Imagine, for a moment, a particular North Pacific right whale. Now 50 feet long and weighing almost 100 tons, it has been “endangered” since 1970, witnessed an international moratorium on commercial whaling in 1986, and has watched oceans warm. Two federal agencies are charged with protecting this species and nearly 2,000 others, from the Oahu tree snail to the golden-cheeked warbler. Another agency aims to tap the oil and gas resources beneath the whale’s icy domain in Alaska’s Bristol Bay. Part of what’s kept this agency in check—the Endangered Species Act (ESA)—has been rendered ineffectual, just in time for a 5.6-million-acre drilling lease sale.
For now, fortunately, that’s all hypothetical. But since the U.S. Department of the Interior proposed changes to the ESA this August, scenarios like this have been playing out in the minds of worried environmentalists. “If [the changes] were approved, it would be the worst attack weakening the Endangered Species Act that we’ve seen in its history,” says John Kostyack, the National Wildlife Federation’s director of wildlife conservation and global warming.
Passed in 1973, the ESA requires cooperation between agencies that manage wildlife (the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, or NMFS) and “action agencies,” like the U.S. Forest Service, which manage a range of resources and interests. An action agency must consult with a wildlife agency if what it wants to do—dam a river, build a highway, or drill for oil in Bristol Bay—could affect a species listed as endangered or threatened.
The proposed changes, which don’t require congressional approval, are nuanced and mostly concern the consultation process. Under the original law, before the Minerals Management Service (MMS), an action agency, can lease Bristol Bay to oil and gas companies, NMFS biologists are required to determine that the development won’t hurt listed species like the right whale, whose habitat overlaps with the leasing area. Under the new rules, one of two things could happen: If the MMS foresaw possible harm, the agency would consult the NMFS as usual. However, if MMS officials concluded that the project wouldn’t negatively affect the whale, they could skip the entire formal review and simply inform the NMFS of their decision. In this case, the NMFS would have 60 days to concur, disagree, or ask for more time. If it failed to meet that deadline, the project could move forward.
The Bush administration maintains that the changes would ease the backlog of consultations, and contends that the action agencies’ 30 years of experience with the ESA qualifies them to make their own calls. But Noah Greenwald, the Center for Biological Diversity’s science director, calls the backlog claim “ridiculous,” and says removing wildlife agencies from the consultation process “essentially remove[s] scientific review.”
For now his group, Audubon, and other environmental organizations are running awareness campaigns, lobbying against the action, and collecting public feedback to submit during the comment period, slated to end October 15. They’re also hoping that if the rule change goes through, the next administration will reverse it. Yet even if places like Bristol Bay do open for leasing under a revised ESA, says Audubon Alaska executive director Stan Senner, he’d hope that the MMS would consult with the NMFS first, even if it doesn’t have to, because the action agency will still be held responsible if the project harms listed species. Even so, Senner is concerned. “By not requiring consultation, you eliminate one of the key checks and balances in the process,” he says. “It really is a fox-and-chicken-coop kind of deal.” Meanwhile, the right whale heads toward its wintering grounds, blissfully unaware.—Alexa Schirtzinger
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