If you just look at the surface, this year’s transition in U.S. administrations has been remarkable for its manners. The outgoing offers assistance to the incoming; the incoming expresses thanks and appreciation for the generosity of the outgoing. It’s all very civil and polite. Anyone observing from a distance would be impressed.

The problem comes when you scratch the surface and see that the administration going home is leaving a few very impolite surprises back in the house. The surprises even have their own name: midnight regulations. This isn’t the first president to use his last few weeks in office pushing through rules and regulations that run counter to the next administration’s policies and approaches, but some of what’s happening at midnight in 2008 is going to be staring us in the face long after the inauguration on January 20, 2009.

On December 11, a “minor” rule was finalized, which allows it to take effect in 30 days – well before the next administration takes office. This minor rule amends the Endangered Species Act, changing the standards for when a federal agency must consult the Fish and Wildlife Service and the National Fisheries Service about the potential effect of a proposed project on threatened or endangered species. The agency effectively gets to decide for itself when to consult with Fish and Wildlife or National Fisheries. Federal agencies have an added advantage in moving their projects forward. The minor rule limits the “indirect effects” they can consider, and specifically excludes other effects, in deciding whether or not their projects would negatively impact threatened or endangered species and excludes effects at can be considered by federal agencies in deciding whether or not a project would negatively impact threatened or endangered species. The excluded effects are those that are not “capable of being meaningfully identified or detected in a manner that permits evaluation.”

The most notable indirect effect is that pesky climate change business. The changes made by this new rule aren’t about polar bears or owls. This is about who makes decisions under the Endangered Species Act but it’s about something more basic than that. It’s about what factors our government has to consider in deciding about environmental issues, who gets to decide, and who they have to consult. Apparently, at least as far as endangered and threatened species are concerned, global warming isn’t a legitimate consideration. The Endangered Species Act is not the right tool to set US policy or regulate greenhouse gases, according to Secretary of the Interior Dirk Kempthorne who introduced the final regulation and answered critics at the same time by saying that the Endangered Species Act is not the right tool to set U.S. policy or regulate greenhouse gases. At midnight, there doesn’t seem to be any right tool to deal with climate change.