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 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. 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.A big question is how this rule will effect agency consultation obligations for actions that result in increased greenhouse gas emissions. Now that the 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.
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."
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.