Posted by Jonathan Adler:
Obama Suspends Bush ESA Rule:
http://volokh.com/archives/archive_2009_03_01-2009_03_07.shtml#1236179778
Among the Bush Administration's more controversial, last-minute
regulatory changes was a rule to relax the consultation requirement
under Section 7 of the Endangered Species Act. Specifically, the rule
allowed federal agencies the latitude to make their own initial
determination as to whether they had to engage in consultation with
the Fish and Wildlife Service or National Marine Fisheries Service
over the potential adverse impacts on endangered or threatened species
of activities funded, permitted, or undertaken by the federal
government. In a [1]presidential memorandum issued yesterday,
President Obama called upon Interior and Commerce Departments (homes
to the Fish & Wildlife Service and National Marine Fisheries Service,
respectively) to reconsider the rule. Perhaps more significantly, the
President also instructed all agency heads to "exercise their
discretion, under the new regulation, to follow the prior longstanding
consultation and concurrence practices involving the FWS and NMFS." In
other words, federal agencies are to act as if the Bush Administration
rule were never adopted, until such time the Obama Administration is
able to put in place a new rule of its own.
Reactions to the memo are largely what one would expect.
Environmentalists cheered, while industry warned of greater costs and
permitting delays. [2]From the Washington Post:
Francesca Grifo of the Union of Concerned Scientists, an activist
group, said the switch would help guard against the potential
conflicts of interest and lack of expertise that could color
decision making by any agency hoping to press ahead with a
particular project. "After years of scientific scandal, the
Interior Department and its partner agencies need desperately to
regain credibility by making decisions with honesty, clarity, and
transparency," Grifo said.
But Bill Kovacs, the U.S. Chamber of Commerce's vice president of
environment, technology and regulatory affairs, said reviving
another layer of review "will result in even greater delays to
projects -- including stimulus-backed, job-creating projects -- as
agencies now grapple with the prospect of lengthy inter-agency
consultations to determine, for instance, if a bridge project in
Florida contributes to the melting of Arctic ice. This is such a
departure from the spirit and the letter of the Endangered Species
Act that we wonder if the law's drafters would even recognize it
today."
A big question is how this rule will effect agency consultation
obligations for actions that result in increased greenhouse gas
emissions. Now that the [3]polar bear is listed as a threatened
species, some environmental groups argue that large projects permitted
or funded by the federal government should be subject to Section 7
consultation due to their potential contribution to climate change and
the consequent effect on polar bears. The Obama Administration,
however, appears to be taking a slightly different view.
Administration officials said the move is not likely to trigger
broad use of the Endangered Species Act to regulate greenhouse gas
emissions. While the Bush rule specifically prohibited endangered
species consultations on the basis of "global processes" such as
climate change, an Interior official who asked not to be identified
said under the new policy such a review would only be triggered if
scientific evidence suggested "a causal connection" between
emissions from a federal project and its effect on specific
imperiled species or an identifiable part of its habitat.
References
1.
http://www.whitehouse.gov/the_press_office/Memorandum-for-the-Heads-of-Executive-Departments-and-Agencies/
2.
http://www.washingtonpost.com/wp-dyn/content/article/2009/03/03/AR2009030302620.html?hpid=topnews
3. http://volokh.com/archives/archive_2008_08_24-2008_08_30.shtml#1220068021
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