Endangered Species Act reviews

The U.S. Endangered Species Act contains the following provision:

Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an "agency action") is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section.

I'm not a lawyer, but it seems pretty clear to me that the act requires federal agencies to consult with the Secretary (in practice the U.S. Fish & Wildlife Service or the U.S. National Marine Fisheries Service) to determine whether their actions might imperil listed species. Well, according to this morning's Washington Post the Bush administration doesn't agree.

The Bush administration yesterday proposed a regulatory overhaul of the Endangered Species Act to allow federal agencies to decide whether protected species would be imperiled by agency projects, eliminating the independent scientific reviews that have been required for more than three decades. 

The new rules, which will be subject to a 30-day per comment period, would use administrative powers to make broad changes in the law that Congress has resisted for years. Under current law, agencies must subject any plans that potentially affect endangered animals and plants to an independent review by the Fish and Wildlife Service or the National Marine Fisheries Service. Under the proposed new rules, dam and highway construction and other federal projects could proceed without delay if the agency in charge decides they would not harm vulnerable species.

In a telephone call with reporters yesterday, Interior Secretary Dirk Kempthorne described the new rules as a "narrow regulatory change" that "will provide clarity and certainty to the consultation process under the Endangered Species Act."

Clarity!!?? Certainty!!?? What's clear is that the Bush administration thinks they can change the law by administrative fiat. What's certain is that the change will result in less protection for endangered species.