Death by Definition: Save the Endangered Species Act! Now!


The Endangered Species Act
is our primary legal tool for environmental protection.

We have until September 15 -- about
a week -- to save the Endangered Species Act.

Not just some species, but
the Act itself! Bush administration officials are proposing redefinitions
of terms that would allow conservative appointees in federal agencies
to virtually the destroy the Act.


The Endangered Species Act
is our primary legal tool for environmental protection.

We have until September 15 -- about
a week -- to save the Endangered Species Act.

Not just some species, but
the Act itself! Bush administration officials are proposing redefinitions
of terms that would allow conservative appointees in federal agencies
to virtually the destroy the Act.

Their goal is to allow proposed
projects to proceed even if such projects would kill off endangered
species or place them or their habitats in jeopardy.

If the changes are not effectively
challenged by September 15, they will go into effect, and, Goodbye Species!

Act now: Go to the end of this
article for instructions. We need the public to flood the agencies involved
with comments opposing the redefinitions and rule changes.

When the Cat's Away

While our attention has been
turned elsewhere, the Endangered Species Act, our major environmental
protection legislation, is being gutted -- now.

Not by Congress. Not by the
courts. Not even by Bush's executive orders. It is being destroyed
by redefinition, by a series of linguistic tricks.

Causation, within an ecological
system, is almost always systemic in nature. That is, there are disparate
contributing causes with disparate contributed effects in various places
at different times. Direct causation is rare. Direct causation
occurs when there is a single act at a given time and place that results
in a single effect at that time and place.

For example, a species of frog
limited to a local wetland could be completely wiped out by a condo
development with that wetland filled in. Direct causation.

But frogs around the country
are dying out due to a complex combination of factors in different places
at different times. Systemic causation.

Progressives and conservatives
tend to think differently about causation. Conservatives, who think
in terms of individual not social responsibility, tend to think in terms
of direct causation -- what an individual does. Progressives, who think
in terms of social as well as individual responsibility, tend to think
in terms of systemic causation. For example, if you ask what the causes
of unemployment are, conservatives will tend to say people who aren't
willing to do hard work, or willing to get the skills they need. Progressives
will talk first about social causes: lack of education, lack of opportunities
to acquire needed skills, corporate greed or insensitivity, and so on.

The present Endangered Species
Act is realistic about systemic causation: disparate causes that contribute
to disparate future effects count as "causation." But imagine what
would happen if "causation" were redefined to mean only direct causation.
Development projects now forbidden because they contribute significantly
to future disparate loss of species and species habitat would now be
allowed. Lots and lots of disparate projects at disparate places and
times would be allowed. Their collective systemic effects could wipe
out a great many habitats and species.

This is exactly what is being
proposed by the Departments of the Interior and Commerce, as published
in the Federal Register / Vol. 73,
No. 159 / Friday, August 15, 2008 / Proposed Rules. They want to redefine causation so
that only direct causation (they call it "an essential cause") counts
as causation that jeopardizes the existence of a species listed under
the Endangered Species act, or jeopardizes that species' critical
habitat. The effect is that proposed development projects can contribute
significantly to the destruction of habitat and the extinction of species,
provided that they do not directly cause the elimination of a species,
or directly reduce the population of a species or extent of its habitat-something
that rarely happens. The result is that almost all proposed developments
that were previously understood as "causes" of habitat destruction
or species extinction will no longer be seen as "causes" at all
and will be permitted. The reason will be that "cause" itself will
have been redefined.


Up until now, the Endangered
Species Act was governed by certain rules. The rules involved the following:

  • A federal "action
    agency" (for example, FERC-the Federal Energy Regulatory Commission)
    which proposed a project.. An example of such a project might be the
    granting a license to operate a hydroelectric power plant.
  • A "service"-
    either the Fish and Wildlife Service for inland species or the National
    Marine Fisheries Service for marine species-whose job is the protection
    of plants, fish and wildlife and the gathering of information relevant
    to that protection.
  • A "consultation"-a
    well-defined process in which an agency consults a service about a proposed
    project if it "may affect" species listed under the Act as threatened
    or endangered, in order to gather relevant information for the protection
    of those species.
  • A Biological Assessment-a
    document written by the federal agency or its designated representative
    (perhaps, the hydroelectric project's owner) and presented to the
    relevant service . This document analyzes what the consequences of the
    proposed project might be for any threatened or endangered species the
    project might affect.
  • A Biological Opinion
    written by the relevant Service which states whether there is jeopardy
    to listed species or their critical habitat. If there is jeopardy, the
    Biological Opinion sets forth measures that must be taken to mitigate
    project effects, or, if the effects cannot be mitigated, stops the project..

