Posted by Jonathan Adler:
FWS Staff to Review Seven Comments a Minute:
http://volokh.com/archives/archive_2008_10_19-2008_10_25.shtml#1224733470
In August, the [1]Bush Administration proposed substantial revisions
to the regulations governing federal agency consultations with the
Fish & Wildlife Service and National Marine Fisheries Service
regarding the potential impact of federal agency actions on endangered
and threatened species under Section 7 of the Endangered Species Act.
Section 7 is the portion of the ESA that prohibits federal agencies
from authorizing or undertaking actions that could harm endangered or
threatened species. Toward this end, it requires federal agencies to
consult with the FWS or NMFS to ensure its actions will not harm
species. The proposed rules are designed to give federal agencies more
discretion about when and whether to consult with FWS or NFMS, thereby
limiting the effect that Section 7 has on agency action. As the
Interior Department [2]explained when the proposal was issued:
These changes are designed to reduce the number of unnecessary
consultations under the ESA so that more time and resources can be
devoted to the protection of the most vulnerable species. Under the
proposed rule, agency actions that could cause an adverse impact to
listed species are still subject to the consultation requirement.
The proposed rule is consistent with the FWS current understanding
that it is not possible to draw a direct causal link between
greenhouse gas (GHG) emissions and distant observations of impacts
affecting species. As a result, it is inappropriate to consult on a
remote agency action involving the contribution of emissions to
global warming because it is not possible to link the emissions to
impacts on specific listed species such as polar bears.
The [3]proposal itself is quite extensive, and generated thousands of
comments - over 200,000 in fact. Normally this would result in a drawn
out rulemaking process, as all the submitted comments must be reviewed
and considered. In this case, however, the Interior Department is
eager to get the new rules finalized before the Bush Administration
leaves office. Senator Obama has indicated his disagreement with the
regulatory revision and a finalized rule would be more difficult for
an Obama Administration to reverse. So, [4]according to an AP report,
the FWS has assembled a special team to review the comments on the
rule.
The Fish and Wildlife Service has called a team of 15 people to
Washington this week to go through letters and online comments
about a proposal to exclude greenhouse gases and the advice of
federal biologists from decisions about whether dams, power plants
and other federal projects could harm species. That would be the
biggest change in endangered species rules since 1986.
In an e-mail last week to Fish and Wildlife managers across the
country, Bryan Arroyo, the head of the agency's endangered species
program, said the team would work eight hours a day starting
Tuesday to the close of business on Friday to sort through the
comments. . . .
At that rate, according to a [House Natural Resources] committee
aide's calculation, 6,250 comments would have to be reviewed every
hour. That means that each member of the team would be reviewing at
least seven comments each minute.
It usually takes months to review public comments on a proposed
rule, and by law the government must respond before a rule becomes
final.
Even considering the fact that a large portion of the comments were
form-letters (or their equivalent) generated by environmental activist
groups, reviewing 200,000 comments in 32 hours is a stretch -- and the
public exposure of this process will only make it more difficult for
the Interior Department to defend its rules. I was skeptical that the
Administration's proposed changes will survive judicial review before,
as I do not believe the ESA's consultation requirements are as
flexible as the Bush Administration would like, particularly
considering the way in which these requirements have been interpreted
in federal court. But even if I am wrong about the legality of the
proposed changes, agency failure to provide adequate consideration of
public comments in the rulemaking process is just asking for more
trouble. Those on the FWS comment review team better be up on their
[5]Evelyn Wood.
References
1. http://www.doi.gov/news/08_News_Releases/080811a.html
2. http://www.doi.gov/news/08_News_Releases/080811a.html
3. http://www.doi.gov/news/08_News_Releases/AT50PR2008_08_13_FR.pdf
4.
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/10/22/MN8C13LRU4.DTL&hw=endangered+species&sn=001&sc=1000
5. http://www.ewrd.com/ewrd/default.asp
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