Obama Suspends Bush Endangered Species Rule

Mar 3: At his meeting with Department of Interior employees, President Obama announced that he "signed a memorandum that will help restore the scientific process to its rightful place at the heart of the Endangered Species Act, a process undermined by past administrations." He said, "For more than three decades, the Endangered Species Act has successfully protected our nation's most threatened wildlife, and we should be looking for ways to improve it -- not weaken it." The President's action effectively suspends the Bush Administration rule (See links below) and calls for a review of the regulation. Until such a review is completed, the President said, "I request the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices" involving the Fish and Wildlife Services and the National Marine Fisheries Service."

According to the President's Memo, "The Endangered Species Act (ESA), 16U.S.C. 1531 et seq., reflects one of the Nation's profound commitments. Pursuant to that Act, the Federal Government has long required a process of broad interagency consultation to ensure the application of scientific and technical expertise to decisions that may affect threatened or endangered species. . . On December 16, 2008, the Departments of the Interior and Commerce issued a joint regulation that modified these longstanding requirements. See 73 Fed. Reg. 76272. . . I hereby request the Secretaries of the Interior and Commerce to review the regulation issued on December 16, 2008, and to determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purposes of the ESA."

House Natural Resources Committee Chairman Nick J. Rahall (D-WV) released a statement after President Barack Obama announced, during a visit to the Interior Department, that his Administration will change course on a Bush Administration regulation that would have allowed Federal agencies to decide on their own whether or not to comply with the consultation requirement of the Endangered Species Act (ESA), one of the Nation's landmark conservation laws [See WIMS 10/27/08, WIMS 12/12/08, WIMS 12/16/08].

Chairman Rahall said, "I wholeheartedly support the President's proposal to restore the protections for endangered species that the Bush Administration spent so many years trying to undermine. It is one more indication that the new Administration truly represents change for the better and is committed to the protection of our natural resources and our environment. I think we know who would have been the winner in this fox-guarding-the-hen-house scenario advanced by the Bush Administration, and it would not be the hens."

The public interest law firm, Earthjustice who filed litigation challenging the Bush Administration changes in Federal district court in San Francisco on December 16 [See WIMS 12/18/08], issued a statement saying, ". . .we applaud the new administration's leadership in restoring scientific integrity to this agency and its mandate to protect our nation's wildlife. We're heartened that President Obama intends to return wildlife biologists to their rightful role in determining protections for America's plants and animals. What's needed now is for the Senate to defeat an attempt by Senator Lisa Murkowski (R-AK) that seeks to make it more difficult for the Obama administration to undo this misguided rule change by the former administration. President Obama's directive sends a loud and clear signal that the former administration's political manipulation of science will no longer be tolerated. . ."

John Kostyack, Executive Director of Wildlife Conservation and Global Warming at the National Wildlife Federation (NWF) said, “This action demonstrates President Obama’s commitment to protecting America’s endangered species and the habitats that both people and wildlife depend upon. Reinstating independent scientific review of the impacts of federal actions on endangered species is a giant first step in restoring the Endangered Species Act after eight years of attacks from the Bush Administration. With just one stroke of the pen, President Obama has done more today to uphold the scientific integrity of the Endangered Species Act than President Bush did during his entire eight years in office. Members of the Senate should follow President Obama’s lead and pass the 2009 Omnibus Spending Bill , which includes language making it clear that President Obama has the authority to immediately and completely reverse President Bush's last-minute Endangered Species Act changes.” The House of Representatives approved the $410 billion omnibus FY 2009 appropriations bill (H.R. 1105), by a vote of 245-178, on February 25 [See WIMS 2/27/09]. The bill is now under consideration in the Senate.

The Center for Biological Diversity (CBD), which is at the center of many endangered species act decisions said, “This is welcome news for endangered species. Obama has restored independent, scientific oversight to the heart of the Endangered Species Act. Obama’s move today puts expert scientists back in the driver’s seat for management of the nation’s endangered species,” said Suckling. “Obama has acted swiftly to meet an important campaign promise and show that he puts science and endangered species before politics. We are hopeful that the Senate will pass the Omnibus Appropriations bill and the Obama administration will fully rescind both of these rules.”

U.S. Senators Lisa Murkowski (R-AK) and Mark Begich (D-AK), introduced an amendment to the FY 2009 omnibus spending bill which they said "would maintain the public process for revisions to regulations under the Endangered Species Act." They indicated in a release that, "The omnibus appropriations bill that passed the House of Representatives last week and is before the Senate this week includes language that would allow the administration to withdraw two current rules under the Endangered Species Act (ESA) within 60 days of adoption of the omnibus bill without having to go through any notice or public comment period, and without being subject to any judicial review. The first rule relates to the specific listing of the polar bear, while the second rule deals with regulation of carbon dioxide emissions nationwide, a related issue to the polar bear listing."

The Senators explained, "Last year the Bush administration listed the polar bear as a threatened species under the ESA. The listing decision specifically included a provision -- permitted by Section 4(d) of the ESA -- that prevented oil or gas or subsistence hunting from being impacted by any action plan that the Department will craft to remedy bear population issues in the future. This provision was added after full public comment and was based on a full scientific review." They said the Murkowski-Begich amendment would require that if the secretaries of the Interior and Commerce Departments withdraw or reissue the current rules under the ESA, the action would be subject to the requirements of the Administrative Procedures Act (APA), with at least a 60-day comment period.
Murkowski said, "Withdrawal of the existing rule could mean that any increase in carbon dioxide or any greenhouse gas, anywhere in the country could be subject to legal challenges asserting that those activities are harming a polar bear, or that there has not been sufficient consultation with the U.S. Fish and Wildlife Service regarding activities that are funded, carried out or authorized by the federal government. The Center for Biological diversity has already stated that it wants to use the polar bear listing to regulate greenhouse gases. While I believe lawsuits by environmental groups would eventually overreach and cause a backlash against the ESA, massive economic harm could result before Congress steps in to remedy the situation.”

Senate Environment and Public Works Committee Ranking Member, James Inhofe (R-OK) also commented on the omnibus budget bill provision calling for "the removal of a rider . . . that would authorize the Department of the Interior to regulate greenhouse gas emissions and reverse common-sense revisions to the Endangered Species Act (ESA) consultation procedures." He said, "The omnibus rider is flagrant attempt to regulate emissions without going through the proper process of public regulatory or legislative debate. This provision is a direct attack on our economy and energy security. Rescinding the polar bear rules with the congressional stroke of the pen means that any emitter of greenhouse gases could be regulated in the name of protecting habitat regardless of whether sufficient scientific evidence justifies that action. ESA was never intended or designed to regulate greenhouse gas emissions or air quality. The fact is that activists and their Congressional supporters are selectively ignoring their commitments to transparency in order to improve their odds in court."

Access remarks from the President (click here). Access the President's Memo (click here). Access a release from Chairman Rahall (click here). Access a release from Earthjustice (click here). Access a release from NWF (click here). Access a release from CBD (click here). Access a lengthy release from Senators Murkowski & Begich (click here). Access a release from Senator Inhofe (click here). Access legislative details for H.R. 1105 including the roll call vote (click here). Access the Bush Administration final ESA rule published 12/16/08 (click here). Access the FWS ESA website for program information (click here). [*Wildlife, *Climate, *Land]