On Thin Ice

The Endangered Species Act was created to protect vanishing wildlife, but the law itself faces an uncertain future.

In May, the polar bear officially joined the ranks of threatened species across the nation. After years of scientific study and increasing pressure from environmental groups, the Interior Department concluded what many saw as obvious: Sea ice, which is vital to the bear's survival, is melting at an unprecedented pace, putting the creature on a path to extinction.

But when Interior Secretary Dirk Kempthorne announced the department's decision to designate the polar bear as "threatened" under the Endangered Species Act, he did so reluctantly and with a significant caveat. "The loss of sea ice, not oil and gas development or subsistence activities, is the reason the polar bear is threatened," he said. "With most threatened and endangered species, we can identify a localized threat that we can seek to address. The threat to the polar bear, however, comes from global influences and their effect on sea ice." Listing the bear would not change that fundamental fact, he said. For that reason, he pledged to take administrative and regulatory action to prevent the law from being abused to make policies aimed at addressing climate change. Listing the polar bear "should not open the door to use the [Endangered Species Act] to regulate greenhouse gas emissions from automobiles, power plants and other sources," Kempthorne said.

In August, Kempthorne made good on that promise when the department proposed regulatory changes that many environmentalists say would gut the very law aimed at protecting species and their critical habitat. Under the proposed revisions-which do not need congressional approval-federal agencies would no longer be required to consult with scientists at Interior's Fish and Wildlife Service before green-lighting construction projects. Many projects produce greenhouse gases scientists believe contribute to climate change, but agencies could forge ahead if they believe protected species would be out of harm's way.

When Kempthorne announced the changes, FWS Director H. Dale Hall said, "We are not being good stewards of our resources when we pursue consultation in situations where the potential effects to a species are either unlikely, incapable of being meaningfully evaluated, wholly beneficial, or pose only a remote risk of causing jeopardy to the species or its habitat." Because it is not possible to draw direct causal links between greenhouse gas emissions in one area and their effect on species in a distant location, Hall and other Interior officials maintain it is inappropriate for FWS to pass judgment on those activities under the Endangered Species Act.

The Fish and Wildlife Service, along with the National Marine Fisheries Service at the Commerce Department's National Oceanic and Atmospheric Administration, is responsible for evaluating the scientific data that backs up listing decisions. Commerce and Interior jointly proposed the regulatory changes.

Interior also proposed a formatting change to the list, which environmentalists say would limit protection to species' current geographic range, which often are greatly diminished from their historical range. At press time, the department was still evaluating more than 200,000 public comments on the revisions. Interior planned to publish final rules by late November, in time to go into effect before the Obama administration takes office in January. The next administration could undo the changes, but it would be time-consuming and costly.

"The very agencies that have often resisted efforts to adjust their projects to accommodate the needs of rare wildlife would now be put in charge of deciding whether any adjustment is needed," said Michael J. Bean, an attorney and senior director of the wildlife program at the Environmental Defense Fund, an advocacy group in Washington. "Although the Bush administration claims its proposal would make only narrow changes to existing regulations, these unprecedented changes would have broad consequences, imperiling hundreds of endangered species nationwide."

Thus, a decision to designate the polar bear as a threatened species under the law became the catalyst for changes many believe could undo the law itself.

Driven by Lawsuits

Congress passed the Endangered Species Act in 1973. Under the law, the Fish and Wildlife Service maintains a list of species that are threatened and endangered. Once an animal, plant, fish or bug is listed (pest insects are not covered by the law), humans are prohibited from harassing or harming it. Federal agencies are required to conserve listed species, taking "all methods and procedures which are necessary to bring listed species to the point of recovery." As of Nov. 7, 1,358 species were listed as threatened or endangered (309 threatened; 1,049 endangered). An endangered species is one that is in danger of extinction throughout all or a significant portion of its range. A threatened species is one that is likely to become endangered in the foreseeable future.

To many environmentalists, the law has been enormously successful in protecting vulnerable wildlife. But to others, such as the National Center for Public Policy Research, it is regarded as a costly failure because it has generated hundreds of lawsuits and few species have been recovered in the law's 35-year history.

"The truth lies somewhere between those two assessments," says Bryan Arroyo, assistant director for endangered species at the Fish and Wildlife Service. "If you measure success just by the number of species that have been recovered in 35 years of implementation, we have recovered about 20 species. However, you have to put that in context. Most of the species listed today have been impacted by human activities much longer than 35 years." Arroyo also points out that while few species have been recovered, listed species have not been lost to extinction either. "The law does work," he says.

That's not to say it works particularly well. FWS is engaged in 55 lawsuits over listing decisions. In fiscal 2008, which ended Sept. 30, the service was served with 42 new court cases-the most in a single year. "There's no end in sight to the litigation challenges," Arroyo says.

"That obviously drives our workload. When you have court order deadlines or settlement agreement deadlines you must meet those first, therefore they go to the top of the priority list, particularly when it comes down to listing and the designation of critical habitat."

Virtually every decision made (and even some not made) under the Endangered Species Act is protested by someone. Consider the polar bear: It was a 2005 lawsuit filed by the Center for Biological Diversity in Tucson, Ariz., that led Interior to list the species as threatened in May. Then the center, along with Greenpeace and the Natural Resources Defense Council, sued Interior to designate critical habitat for the bear. In August, Alaska, led by Gov. Sarah Palin, filed suit against Interior seeking to overturn the polar bear listing, citing economic harm if oil and gas development is curtailed in the state. Also in August, five industry groups, including the American Petroleum Institute, the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Mining Association, and the American Iron and Steel Institute, filed suit against Kempthorne and the Fish and Wildlife Service to overturn the polar bear listing, arguing the decision would unlawfully regulate greenhouse emissions in Alaska.

