Well on Friday the Fish and Wildlife Service announced that it was releasing a NEPA document on its proposed changes. Only it wasn’t an EIS, it was an Environmental Assessment or “EA.” An EA is much less rigorous document than an EIS, and one that can only be relied on if the agency (here, the Fish and Wildlife Service) concludes that the proposed action is not going to have a significant effect on the environment. As I argued on Thursday, that’s a tough argument to make here. (For a contrary view, see PLF’s blog.)
But putting that question aside for a moment, the Bush Administration has decided to only allow the public 10 days to comment on it’s draft EA (the deadline November 6th). And, although the clock has started, the Administration hasn’t even seen fit to publish it. According to the announcement:
This Federal Register notice advises the public that we (FWS and NOAA) have prepared a Draft Environmental Assessment (Draft EA) under the National Environmental Policy Act (NEPA) that assesses the potential environmental effects of the proposed regulatory changes currently under consideration. The Draft EA is available for public review at the following Web site: http://www.doi.gov/issues/esa.html.
Problem is, if you click on that link there is no EA to comment on (at least I can’t find it—if some intrepid reader manages to locate it, please let me know). What you will see, however, is a “Myths and Realities” page defending the proposed ESA regulations. So what we have is an absurdly short comment period (10 days!) that has already begun to run despite the fact that the Department hasn’t even posted the document it’s asking for comments on yet. But they have posted a defense of their proposed regulations that certainly makes it seem like the agency has already prejudged the merits of its proposal—precisely the thing that NEPA’s procedural protections are designed to avoid.
UPDATE: Someone just pointed out to me that notice of the draft EA was officially published today, so technically the 10-day clock didn't begin to run until this morning. Still, we are unable to locate the draft EA on the website and, with a 10-day timeline, every day counts.
UPDATE II: The draft EA is now available here.
]]>Although the actual press release is pretty cagy on the subject, the Fish and Wildlife Service’s wolf recovery coordinator states that the Service may try to carve out Wyoming from a new delisting rule, striping gray wolves of their protection everywhere else in the northern Rockies. It’s also notable that there is only a 30-day public comment period attached to this rule and (apparently) no plans for any hearings. By contrast, the last time the Service proposed to delist the wolf, they had much longer comment period and held six public hearings throughout the region. Why the rush? My suspicion is so the Bush Administration can try to finalize the delisting rule before it leaves office.
As my colleague Louisa Willcox notes, the fundamental problem with any delisting proposal right now is that there simply aren’t enough wolves in the region to conclude that the species has recovered.
It’s also worth adding that it’s probably illegal to delist wolves in Montana and Idaho, but keep Endangered Species Act protections in Wyoming. The Endangered Species Act doesn’t let you “carve up” populations that way: if wolves in the Northern Rocky Mountains are still threatened in a significant portion of their range (and Wyoming constitutes a huge chunk of it) then you can’t delist them elsewhere. This isn’t the first time the Bush administration has floated this nonsense, either. They are also trying something similar with the Preble’s meadow jumping mouse, an effort NRDC also opposes.
]]>First, FWS and NMFS must analyze the proposed rule under the National Environmental Policy Act. NEPA has been called the magna carta of the environmental movement. It requires that federal agencies to prepare an “Environmental Impact Statement” or “EIS,” for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Producing an EIS is an involved process, one that requires a federal agency to take a “hard look” at the environmental effects of its activities before it decides to take them. The changes the Bush Administration is contemplating here--a fundamental shift in some of the Endangered Species Act’s most basic procedures--is certainly “significant.” But it’s hard to see how an EIS for these changes could be drafted and, as is also required, published for public comment and finalized, before November.
