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SCB Launches Initiative to Reform and Strengthen The Implementation of the Endangered Species Act

June 12, 2012.  Today, the Society for Conservation Biology, on behalf of its North America and Marine Sections submitted a formal petition to the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) requesting that these agencies restore the global geographic scope of the Endangered Species Act’s consultation requirement.

Under Section 7 of the Endangered Species Act (ESA), all agencies must consult with FWS and NOAA on actions that might jeopardize the existence of threatened and endangered species.  Shortly after the ESA was passed, the FWS and NOAA established regulations that made clear that all federal agencies would consult on their actions whether they occurred within the United States or overseas.  In 1986, the Reagan administration weakened those regulations by eliminating the requirement that Federal agencies consult on actions that they might take that could affect species that the U.S. lists as endangered or threatened which occur in foreign nations.  The 1986 changes were found to be invalid by the Eighth Circuit Court of Appeals, but in a momentous decision, which occurred 20 years ago to this day, a divided Supreme Court preserved the 1986 regulations on a procedural technicality.   On the 20th anniversary of this Supreme Court decision, SCB is beginning the formal process to reform and strengthen the ESA’s implementing regulations by submitting its petition today.

The Administrative Procedure Act (APA) gives each citizen and organization the right to petition any agency of the Federal government “for the issuance, amendment, or repeal of a rule.”  The APA further requires the petitioned agency to fully consider the merits of a petition and respond within a reasonable period of time.  Accordingly SCB is invoking this right to compel the FWS and NOAA to consider whether the regulations that implement the ESA require reform.  Given the continued extinction crisis both within the United State and around the world, SCB believes that these changes are warranted.

This petition represents the beginning of a second phase in a broader effort by SCB to reform, strengthen, and modernize the regulations that implement the ESA.  While the ESA remains one of the most comprehensive laws ever passed to prevent extinction, the regulations that implement the ESA have mostly stood unchanged since 1986, a year before the founding of the Society for Conservation Biology.  Many of the advances in knowledge from the field of Conservation Biology and its related disciplines have yet to be incorporated by the FWS and NOAA in the agencies’ implementation of the ESA.  In late 2008, SCB briefed the Obama Transition team on a set of recommendations for improving the implementation of several U.S. laws including the ESA. Since then we have worked with the FWS, NOAA,  and other agencies as they have addressed some, but not all, of the reforms we suggested  in 2008.  In order to expedite the process of implementing these proposed reforms, we are providing scientific and technical drafting advice through this formal petition.  In the months to come, SCB plans to file additional petitions asking the FWS and NOAA to revise and strengthen other aspects of the ESA’s implementation regulations.

Read the petition to the Department of Interior and Department of Commerce HERE.

Learn more about our efforts to strengthen the ESA HERE.