An investigation by the Inspector General (IG) of the U.S. Department of Interior revealed substantial evidence that Julie MacDonald, Deputy Assistant Secretary for Fish, Wildlife and Parks, had been heavily involved in editing and reshaping scientific reports from the Endangered Species Programs field scientists. A copy of the IG’s report is available online at: http://www.biologicaldiversity.org/swcbd/PROGRAMS/esa/pdfs/doi-ig-report_jm.pdf While the IG’s report found no evidence of illegal activity on the part of Ms. MacDonald, it noted that she has a civil engineering degree and no formal educational background in natural sciences. It also confirmed that on several occasions she leaked nonpublic information concerning the department’s activities to outside groups, including the California Farm Bureau Federation and the Pacific Legal Foundation. WHAT CONSIDERATION SHOULD BE GIVEN TO IMPACTS ON ENDANGERED SPECIES WHEN PROGRAM DELEGATIONS ARE MADE?: NAHB v. DEFENDERS OF WILDLIFE In June 2007, the U.S. Supreme Court reversed a decision of the Ninth Circuit requiring EPA to determine whether its delegation to a state of authority to operate a NPDES permit program under §402 of the Clean Water Act would jeopardize threatened or endangered species in violation of §7(a)(2) of the Endangered Species Act (ESA) by removing permitting from §7’s no-jeopardy requirement, which applies only to federal agencies. The Court rejected the notion that because §7(a)(2) of the Endangered Species Act was the later-adopted provision it impliedly added to the criteria for program delegations under §402 of the Clean Water Act. Noting that §402 mandates delegations of program authority whenever a state meets the nine criteria specified there, the Court gave Chevron deference to the agencies’ interpretation that §7 only applies to actions over which agencies exercise discretion. The Court distinguished TVA v. Hill (p. 870 of the casebook) – the famous “snail darter” case – as involving a project that was not mandated by Congress but rather discretionary to the agency involved. An edited version of the Court’s decision – National Ass’n of Home Builders v. Defenders of Wildlife, 127 S.Ct. 2518 (2007) – is available in our 2008-2009 Statutory and Case Supplement at p. 1123. On August 11, 2008, the U.S. Department of Interior proposed a significant change in the rules governing the inter-agency consultation process under the Endangered Species Act. U.S. Department of Interior, Interagency Cooperation under the Endangered Species Act, 73 FR 47868 (Aug. 15, 2008). The proposal would allow agencies to bypass independent review by the U.S. Fish and Wildlife Service or the National Marine Fisheries Service if they determine on the basis of their own assessments that their actions would not harm endangered species. Critics of the proposal note that many agencies do not have the wildlife biologists on staff to be able to make their own credible findings concerning impacts on endangered species. The director of the Fish & Wildlife Service argues that the proposal will allow the agency to focus its limited resources on the most important projects that will not be exempted by the rule from the consultation requirement. The decision is expected to relieve pressure on agencies to mitigate the impact of greenhouse gas emissions on species like the polar bear who are threatened by the effects of global warming. Environmentalists charged that the agency effectively is attempting to amend the ESA by regulation rather than legislation. Juliet Eilperin, Endangered Species Act Changes Give Agencies More Say, Washington Post, Aug. 12, 2008, p. A1 (available online at: http://www.washingtonpost.com/wp-dyn/content/article/2008/08/11/AR2008081102299.html |
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