Under the proposed rule change,
the federal action agency could use, in place of a Biological Assessment,
a document that it assembled for other purposes, as long as the information
about effects on listed species was contained in it. While this might
make it easier for the action agency, it makes is more difficult and
time-consuming for the Service, which then has to distill and reassemble
on its own the information relevant to listed species.

Under the new rules, many such
consultations would no longer even be required. The agency itself would
be allowed to make that determination. In the past, the consultation
determined whether or not there was jeopardy or damage to critical habitat.
Under the new rules, the party proposing the project would determine
whether it even needs to consult based on whether it itself,
and not the Service, thinks there may be jeopardy or damage to critical
habitat. In the past, a federal agency that proposed a project had to
the notion that its project would do no harm to listed species.
If the rules are changed, it will merely have to assert
that it will do no harm.

The Endangered Species Act
also permits "informal consultation," in which an agency informally
consults with a service to see if a proposed action is reasonably certain
to affect listed species. At the end of the informal consultation, which
has no defined timeline, the agency is either required to enter into
formal consultation, and prepare a Biological Assessment, or it is absolved
by the Service from doing so. Under the new rules, this process would
be limited to sixty days, an almost impossible timeline for the Services,
which for years have been underfunded and understaffed. The new rules
also state that if this timeline is missed, formal consultation cannot
be required.

The Bush appointees who control
the Services today say that it is appropriate for other federal agencies
to take on some of the role that was up till now reserved to the Services.
These appointees say that after 35 years of experience, the other federal
agencies know a problem when they see it. The reality is that, even
if the Services are in the future headed up by more progressive leadership,
conservative directors of other federal agencies will still have the
opportunity to evade consultation, killing off or jeopardizing endangered

Death by Definition

There it is. We have until
September 15 to act.

The proposed new rules state
that it if an agency allows the death of a plant or animal that is part
of a listed species (or, in the language of the ESA, "take"), or
the reduction of critical habitat, that it can be punished. This supports
the conservative viewpoint that the way one avoids bad things is by
a system of rewards and punishments. But the idea of the ESA is not
to punish people after there is harm or reduction of habitat; the goal
is to manage so that those things don't happen in the first place.
If a species goes extinct, punishing the agency won't bring it back.

In addition, this conservative
viewpoint presupposes that the burden of proof will be upon the Service
to show that there has been take; in other words, we are back to having
to show direct causation. If there is a combination of issues that may
have contributed to the death of steelhead from the example described
above, it would be necessary to show that a specific action resulted
in the death of a specific fish. As it stands now, the combination of
low flows, high water temperatures, lack of shallow rearing habitat
for young fish in non-summer months, lack of high flows to help fish
get from the river to the ocean, ocean conditions, and so on, all contribute
to poor numbers of steelhead returning to the river to spawn. It is
difficult, though not impossible, to show that low flows in the river
in the summer caused take. However, looking at the matter proactively,
from the point of view of the present options available to NMFS, the
Service can require higher flows in the river to eliminate at least
that part of the problem. It might not be definitive, or in the terms
of the present proposed rule, "essential," but it can substantially
improve the chance of increased survival for the fish that are present
in the river.

Polar Bears

These changes proposed as parting
shots by the Bush appointees at the head of the Fish and Wildlife Service
and the National Marine Fisheries Service are not about clarity, or
eliminating unnecessary consultations, or the experience gained in thirty-five
years of the Endangered Species Act. They are part of a concerted effort
by conservatives to change the fundamental way that science is viewed
and used in our society.

The language in the proposed
rule change was reverse-engineered to address a huge looming issue:
polar bears are clearly threatened by the systemic cause of ecological
damage par excellence, global warming. But the evidence and the
consequences of the systemic causation of environmental degradation
are everywhere. Even if the conservatives succeed in truncating what
scientists do and are allowed to say, and in limiting the Endangered
Species Act by a linguistic trick, systemic causation, in the world
of environmental science, will always be the ultimate inconvenient truth.

Act Now!

Here are some Talking Points:

  • You are against
    the proposed rule changes because they weaken the Endangered Species
    Act nearly to the point of nonexistence.
  • Environmental
    systems mostly work by systemic causation, with many indirect causes,
    not by "essential causation." The change to
    "essential causation" opens the door to an indefinitely large number
    of projects that can jointly put endangered species in jeopardy.
  • The change in
    "consultation" rules will de facto eliminate the gathering of information
    relevant to protecting species.

Here's how you get your comments

Go to and use the search terms: "50 CFR
Part 402 proposed rule."

The proposed changes are in
Document # EB - 18938

To see the proposed changes,
click on "View this document."

Click on "Send a comment
or submission" to write your comment.

Note that plain e-mails will
not be considered. This is another way public input is being limited.

Write your comments before
September 15, 2008.

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