Daniel Burke

March 5, 2009

On March 3, 2009, President Obama released a memorandum seeking to reverse a Bush Administration regulation which relaxed longstanding consultation requirements under the Endangered Species Act (ESA). The regulation was issued on December 16, 2008 by the Departments of Interior and Commerce, in the waning days of the administration. Prior to this, the ESA required federal agencies, in most circumstances, to consult with and obtain written consent from the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) before undertaking an action that might affect threatened or endangered species. Under the new rule, agency officials could use their own discretion in deciding whether proposed actions would affect species, regardless of whether those officials had the scientific expertise or not.

Obama's memorandum urged all agencies to follow the prior longstanding consultation and concurrence practices involving the FWS and NMFS. It also instructed the Secretaries of Interior and Commerce to review the regulation and proceed with new rulemaking that will effectively repeal the regulation and replace it with a new one more in line with the purposes of the ESA--the conservation of ecosystems upon which threatened and endangered species depend as well as to protective measures for the species themselves.

In lieu of the new rulemaking, Congressional action may also serve the same function. The Omnibus Appropriations Bill, currently being considered by the Senate, contains a rider that would allow the Obama Administration to rescind the regulation as well as a special rule exempting greenhouse gas emissions and oil development from regulation under the ESA. This special rule excluded the two biggest threats to the polar bear, a threatened species. If the omnibus bill passes the Senate, both rules could be extinguished with the stroke of a pen.

Environmental groups have praised Obama's efforts to strengthen the ESA and re-emphasize the scientific process in agency decision-making. Susan Holmes, the Senior Legislative Representative for Earthjustice, said that the group was "heartened that President Obama intends to return wildlife biologists to their rightful role in determining protections for America's plants and animals."

However, Obama's efforts immediately faced opposition from Congressional members. Senator Lisa Murkowski (R-AK) pledged to introduce an amendment to the Omnibus Appropriations Bill which would require a sixty-day comment period on any decision by the administration to rescind the rules. House Natural Resources Committee Ranking Member Doc Hastings (R-WA) alleged that the move would result in "endless bureaucratic regulations and lawsuits by special interest groups." He went on to say that "[s]hovel ready projects in the trillion dollar stimulus law could be delayed or halted by this action. Furthermore, there is no evidence that the existing rule has caused harm to any listed species."

Still, environmental groups remain hopeful that the Senate will pass the Omnibus Appropriations Bill, allowing the Obama Administration to rescind the rules.

Sources:

Memorandum from the Office of the White House Press Secretary to the Heads of Executive Departments and Agencies (Mar. 3, 2009) available at http://graphics8.nytimes.com/packages/pdf/politics/2009endangered.mem.rel.pdf.

16 U.S.C. §1531 (2000).

Press Release, Center for Biological Diversity, President Obama Issues Presidential Memorandum Rescinding Bush Administration Regulations That Weakened the Endangered Species Act (Mar. 3, 2009) (http://www.biologicaldiversity.org/news/press_releases/2009/esa-regulations-03-03-2009.html).

Press Release, Earthjustice, Earthjustice Applauds President Obama's Move to Restore Wildlife Protections (Mar. 3, 2009) (http://www.earthjustice.org/news/press/2009/earthjustice-applauds-president-obama-s-move-to-restore-wildlife-protections.html).

Cornelia Dean, Bid to Undo Bush Memo on Threats to Species, N.Y. Times, Mar. 4 2009, available at http://www.nytimes.com/2009/03/04/science/earth/04species.html?_r=1&ref=earth.

Allison Winter, Alaska senators move to protect Bush's ESA revisions, E&ENewsPM, Mar. 3, 2009, http://www.eenews.net/spm/print/2009/03/03/3.

Environmental News Service, Obama Restores Scientific Consultation to Endangered Species Act, Mar. 3, 2009, http://www.ens-newswire.com/ens/mar2009/2009-03-03-094.asp.