Rewrite Would Weaken Endangered Species Act The Bush administration has been losing many Endangered Species Act cases in court. Now, it's in the midst of a major rewrite of the rules behind the landmark law — in part to make it harder for environmental groups to successfully sue the administration.

Rewrite Would Weaken Endangered Species Act

Rewrite Would Weaken Endangered Species Act

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript

The federal government is working on a major rewrite of Endangered Species Act rules. Leaked documents that were reported first by show just how contentious some of the changes might be.

Dale Hall, who heads the Federal Fish and Wildlife Service, says his staff has been considering a wide range of possible changes.

"We're looking at all aspects of the law," he says. "We're trying to figure out all those things that will help us be better at recovering species."

Hall refuses to say what provisions will make the final cut. And he tries to play down the significance of the leaked documents.

"It's really a starting point, a beginning of a process," he says. "It's not one that represents any of the latest thinking that we have."

Environmentalists got the documents from federal employees who worry that the changes could hurt rare species. And they say the documents reflect the agency's current thinking.

Kieran Suckling, from the Center for Biological Diversity, says some of the documents are dated last month. And the most important document was dated last June, but updated recently.

"But if you look at the editing trail," he says, "you can see that those documents also were last edited in February of this year. So despite the administration's attempt to say this is all old stuff and it has nothing to do with what we're doing today the paper trail clearly shows they're very current."

Many of the proposals spring from lawsuits the government lost to environmental groups in recent years. Environmentalists say the proposals taken as a whole would gut protections for rare animals and plants, and help a whole range of industries from construction to hydroelectricity.

John Kostyack, of the National Wildlife Federation, says a lawsuit filed by his group probably inspired one of the proposals. The case was about whether the government should require dam operators to protect endangered salmon in the Pacific Northwest.

"The administration lost because they were arguing that they were not responsible for the very endangered condition of the salmon," he says. "And as long as their project didn't worsen that very endangered situation, then they had no responsibility. The court said no."

The judge ordered the government to find ways to better protect the salmon, but Kostyack says under the new proposals that obligation would disappear. The government could keep giving industries permission to do things that harmed species, even on public land.

"As long as you weren't worsening an already bad situation, you have no responsibility," Kostyack explains.

That change also caught the eye of Damien Shiff, a lawyer for Pacific Legal Foundation. He represents industries and landowners who oppose government regulation.

"It certainly is an improvement from the perspective of the regulated community in favor of property rights," he says.

Another proposal has to do with whether other federal agencies are required to consult with the Fish and Wildlife Service before they approve timber harvests, mining and a whole range of other activities. Jan Hasselman, a lawyer for Earthjustice, says the Bush administration has been trying for a long time to get rid of these consultations.

"They tried a year or two ago to develop a process where the Environmental Protection Agency was no longer accountable under the endangered species act for pesticides," Hasselman says. "That effort was set aside by a judge here in Seattle."

But it resurfaces in the draft. Under one proposal, the Fish and Wildlife Service could let other agencies make their own calls on whether their actions would hurt rare animals or plants.

Damien Shiff, the property rights lawyer, says the agency has been losing a lot of cases on this very issue.

"The agency's track record has not been good." And he adds that could change if the proposals in the leaked documents were adopted. "The service would most likely see an increase in their winning percentage," he says.

One of the proposals that worries environmentalists most has to do with where a species would be protected.

Suckling, from the Center for Biological Diversity, says that under the proposal, rare species might only be protected in the small areas where they are doing the best.

"That's a problem," Suckling says, "because most endangered species are absent from 90 percent of their range."

Under that rule, he explains, many of the biggest endangered species success stories never would have happened. For instance, the bald eagle might have been protected only in Alaska, instead of getting the protection it needed to return to every state in the nation besides Hawaii.