Environmental Law Professors Criticize Administration’s Proposed Changes to Endangered Species Act

For Immediate Release

Professors call proposed regulations illegal and accuse administration of trying to lock in changes before Bush leaves office

Contact: Susan Gluss, UC Berkeley School of Law, 510.642.6936 / 510.705.3366 (cell) sgluss@law.berkeley.edu

Berkeley, CA—October 13, 2008… University of California, Berkeley, School of Law Assistant Professor Eric Biber is spear-heading a challenge by law professors nationwide against the administration’s controversial proposed changes to the Endangered Species Act (ESA).  Professors from 17 leading environmental law programs joined Biber in criticizing proposed rules that could exempt projects such as highways, dams and power plants from endangered species review. Final comments will be submitted to the Interior and Commerce agencies on Tuesday, October 14.

 The new rules, proposed in August, would allow agencies to bypass project reviews by the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), in many cases.  Instead, federal agencies would conduct their own reviews to gauge a project’s impact on endangered species and habitats.  But environmental legal expert Biber says that’s a serious conflict of interest.

 “It’s like asking a thief to guard the gold coins,” said Assistant Professor Eric Biber. “The Endangered Species Act requires federal agencies to protect the existence and habitats of whooping cranes, the gray whale, and more. If these proposed rules are adopted, those animals and countless others, such as the polar bear and Pacific Northwest salmon, will be at risk of extinction and ecosystems at risk of permanent damage.”

 The ESA requires federal agencies to not only consult with wildlife agencies about the potential impacts of their proposed actions on an endangered species, but also prohibits federal actions that would “jeopardize” the existence of a listed species or “adversely modify” critical habitat. However, according to Biber and his colleagues, the proposed changes to the ESA could do just that.

 For example, the proposed rules would:

  • Make it much harder to link federal actions to species harm—leading to fewer consultations with wildlife agencies;
  • Require much more evidence when determining possible impacts on a species. Given how little scientists know about many listed species (which is often why the species are in trouble) and the fact that most species are faced with multiple interacting threats, this could also reduce the scope and number of wildlife consultations;
  • Shift wildlife review from expert scientists and biologists at the FWS and the NMFS to the agency proposing the action (e.g., the Forest Service for a logging project).  Law professors question whether these “action agencies” have the expertise or incentive to conduct adequate analyses that will truly determine whether harm will result, or whether they will sweep problems under the rug to avoid consultations;
  • Leave wide latitude for judgment when impacts from a project are highly uncertain or speculative. As a result, agencies may not have the incentive to protect listed species or to conduct a thorough investigation about possible wildlife impacts;
  • Exempt agencies from considering the impacts of climate change and greenhouse-gas emissions on endangered species. In other words, if a federal agency is constructing or permitting a coal-fired power plant, it doesn’t need to consider whether the plant’s greenhouse-gas emissions will harm, say, the polar bear or other vulnerable animals.

Although Biber agrees that the ESA consultation process could be improved, he says the administration’s proposed changes do more harm than good.  “The rules are overbroad, rushed, and possibly illegal,” said Biber. “Given the timing of the proposed changes, it’s clearly an effort by the administration to weaken the regulations before President Bush leaves office.”

Biber suggests a more thoughtful review of the Endangered Species Act to determine how it can be improved, and, specifically, “to what degree climate change should be included as part of an endangered species impact review.”

Law professors involved in drafting comments include:

  • Eric Biber, assistant law professor, UC Berkeley School of Law
  • Dave Owen, associate law professor, University of Maine School of Law
  • Zygmunt Plater, law professor, Boston College Law
  • Cynthia Drew, visiting law professor, Seattle University School of Law
  • Leah Russin, clinical teaching fellow, Stanford Law School
  • Andrew Long, assistant law professor, Florida Coastal School of Law
  • Fred Cheever, law professor, University of Denver College of Law
  • Steve Gold assistant law professor, Rutgers School of Law
  • Joel Mintz, law professor, Nova Southeastern Shepard Broad Law Center
  • Edward Lloyed, clinical law professor, Columbia Law School

View the environmental law professors’ submitted comments by downloading this PDF file.


University of California, Berkeley, School of Law

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