The Volokh Conspiracy - FWS Staff to Review Seven Comments a Minute:

In August, the Bush Administration proposed substantial revisions to the regulations governing federal agency consultations with the Fish & Wildlife Service and National Marine Fisheries Service regarding the potential impact of federal agency actions on endangered and threatened species under Section 7 of the Endangered Species Act. Section 7 is the portion of the ESA that prohibits federal agencies from authorizing or undertaking actions that could harm endangered or threatened species. Toward this end, it requires federal agencies to consult with the FWS or NMFS to ensure its actions will not harm species. The proposed rules are designed to give federal agencies more discretion about when and whether to consult with FWS or NFMS, thereby limiting the effect that Section 7 has on agency action. As the Interior Department explained when the proposal was issued:

These changes are designed to reduce the number of unnecessary consultations under the ESA so that more time and resources can be devoted to the protection of the most vulnerable species. Under the proposed rule, agency actions that could cause an adverse impact to listed species are still subject to the consultation requirement.

The proposed rule is consistent with the FWS current understanding that it is not possible to draw a direct causal link between greenhouse gas (GHG) emissions and distant observations of impacts affecting species. As a result, it is inappropriate to consult on a remote agency action involving the contribution of emissions to global warming because it is not possible to link the emissions to impacts on specific listed species such as polar bears.

The proposal itself is quite extensive, and generated thousands of comments - over 200,000 in fact. Normally this would result in a drawn out rulemaking process, as all the submitted comments must be reviewed and considered. In this case, however, the Interior Department is eager to get the new rules finalized before the Bush Administration leaves office. Senator Obama has indicated his disagreement with the regulatory revision and a finalized rule would be more difficult for an Obama Administration to reverse. So, according to an AP report, the FWS has assembled a special team to review the comments on the rule.

The Fish and Wildlife Service has called a team of 15 people to Washington this week to go through letters and online comments about a proposal to exclude greenhouse gases and the advice of federal biologists from decisions about whether dams, power plants and other federal projects could harm species. That would be the biggest change in endangered species rules since 1986.

In an e-mail last week to Fish and Wildlife managers across the country, Bryan Arroyo, the head of the agency's endangered species program, said the team would work eight hours a day starting Tuesday to the close of business on Friday to sort through the comments. . . .

At that rate, according to a [House Natural Resources] committee aide's calculation, 6,250 comments would have to be reviewed every hour. That means that each member of the team would be reviewing at least seven comments each minute.

It usually takes months to review public comments on a proposed rule, and by law the government must respond before a rule becomes final.

Even considering the fact that a large portion of the comments were form-letters (or their equivalent) generated by environmental activist groups, reviewing 200,000 comments in 32 hours is a stretch — and the public exposure of this process will only make it more difficult for the Interior Department to defend its rules. I was skeptical that the Administration's proposed changes will survive judicial review before, as I do not believe the ESA's consultation requirements are as flexible as the Bush Administration would like, particularly considering the way in which these requirements have been interpreted in federal court. But even if I am wrong about the legality of the proposed changes, agency failure to provide adequate consideration of public comments in the rulemaking process is just asking for more trouble. Those on the FWS comment review team better be up on their Evelyn Wood.

UPDATE: According to this report, the FWS actually received 300,000 comments, but approximately 100,000 of which were form comments of some sort generated by interest groups.

	[Jonathan Adler, October 22, 2008 at 11:44pm] Trackbacks FWS Staff to Review Seven Comments a Minute: In August, the Bush Administration proposed substantial revisions to the regulations governing federal agency consultations with the Fish & Wildlife Service and National Marine Fisheries Service regarding the potential impact of federal agency actions on endangered and threatened species under Section 7 of the Endangered Species Act. Section 7 is the portion of the ESA that prohibits federal agencies from authorizing or undertaking actions that could harm endangered or threatened species. Toward this end, it requires federal agencies to consult with the FWS or NMFS to ensure its actions will not harm species. The proposed rules are designed to give federal agencies more discretion about when and whether to consult with FWS or NFMS, thereby limiting the effect that Section 7 has on agency action. As the Interior Department explained when the proposal was issued: These changes are designed to reduce the number of unnecessary consultations under the ESA so that more time and resources can be devoted to the protection of the most vulnerable species. Under the proposed rule, agency actions that could cause an adverse impact to listed species are still subject to the consultation requirement. The proposed rule is consistent with the FWS current understanding that it is not possible to draw a direct causal link between greenhouse gas (GHG) emissions and distant observations of impacts affecting species. As a result, it is inappropriate to consult on a remote agency action involving the contribution of emissions to global warming because it is not possible to link the emissions to impacts on specific listed species such as polar bears. The proposal itself is quite extensive, and generated thousands of comments - over 200,000 in fact. Normally this would result in a drawn out rulemaking process, as all the submitted comments must be reviewed and considered. In this case, however, the Interior Department is eager to get the new rules finalized before the Bush Administration leaves office. Senator Obama has indicated his disagreement with the regulatory revision and a finalized rule would be more difficult for an Obama Administration to reverse. So, according to an AP report, the FWS has assembled a special team to review the comments on the rule. The Fish and Wildlife Service has called a team of 15 people to Washington this week to go through letters and online comments about a proposal to exclude greenhouse gases and the advice of federal biologists from decisions about whether dams, power plants and other federal projects could harm species. That would be the biggest change in endangered species rules since 1986. In an e-mail last week to Fish and Wildlife managers across the country, Bryan Arroyo, the head of the agency's endangered species program, said the team would work eight hours a day starting Tuesday to the close of business on Friday to sort through the comments. . . . At that rate, according to a [House Natural Resources] committee aide's calculation, 6,250 comments would have to be reviewed every hour. That means that each member of the team would be reviewing at least seven comments each minute. It usually takes months to review public comments on a proposed rule, and by law the government must respond before a rule becomes final. Even considering the fact that a large portion of the comments were form-letters (or their equivalent) generated by environmental activist groups, reviewing 200,000 comments in 32 hours is a stretch — and the public exposure of this process will only make it more difficult for the Interior Department to defend its rules. I was skeptical that the Administration's proposed changes will survive judicial review before, as I do not believe the ESA's consultation requirements are as flexible as the Bush Administration would like, particularly considering the way in which these requirements have been interpreted in federal court. But even if I am wrong about the legality of the proposed changes, agency failure to provide adequate consideration of public comments in the rulemaking process is just asking for more trouble. Those on the FWS comment review team better be up on their Evelyn Wood. UPDATE: According to this report, the FWS actually received 300,000 comments, but approximately 100,000 of which were form comments of some sort generated by interest groups.