Second, in addition to its NEPA obligations, both FWS and NMFS must undergo “internal” Endangered Species Act consultations before the rules can be finalized. Under Section 7 of the Act, anytime an agency concludes that its actions “may effect” protected species, it has to consult with either FWS or NMFS (depending on the species at issue). The Section 7 Consultation Handbook, issued jointly by FWS and NMFS, explicitly directs the agencies to conduct intra-Service (that is, internal) consultations before issuing new regulations. According to the Consultation Handbook, for example, all FWS subunits must “consult or confer with the appropriate FWS Ecological Services field office on actions they authorize, fund, or carry out that may affect listed, proposed or candidate species or designated or proposed critical habitat.” U.S. Fish & Wildlife Serv. & Nat’l Marine Fisheries Serv., Endangered Species Consultation Handbook (1998) at 1-5. Here, that means that before the proposed regulations can be finalized, both NMFS and FWS must prepare formal “biological opinions” analyzing the proposed rule’s affect on the ability of listed species to survive and recover. Again, this is an involved process that requires careful, objective, analysis. It’s difficult to see how it could be accomplished within the next several weeks.
]]>The AP has obtained an internal e-mail from Brian Aroyyo, the U.S. Fish and Wildlife Service’s Assistant Director for the Endangered Species Program, that the agency is attempting to review 200,000 substantive comments from the public “in just 32 hours.” According to the AP, that works out to roughly 9 seconds per comment.
In fairness, the AP story also states that the Fish and Wildlife Service’s team’s task will be “to sort through the comments” and that “Interior Secretary Dirk Kempthorne's office, according to the e-mail, will be responsible for analyzing and responding to them.” So it may be that some comments get more than their 9 seconds worth.
Having the Department of Interior, rather than the Fish and Wildlife Service, respond to the comments is consistent with some informal conversations I’ve had with Agency personnel, who told me that the scientists and policy experts at the Fish and Wildlife Service were not consulted on these proposed rule changes and would not be taking any role in analyzing them. Reading between the lines a bit, it sounded to me that the Service’s career employees were none to happy about the proposal or the Administration’s failure to run it through normal channels. Put another way, these rule changes are almost entirely the product of political appointees at the Department of the Interior and it looks like the Bush Administration is determined to keep it that way.
One other thing jumped out at me about the AP story. The article quotes Dale Hall, the Director of the Fish and Wildlife Service as stating that
The Interior Department received approximately 300,000 comments over the 60-day comment period, many critical of the changes.
About 100,000 of them were form letters, Hall said
This is strange. First, how could Director Hall possibly know that 100,000 of the 300,000 comments his agency received were form letters if they haven’t been reviewed yet? While it’s true that the NRDC Action Fund and its environmental allies delivered 100,000 comments to the agency, not all of them were form letters; in many cases, Action Fund supporters customized their letters. These comments deserve just as careful a review as any other. And, even if it’s true that 100,000 form comments were received, that means there are at least 200,000 substantive comments that need to be “sorted” by the Fish and Wildlife Service and analyzed by the Department of the Interior.
The final piece of the puzzle is this: according to Hall, the goal of this rushed process is to get to have the rule to the White House by early November. It’s pretty hard to conclude that the public’s input on these proposed regulations—regulations that will weaken one of America’s bedrock environmental laws—will be given anything but the shortest of shrifts—if the Administration is going to meet its goal.
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EBay should be given some props today for their decision to ban the sale of ivory products, starting in January. The intent of the ban is to reduce the demand for illegally harvested elephant ivory. Despite a ban on the international ivory trade, elephant poaching in Africa is on the rise and remains a significant threat to some populations.
UPDATE: I should have mentioned that EBay's move was in response to the good work of the folks at IFAW.
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NRDC played a key role in securing the listing. Especially important was the engagement our members and online activists, who collectively sent over 118,000 letters to the federal government supporting enhanced protections for the whale (our members’ and activists’ comments made up over two-thirds of the total comments received by the government).
The beluga whale’s newfound protection under the Endangered Species Act will help scientists deal with the many threats faced by the species, including oil and gas exploration, construction activities, and the discharge of partially-treated sewage into whale habitat by the Anchorage’s wastewater treatment plant. NRDC will now turn to making sure that we secure habitat protections for the whale and that these threats are appropriately addressed.
