Op-Eds


Don't hamstring the Endangered Species Act

Eric Biber, San Francisco Chronicle

By Eric Biber, San Francisco Chronicle

The Endangered Species Act provides essential life support to a wide range of species on the edge of extinction, including native salmon, grizzly bears and California condors.

There are costs to the Endangered Species Act. We might lose economic development opportunities when we protect native habitat. The regulatory program has its share of paperwork and administrative costs. But when Congress passed the act in 1973, it concluded that species protection was worth these costs. Congress hasn't changed its mind since then.

One key provision of the act requires federal agencies, when they pursue development projects, to consult with the U.S. Fish and Wildlife Service. The goal is to help both sides work together to determine possible impacts of development on endangered species. If the proposed project might cause serious harm to the species - what the act calls "jeopardy" - it is prohibited unless it is changed to reduce or eliminate that harm.

Consultation ensures that both the development agency and the Fish and Wildlife Service gather relevant information about endangered species and potential impacts on those species; it ensures that the service - a disinterested agency not committed to the development project - looks over the data and draws reasonable conclusions from that data; and it ensures that if that data show serious harm to endangered species, the project is stopped or changed. The consultation process is particularly important because, in many cases, we know very little about why species are endangered, or what the impacts from development projects might be. By requiring the development and analysis of information by an outside agency, the consultation process gathers better information about endangered species. Better information means cheaper and more effective protection for endangered species.

Unfortunately, the Bush administration undermined the consultation process by introducing loopholes in the implementing regulations. These loopholes potentially exempt a wide range of development projects from consultation. But these exemptions generally include the very types of projects for which we lack information about potential effects on endangered species. Indeed, in some cases, projects would be exempt from consultation precisely because of the lack of information about impacts on endangered species. But if we are serious about protecting endangered species, we need more information, not less.

Congress has given the Obama administration authority to undo these regulatory changes. The Obama administration should use its authority to restore the role of high-quality information in endangered species protection.

Eric Biber is an assistant professor at the UC Berkeley School of Law.

4/15/2009