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Gutting the law

Tribune Media Services

The following editorial appeared in the St. Louis Post-Dispatch on Tuesday, Aug. 19:


Let's face it, the Endangered Species Act can create quite a burden. If your goal is to build dams or open federal land to mining, logging and oil drilling, all those threatened animals and plants just get in the way.

Congress gets in the way, too, stubbornly insisting that the Endangered Species Act be obeyed. In part, that means that independent experts have to review any project proposed for federal lands for its impact on endangered species.

So now comes the Bush administration with a parting gift to its many friends in the timber, development and extraction industries: An end-run around Congress.

In what Interior Secretary Dirk Kempthorne described last week as a "narrow regulatory change," the administration has proposed changing that picky requirement that independent botanists and biologists get involved in reviewing new projects.

Instead, the projects will be reviewed by the very people proposing them: Federal agencies like the U.S. Army Corps of Engineers or the Office of Surface Mining, whose expertise lies elsewhere.

In May, White House Chief of Staff Joshua Bolten wrote a memo to federal agencies outlining what he called a "principled approach to regulation as we sprint to the finish" of Bush's final term. Except under "extraordinary circumstances," any new regulations had to be proposed _ issued in draft form by publication in the Federal Register _ by June 1.

Apparently, new rules gutting an important protection in the Endangered Species Act qualify as an "extraordinary circumstance." But Kempthorne said the new rules he proposed last week are very limited in scope.

His new rules will "provide clarity and certainty" to the Endangered Species Act. In fact, the law's purpose and process already are clear. The administration's changes would weaken it significantly.

This is hardly the first time the administration, having failed to persuade Congress to change environmental laws it dislikes, has tried to recast the law by issuing new regulations.

It took that route in 2005 to weaken parts of the Clean Air Act. With a chilling Orwellian flourish, the administration dubbed its new plan the "Clear Skies Initiative." In 2006, federal courts struck down a similar effort that would have given the Environmental Protection Agency authority to approve pesticides without input from Fish and Wildlife Service scientists.

The Endangered Species Act has helped rescue the bald eagle, other animals and plants from the brink of extinction over the past three decades. This latest assault is certain to face the same legal challenges that derailed the pesticide regulations. It should suffer the same fate, too.

Regulations written in haste by an administration headed for the exits _ no matter which administration makes them _ make lovely parting gifts for special interests. But they make for terrible government.


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