Kempthorne on proposed ESA rule changes

The Bush administration on Monday said that changes it wants to make to endangered species rules before President Bush leaves office will have no significant environmental consequences. (The Associated Press)

If you go to the "Myths and Realities" page on the Department of Interior website, you'll find this claim:

Federal agencies would continue to be required to consult with the Fish and Wildlife Service and NOAA Fisheries if their intended actions are expected to harass or harm a listed species. The proposed regulations clarify that agencies do not have to consult if their actions have no effect, an insignificant effect, a beneficial effect or an indeterminable effect on a listed species or its critical habitat.

And who is it that gets to make the decision about whether the agency's actions "have no effect, an insignificant effect, a beneficial effect, or an indeterminable effect on a listed species or its critical habitat"? You guessed it. The agency itself. And why is that a bad idea?

Well, Secretary of Commerce Carlos Gutierrez must think its a bad idea. NOAA reports to him, and NOAA officials recently notified the Federal Energy Regulatory Commission that their approval of a natural gas terminal is illegal under the Endangered Species Act.

"We feel FERC has come to a final decision without the benefit of the critical pieces of information they need to make that decision," said Cathy Tortorici, branch chief for NOAA Fisheries Service in Portland. "We're saying, 'Stop what you're doing until you've consulted with us..." (Portland Oregonian, 17 October 2008).

What do you think the chances are that NOAA would have been allowed to issue such an opinion if Kempthorne's regulatory changes had been in effect? Do you believe him when he calls it a "narrow regulatory change".

Mr. Secretary, if it truly is a "narrow regulatory change" that "will provide clarity and certainty to the consultation process under the Endangered Species Act," why not leave your proposal for the next administration to enact? What's the rush?