Law & Order


Secretary of the Interior Dirk Kempthorne issued a proposal to allow a federal agency to approve a commercial development project (road, power plant, homes, etc.) if it determines on its own that the project will only have an indirect effect on a threatened or endangered species. 

Under current law, all federal agencies must first consult the U.S. Fish and Wildlife Service or the National Oceanic and Atmospheric Administration if there is the potential to impact an endangered species. This has lead to a review process that can last months or years and then be subject to lawsuits. 

There is general consensus in Congress that the Endangered Species Act (ESA) needs to be updated since more money has been spent on ESA lawsuits than in protecting plants and animals. Simultaneously, SEMA contends that the ESA has been responsible for closing millions of acres of land without accomplishing its mission of protecting species. The issue is of consequence to SEMA members that market products for use on off-highway vehicles since OHV access has been denied to roads and trails in ESA-protected areas. 

Lawmakers have been unable to agree on a common approach for legislative changes so the Bush Administration is seeking ways to accomplish these goals, if possible, through regulations. For example, the proposed rule would limit the ability of the government to use the ESA as a tool for regulating climate change (eg., linking reduced habitat to greenhouse gas emissions from a power plant).  A final rule is expected to be issued by the end of 2008.

For additional information, contact Stuart Gosswein at