ND law scholars consider proposed changes in environmental law

by Michael O. Garvey


Earlier this week, the Bush administration proposed changing the Endangered Species Act (ESA) by eliminating the independent scientific reviews it has required for dam and highway construction and other federal projects affecting the plight of vulnerable species.

Environmentalists and congressional Democrats have sharply criticized the proposal, which would remove the laws requirement that federal agencies responsible for such projects must consult with the Department of Fish and Wildlife Services (FWS). According to a spokesman for one group, the Defenders of Wildlife, the proposal amounts toa case of asking the fox to guard the chicken coop.

According to John C. Nagle, John N. Matthews Professor of Law in the Notre Dame Law School,the idea of streamlining the consultation process and targeting the FWS limited resources is appealing.But, as Interior Secretary Dirk Kempthorne observed when he made his proposal, any change to the ESA is controversial.That has become especially true for environmentalists who distrust any actions of the Bush administration.

According to Nagles colleague Alejandro E. Camacho, associate professor of law in the Notre Dame Law School,the consultation requirement is one of the cornerstones of the ESA, and the idea that the administration is calling the change narrow would be laughable if it was not so disconcerting. The change would be far-reaching and eliminate a key check on public agencies whose primary missions often lead them to discount already taxed ecological communities in favor of resource exploitation.

What is really needed is a careful revision of the ESA’s mechanisms by Congress,Nagle said, adding that previous efforts to amend the ESA have beenunsuccessfulbecause of the conflicting views of the ESA as the premier example of out-of-control government interference with property rightsaccording to many westerners and developersor as the most effective tool for protecting biodiversity that suffers from chronic underfunding and underenforcementaccording to many easterners and environmentalists.

Whatever effects on ESA would result from the changes proposed by the administration, Nagle insisted thatonly Congress is capable of adapting the law to 21st century challenges such as climate change, invasive species and suburban sprawl.

Nagle, the author ofLaws Environment: How Environmental Law Affects the Environment,teaches, speaks and writes on numerous issues related to environmental law and legislation. He also has received Fulbright Awards to teach environmental law and property law at the Tsinghua University Law School in Beijing and at Fudan University in Shanghai.

A member of the Notre Dame faculty since 2005, Camacho has written and lectured extensively on regulatory innovation in environmental, land use and local government law.Before devoting himself wholly to legal scholarship and teaching, he was an associate in the Environment, Land, and Resources Department of the Latham&Watkins law firm in Los Angeles.

_ Contact: Professor Camacho at 574-631-2727 or_ " acamach1@nd.edu ":mailto:acamach1@nd.edu ; and Professor Nagle at 574-631-9407 or " Nagle.8@nd.edu ":mailto:Nagle.8@nd.edu

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