]]>One the one hand, polar bear conservation took a modest but important step forward yesterday, when the U.S. Fish and Wildlife Service agreed to designate “critical habitat” for the polar bear and to issue guidelines on non-lethal steps people can take to deter problem bears. The agreement settles part of NRDC’s, the Center for Biological Diversity’s, and Greenpeace’s ongoing lawsuit over polar bear protections. The commitment to designate critical habitat is particularly important. Critical habitat is habitat that an endangered species needs in order to recover. Once designated, it is afforded special protections from federal agency action under the Endangered Species Act.
On the other hand, there was a stark reminder yesterday from the the World Conservation Congress, which is taking place in Barcelona, about the true magnitude of the challenges that all mammals (including polar bears) now face. After conducting a five years survey of 1,700 researchers in 130 countries, scientists have concluded that 25% of the worlds 5,487 mammals species face extinction. And this may well be a conservative assessment. As reported by the Los Angeles Times today:
]]>The prospects for these animals may be worse than even the global numbers suggest, said Jan Schipper of Conservation International, who was the lead author of the Science paper. The problem is what he called a surprising lack of information about 836 mammal species.
"If you don't know where they are or how many there are, then it's hard to determine if they have viable populations or [are] threatened with extinction," Schipper said. Given this uncertainty, as many as 36% of land mammal species and 61% of whale, seal and other marine mammal species could be threatened with extinction.
Someone should tell that to the Pacific Legal Foundation. On Sunday, the Washington Times published an op-ed on the case by David Stirling, Vice President of PLF. I wasn’t particularly surprised to see it, at first. After all, PLF is a property-rights groups that spends considerable time trying to weaken wildlife protections under the Endangered Species Act (they recently filed a lawsuit challenging the listing of the polar bear) and the Washington Times’s editorial page isn’t exactly a bastion of environmental consciousness. But I was surprised to read this:
Hopefully, the court will set aside the long-held notion within the federal judiciary that the Endangered Species Act is a super statute that trumps all other public considerations. This faulty line of thinking got its start in the 1978 Supreme Court decision in TVA v. Hill (the snail darter case) where it declared Congress intended the ESA to preserve plant and wildlife species "whatever the cost."
Now this is a pretty typical (if wrongheaded) argument, but given the fact that this case doesn’t concern the Endangered Species Act it actually made me laugh out loud. Stirling also asserts that beaked whales, one of the types of whales most vulnerable to active sonar, are “listed as ‘threatened’ under the Endangered Species Act” (they’re not). So you won’t be surprised to hear that much of Stirling’s other assertions about the case are equally wrong.
*Philadelphia Phillies manager, Danny Ozark
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The last few months have been heady ones for wolf advocates. First, a federal judge in Montana issued a preliminary injunction restoring the gray wolf population in the Northern Rocky Mountains to the endangered species list; a move which prompted the U.S. Fish and Wildlife Service to seek a voluntary withdrawal of their decision to end Endangered Species Act protections for the population. Then, on Monday, another judge in Washington, D.C., struck down the Service’s decision to strip protections from the Midwest’s wolf population.
Both decision were legally sound. The Montana court’s opinion was more sweeping and substantive; the D.C. court’s was decided on a narrower, legal grounds, but together there’s no doubt that these cases are also a swift kick in the pants for Fish and Wildlife Service. I hope they will prompt the agency to fundamentally rethink its approach to wolf recovery.
Gray wolves are a vital part of wild ecosystems. They once roamed across the United States, from Maine, to Oregon, and down the spine of the southern Rocky Mountains. We need to think about wolf recovery across the lower forty-eight, not just in the few places where wolf populations have rebounded. Not every state can or should be home to wolves, but there’s plenty of suitable wolf habitat in Maine, New Hampshire, Oregon, Washington, Colorado, and the Southwest (just to name a few). That’s why earlier this year, NRDC filed a petition with the Fish and Wildlife Service to prepare a nation-wide recovery plan for gray wolves. Such plans are actually mandatory under the Endangered Species Act, but the Service has ignored its obligation to prepare a nation-wide plan for wolves for decades. Once we all agree on what true wolf recovery would look like, we’ll be able to more effectively and defensibly grapple with the status of wolves in different regions of the country.
