Rule Changes May Reduce Damage Caused By Endangered Species Act

The Endangered Species Act has become a classic illustration of the law of unintended consequences. Starting from a premise that may have seemed uncontroversial when the statute was passed, the Act has developed into an economic nightmare that obstructs development and in some instances probably contributes to the extinction of species. Most recently, the polar bear was declared “endangered” because of global warming, despite that species’ booming population. The effect could be to subject an unlimited range of public and private actions to the whim of government regulators and courts, on the ground that anything that causes carbon to be emitted–which is pretty much everything–threatens the polar bear.

The Bush administration is now trying to mitigate the damage being caused by the Endangered Species Act by promulgating new rules that among other things would “bar federal agencies from assessing the emissions from projects that contribute to global warming and its effect on species and habitats.” More broadly, the new rules would allow federal agencies to make their own assessments of impact on endangered species, rather than being required to consult with the the Fish and Wildlife Service or the National Marine Fisheries Service.

The AP account of the rules linked above is not coherent enough to say much more, but Hugh Hewitt is an expert in this area of the law and will no doubt be able to comment authoritatively on the impact of the proposed new regulations.

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