Co-authored by Chris Shutes
The Endangered Species Act is our primary legal tool for environmental protection.
We have until September 15--about a week--to save the Endangered Species Act.
Not just some species, but the Act itself! Bush administration officials are proposing redefinitions of terms that would allow conservative appointees in federal agencies to virtually the destroy the Act.
Their goal is to allow proposed projects to proceed even if such projects would kill off endangered species or place them or their habitats in jeopardy.
If the changes are not effectively challenged by September 15, they will go into effect, and, Goodbye Species!
Act now: Go to the end of this article for instructions. We need the public to flood the agencies involved with comments opposing the redefinitions and rule changes.
When the Cat's Away
While our attention has been turned elsewhere, the Endangered Species Act, our major environmental protection legislation, is being gutted--now.
Not by Congress. Not by the courts. Not even by Bush's executive orders. It is being destroyed by redefinition, by a series of linguistic tricks.
Causation, within an ecological system, is almost always systemic in nature. That is, there are disparate contributing causes with disparate contributed effects in various places at different times. Direct causation is rare. Direct causation occurs when there is a single act at a given time and place that results in a single effect at that time and place.
For example, a species of frog limited to a local wetland could be completely wiped out by a condo development with that wetland filled in. Direct causation.
But frogs around the country are dying out due to a complex combination of factors in different places at different times. Systemic causation.
Progressives and conservatives tend to think differently about causation. Conservatives, who think in terms of individual not social responsibility, tend to think in terms of direct causation--what an individual does. Progressives, who think in terms of social as well as individual responsibility, tend to think in terms of systemic causation. For example, if you ask what the causes of unemployment are, conservatives will tend to say people who aren't willing to do hard work, or willing to get the skills they need. Progressives will talk first about social causes: lack of education, lack of opportunities to acquire needed skills, corporate greed or insensitivity, and so on.
The present Endangered Species Act is realistic about systemic causation: disparate causes that contribute to disparate future effects count as "causation." But imagine what would happen if "causation" were redefined to mean only direct causation. Development projects now forbidden because they contribute significantly to future disparate loss of species and species habitat would now be allowed. Lots and lots of disparate projects at disparate places and times would be allowed. Their collective systemic effects could wipe out a great many habitats and species.
This is exactly what is being proposed by the Departments of the Interior and Commerce, as published in the Federal Register / Vol. 73, No. 159 / Friday, August 15, 2008 / Proposed Rules. They want to redefine causation so that only direct causation (they call it "an essential cause") counts as causation that jeopardizes the existence of a species listed under the Endangered Species act, or jeopardizes that species' critical habitat. The effect is that proposed development projects can contribute significantly to the destruction of habitat and the extinction of species, provided that they do not directly cause the elimination of a species, or directly reduce the population of a species or extent of its habitat--something that rarely happens. The result is that almost all proposed developments that were previously understood as "causes" of habitat destruction or species extinction will no longer be seen as "causes" at all and will be permitted. The reason will be that "cause" itself will have been redefined.
Up until now, the Endangered Species Act was governed by certain rules. The rules involved the following:
* A federal "action agency" (for example, FERC--the Federal Energy Regulatory Commission) which proposed a project.. An example of such a project might be the granting a license to operate a hydroelectric power plant.
* A "service"-- either the Fish and Wildlife Service for inland species or the National Marine Fisheries Service for marine species--whose job is the protection of plants, fish and wildlife and the gathering of information relevant to that protection.
* A "consultation"--a well-defined process in which an agency consults a service about a proposed project if it "may affect" species listed under the Act as threatened or endangered, in order to gather relevant information for the protection of those species.
* A Biological Assessment--a document written by the federal agency or its designated representative (perhaps, the hydroelectric project's owner) and presented to the relevant service. This document analyzes what the consequences of the proposed project might be for any threatened or endangered species the project might affect.
* A Biological Opinion written by the relevant Service which states whether there is jeopardy to listed species or their critical habitat. If there is jeopardy, the Biological Opinion sets forth measures that must be taken to mitigate project effects, or, if the effects cannot be mitigated, stops the project..
Under the proposed rule change, the federal action agency could use, in place of a Biological Assessment, a document that it assembled for other purposes, as long as the information about effects on listed species was contained in it. While this might make it easier for the action agency, it makes is more difficult and time-consuming for the Service, which then has to distill and reassemble on its own the information relevant to listed species.