]]>First, last night BBC’s Science in Action had a fascinating piece on tests of polar bear hearing thresholds (that is, what is the spectrum of sound that polar bears can actually detect?) being conducted in San Diego. This work is more significant than it may appear because several studies suggest that noise pollution can have a negative effect on polar bear behavior (particularly denning behavior). And oil exploration and development? Well, it ain’t quiet. NRDC flagged this potential last year, in a letter to the U.S. Fish and Wildlife Service:
Noise disturbance from seismic activities of oil exploration as well as ground and air transportation can be heard within 300 meters of dens…Exposure to noise from drilling and vehicles may cause bears to abandon their dens In other circumstances, den disturbance has been linked to lower birth weight in female cubs.
As one of the scientists in the Science in Action story says:
Noise is a potential problem and it has been in their environment for decades now. The combination of noise disturbance on top of the implications of climate change for polar bears are the problem. Noise in and of itself is not a problem for polar bears, but if you layer it on top of the impacts of climate change, then you have the potential for a real problem.
Second, two of the world’s foremost polar bear researchers, Ian Stirling and Andrew Derocher, just published a world-class smackdown of an article that appeared in Ecological Complexity last year suggesting that polar bears in the Western Hudson Bay weren’t threatened by global warming and, even if they were, could adapt. The whole thing is worth checking out, but this bit (responding to the suggestion that polar bears can compensate to the decline of seals in the Arctic by eating more vegetation) was my favorite:
Polar bears are large animals that, similar to their brown bear relatives, require energy dense foods in the form of fat and protein, to maintain body size and population densities (Hilderbrand et al., 1999; Felicetti et al., 2003). They got that way be eating seals, not berries. (Robbins et al., 2007).
Ouch!
]]>So I tuned in, curious to see what Mr. Laverty, in particular, would say about the Bush Administration's proposal to roll-back Endangered Species Act protections. But they didn't show up. Apparently, each agency sent Sen. Boxer's staff a last-minute note saying that they wouldn't testify after all (Senator Boxer said that Laverty's excuse was he couldn't get his "testimony cleared").
It's highly unusual for Administration officials to snub a Senate Committee like this and reflects what I would say is a well-deserved defensiveness on their atrocious environmental record.
(You can see the hearing live here)
UPDATE: Greenwire is reporting (subscription required) that the Administration boycotted the hearing in concert with Senator Inhofe, who also failed to attend and actually tried to block the hearing from taking place:
Inhofe said he objected to the meeting because Democrats had not granted his requests for other hearings this year, particularly one on ethanol. It was the first time he has formally protested a committee hearing, according to his staff.
Inhofe also attempted to derail the hearing this afternoon by using an obscure Senate rule about hearings while the Senate is session that is routinely waived. Majority Leader Harry Reid (D-Nev.) temporarily recessed the Senate to allow the hearing to proceed.
"We are honoring Senator Inhofe's request not to attend the hearing," said Interior spokesman Chris Paolino. "We look forward to discussing the scheduled subject of today's hearing at a future, bipartisan hearing."
What exactly are these guys afraid of?
]]>He even provides a graph, which does show a rise in minimum sea ice extent in 2008 compared to 2007:
Not surprisingly, this chart doesn’t really do justice to just how low today’s sea ice coverage is compared to prior years (represented by the dark gray line on top). Here’s another chart, helpfully provided by Andrew Revkin at Dot Earth and also from the government:
What was that about “expanding” hunting grounds again?
]]>From their reintroduction to the greater Yellowstone region in the 1990’s, to their rebounding populations in Montana, Idaho, and Wyoming (and the remarkable effects that wolf reintroduction has had on the region’s ecosystem), to the defeat of the federal government’s ill-advised delisting plan, the Endangered Species Act was the key. The Endangered Species Act provided initial umbrella of protection wolves in the lower forty-eight needed; it provided the flexibility to allow an “experimental” population of wolves to be reintroduced to the region; and its insistence that removal of wolves from the federal list of endangered species could only be based on “best available” science and the presence of adequate state regulation prevented a premature delisting.
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In other news, this Sunday, the Los Angeles Times published an op-ed by yours truly on the proposed rule change. You can check it out here.
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