The polar bear is hardly unique in generating litigation. The northern spotted owl has long been a symbol of the conflicting interests inherent in the law. The logging industry in parts of the Pacific Northwest was decimated after the owl was listed 18 years ago. The economic turmoil that ensued engendered tremendous bitterness in many Western communities toward the environmental movement. Nearly two decades later, the owl is still struggling and the courts are still weighing in on the government's recovery plans.

Even positive gains can generate a lawsuit. In March, FWS tried to remove the northern Rocky Mountain wolf from the endangered species list because the agency believes wolf populations have recovered sufficiently and no longer warrant protection. But the U.S. Federal District Court in Missoula, Mont., issued a preliminary injunction reinstating the protections for wolves in Montana, Idaho, Wyoming and parts of Utah, Oregon and Washington.

"All this litigation activity detracts from our ability to focus further resources on the ground where they count," Arroyo says.

Fewer Listings

Under the Bush administration, new listings have slowed to the lowest rate in the law's history. Before Kempthorne listed the polar bear this year, the department had gone more than two years without listing a single species-"the longest drought in listing in the history of the ESA," says Francesca Grifo, a senior scientist with the Union of Concerned Scientists in Cambridge, Mass. The Center for Biological Diversity found that the Bush administration listed species at a rate of about eight per year-far lower than the Clinton administration's average of 62 per year or of the first Bush administration's average of 56 species per year.

"The numbers speak for themselves," says Arroyo. "This administration has had a different focus. The administration's approach was to take a more cooperative approach [with private landowners, businesses and other agencies] to conserving species. Obviously there's a lot of criticism to this approach if you read that to be a dereliction of the listing process."

That's exactly how environmentalists read it. "Time and time again, when scientific knowledge has appeared to be in conflict with its political goals, the current administration has manipulated the process through which science enters into its decisions," says Grifo. "This has been accomplished by placing people who are professionally unqualified or who have clear conflicts of interest in official posts, by censoring and suppressing reports by the government's own scientists, and by actually omitting or distorting scientific data."

All those things happened in the case of Julie MacDonald, who was the Interior Department's deputy assistant secretary for fish, wildlife and parks until she resigned in May 2007, after a scathing inspector general investigation into allegations about her heavy-handed management style revealed much greater problems. The IG found that MacDonald, an engineer with no experience in biology, bullied employees, altered some scientific reports involving potentially endangered species, and shared confidential information with friends in the agriculture and energy industries.

According to the IG, one former director of the endangered species program at Interior said MacDonald did not want to accept petitions to list species as endangered, and that she did not want to designate critical habitats: "The overall effect was to minimize the Endangered Species Act as much as possible or ensnare it in court litigation, which happened often."

Hall, director of the Fish and Wildlife Service, told the IG he had been in a "running battle" with MacDonald over her interference in operations since October 2005, when he was sworn in. He cited her involvement in a study of the southwestern willow flycatcher, a small bird listed as endangered since 1995. Biologists at Fish and Wildlife had determined that the flycatcher's range from its nest was 2.1 miles. MacDonald argued with field personnel that 1.8 miles was more accurate. She had the bird's range lowered because she was concerned that it would extend into California, where her husband had a ranch. In another example, MacDonald forced a reduction in critical habitat miles in the Klamath River Basin in Northern California from 296 miles to 42 miles.

The IG cited many other examples of MacDonald's inappropriate intervention in scientific reports and decisions regarding listed species or those proposed for listing. After her resignation, FWS officials reviewed listing decisions made during her tenure and determined that eight needed to be reworked as a result of her involvement. But the Government Accountability Office reported last spring that other officials also might have improperly influenced decision-making in the endangered species program. Now more than 80 decisions are under review for political interference.

During the two-year period when no new species were added to the list, the Union of Concerned Scientists found that dozens of petitions and reviews of potentially endangered species were denied. "Our faith that those petition denials were done in a fair and scientifically accurate process is greatly eroded," Grifo said.

The Center for Biological Diversity noted in its fall 2008 newsletter that if the Bush administration follows through on rewriting endangered species regulations as Kempthorne proposed in August, those policies won't be easily undone by a new administration. That doesn't mean the center and other environmentalists won't fight changes they see as undermining the nation's flagship environmental law: "If we must, we'll go to court to defend it," the newsletter stated.

Modernizing the Law

The Endangered Species Act has not been significantly altered for more than 20 years, and attempts to do so have been highly politicized. Arroyo, a biologist with nearly two decades of involvement in the endangered species program, does not share the Bush administration's worries that the law will provide a backdoor to regulating climate change. But he is careful to steer clear of any political discussion on the topic. Instead, he's focused on something much more ambitious-a broad overhaul of the law through regulatory changes.

"If you look at advances in conservation biology between 1973 and 2008, I think the act needs an overhaul," he says, noting that the law's goals should remain the same. For example, he says, "As we've implemented the act over the last 35 years or so, we have learned that private landowners are a key partner. However, the law really does not speak to that. It's still in the 1973 mind-set that we have a crisis in the country, and we'll start with a regulatory approach."

He's not optimistic that Congress will be able to overhaul the law any time soon, because it's so fraught with partisan baggage and emotion. During the last 18 months, under Hall's direction, Fish and Wildlife Service biologists have been crafting a package of regulatory recommendations they believe will enable them to implement the law more effectively, without engendering debilitating litigation. They are optimistic the Obama administration will be receptive to advice from agency biologists. "The comprehensive package [of recommendations] is in my pocket," Hall says. "Hopefully in the next few months we'll be able to work with the new administration to bring the views of those career people to the light of day."