Under the new rules, many such consultations would no longer even be required. The agency itself would be allowed to make that determination. In the past, the consultation determined whether or not there was jeopardy or damage to critical habitat. Under the new rules, the party proposing the project would determine whether it even needs to consult based on whether it itself, and not the Service, thinks there may be jeopardy or damage to critical habitat. In the past, a federal agency that proposed a project had to defend the notion that its project would do no harm to listed species. If the rules are changed, it will merely have to assert that it will do no harm.
The Endangered Species Act also permits "informal consultation," in which an agency informally consults with a service to see if a proposed action is reasonably certain to affect listed species. At the end of the informal consultation, which has no defined timeline, the agency is either required to enter into formal consultation, and prepare a Biological Assessment, or it is absolved by the Service from doing so. Under the new rules, this process would be limited to sixty days, an almost impossible timeline for the Services, which for years have been underfunded and understaffed. The new rules also state that if this timeline is missed, formal consultation cannot be required.
The Bush appointees who control the Services today say that it is appropriate for other federal agencies to take on some of the role that was up till now reserved to the Services. These appointees say that after 35 years of experience, the other federal agencies know a problem when they see it. The reality is that, even if the Services are in the future headed up by more progressive leadership, conservative directors of other federal agencies will still have the opportunity to evade consultation, killing off or jeopardizing endangered species.
Death by Definition
There it is. We have until September 15 to act.
The proposed new rules state that it if an agency allows the death of a plant or animal that is part of a listed species (or, in the language of the ESA, "take"), or the reduction of critical habitat, that it can be punished. This supports the conservative viewpoint that the way one avoids bad things is by a system of rewards and punishments. But the idea of the ESA is not to punish people after there is harm or reduction of habitat; the goal is to manage so that those things don't happen in the first place. If a species goes extinct, punishing the agency won't bring it back.
In addition, this conservative viewpoint presupposes that the burden of proof will be upon the Service to show that there has been take; in other words, we are back to having to show direct causation. If there is a combination of issues that may have contributed to the death of steelhead from the example described above, it would be necessary to show that a specific action resulted in the death of a specific fish. As it stands now, the combination of low flows, high water temperatures, lack of shallow rearing habitat for young fish in non-summer months, lack of high flows to help fish get from the river to the ocean, ocean conditions, and so on, all contribute to poor numbers of steelhead returning to the river to spawn. It is difficult, though not impossible, to show that low flows in the river in the summer caused take. However, looking at the matter proactively, from the point of view of the present options available to NMFS, the Service can require higher flows in the river to eliminate at least that part of the problem. It might not be definitive, or in the terms of the present proposed rule, "essential," but it can substantially improve the chance of increased survival for the fish that are present in the river.
These changes proposed as parting shots by the Bush appointees at the head of the Fish and Wildlife Service and the National Marine Fisheries Service are not about clarity, or eliminating unnecessary consultations, or the experience gained in thirty-five years of the Endangered Species Act. They are part of a concerted effort by conservatives to change the fundamental way that science is viewed and used in our society.
The language in the proposed rule change was reverse-engineered to address a huge looming issue: polar bears are clearly threatened by the systemic cause of ecological damage par excellence, global warming. But the evidence and the consequences of the systemic causation of environmental degradation are everywhere. Even if the conservatives succeed in truncating what scientists do and are allowed to say, and in limiting the Endangered Species Act by a linguistic trick, systemic causation, in the world of environmental science, will always be the ultimate inconvenient truth.
Here are some Talking Points:
* You are against the proposed rule changes because they weaken the Endangered Species Act nearly to the point of nonexistence.
* Environmental systems mostly work by systemic causation, with many indirect causes, not by "essential causation." The change to "essential causation" opens the door to an indefinitely large number of projects that can jointly put endangered species in jeopardy.
* The change in "consultation" rules will de facto eliminate the gathering of information relevant to protecting species.
Here's how you get your comments read:
Go to www.regulations.gov and use the search terms: "50 CFR Part 402 proposed rule".
The proposed changes are in Document # EB - 18938
To see the proposed changes, click on "View this document"
Click on "Send a comment or submission" to write your comment.
Note that plain e-mails will not be considered. This is another way public input is being limited.
Write your comments before September 15, 2008.
George Lakoff is Richard and Rhoda Goldman Professor of Cognitive Science and Linguistics at the University of California at Berkeley and author of The Political Mind: Why You Can't Understand 21st Century Politics With an18th Century Brain.
Chris Shutes works for the California Sportfishing Protection Alliance.
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