ’s going to have an effect, may effect, or no effect. ThatÂ’s always sort of a gray area.

GELLERMAN: The administration wants to make it crystal clear that section seven canÂ’t be used to protect potentially threatened species from projects that emit greenhouse gases.

ARHA:It would be irresponsible and improper to use an endangered species act as a backdoor way to regulate or address global warming.

GELLERMAN: That’s Kaush Arha (Kosh R-ha) of the Department of the Interior explaining the Bush administration’s plan to revise the Endangered Species Act. Lisa Heinzerling has looked at the proposal – she’s a professor at Georgetown University Law Center – welcome!

HEINZERLING: Thank you for having me here.

GELLERMAN: According to the Department of the Interior, the changes focus exclusively on Section seven of the Endangered Species Act and according to them its just a minor change, you know.

HEINZERLING: Yeah, thatÂ’s wrong. The changes allow an agency, lets say the Department of Transportation, which is proposing an action that may effect an endangered species to make the call about whether that effect will occur without consulting with the wildlife agencies. And so the agencies such as the Department of Transportation have first of all no substantial expertise in deciding whether these effects will occur with respect to endangered species. And second of all they like building highways, building dams, and so forth, they are not primarily interested in protecting species and for that reason the statute requires cooperation between the agencies interested in doing things like building highways and the wildlife agencies that are interested in protecting species.

GELLERMAN: So when the Department of the Interior and Mr. Arha say this is just for streamlining, to clarify the project proposal process, you sayÂ…

HEINZERLING: Those are euphemisms. Streamlining in this administration is simply a euphemism for deregulation. And so this, sure, it will streamline the process by cutting out a major protection of the act for species.

GELLERMAN: You know it was just a few months ago that the Secretary of the Interior, Kempthorne, ruled that the polar bear is a threatened species because of climate change. And now that theyÂ’re saying specifically, as you heard Mr. Arha say, this you know we donÂ’t want to use the Endangered Species Act as a backdoor for regulating climate change.

HEINZERLING: It is quite noteworthy that the agency has found it necessary to change longstanding regulations in order to avoid the conclusion that the statute applies to climate change. So its taken significant steps to strengthen causation requirements, to tighten the kind of scientific evidence that’s required in order to protect species, simply in order to promote its own policy view that the statute doesn’t work for this problem. And so to say that the statute is a backdoor way of regulating climate change, I think gets the cart before the horse. You should look at the statute and see what it says and whether it addresses the problem. And if you don’t think it should, then go to Congress for a correction. But what the administration here has done is to say, “We don’t think its a good fit for this problem and so we’re going to declare it inapplicable.”

GELLERMAN: Well why didnÂ’t they go to Congress? I mean it was Congress who made the law, itÂ’s Congress who changes the law.

HEINZERLING: Yeah, in fact they went to Congress a couple years ago to try get the act changed and they were unsuccessful and so I view this as a kind of last gasp attempt to make the statute weaker and to try to ensure that the statute doesnÂ’t lift a finger to address climate change.

GELLERMAN: The Endangered Species Act has been around for more than 35 years now, 1,350 and some odd species have been put on the endangered or threatened list. The administration would say, “You know, it’s not working.” Only 17 of the species have recovered, nine or so have gone extinct while on the list, the thing’s not working, we need to fix it.

HEINZERLING: I think thatÂ’s the wrong way to look at it. I think a better way to look at it is to think about what might have happened if the act hadnÂ’t been in place. ItÂ’s not so much exactly how many species have recovered, but how many would have been imperiled if these protections had not been there.

GELLERMAN: Lisa Heinzerling is a professor at Georgetown University Law Center. She specializes in environmental issues

 

Links

The Department of the Interior's proposed changes to the Endangered Species Act

Professor Lisa Heinzerling