ESA blawg :: Salazar and Locke Announce Repeal of Bush Administration Rules Changing Consultations under the Endangered Species Act

Contributors

PETE DAVID (Albuquerque, NM). Pete is a Certified Wildlife Biologist with 25 years experience with land stewardship and natural resources programs. He previously worked with the South Florida Water Management District, Florida Department of Environmental Regulation, U.S. Department of Defense, U.S. Forest Service, and U.S. Fish and Wildlife Service (FWS). His project experience includes reintroducing the federally endangered red-cockaded woodpecker to South Florida, and the Middle Rio Grande Endangered Species Act Collaborative Program in New Mexico. Today, Pete continues to work on endangered species issues as a Senior Project Manager for SWCA Environmental Consultants in Albuquerque.

YELIZAVETA BATRES (West Palm Beach, FL). Liz is currently clerking at the Florida Fourth District Court of Appeal, after graduating from the University of Florida Levin College of Law, where she was a senior research editor of the Law Review. Liz also interned at the U.S. Department of Justice, Environment and Natural Resources Division.

In a joint press release issued today, the Departments of Interior and Commerce announced a decision by Secretary Salazar and Secretary Locke to "Restore Scientific Consultations under the Endangered Species Act to Protect Species and their Habitats." The agencies explained that they were revoking an eleventh-hour Bush administration rule that changed the Endangered Species Act (ESA) consultation process. Their decision requires federal agencies to once again consult with federal wildlife experts at the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration – the two agencies that administer the ESA – before taking any action that may affect threatened or endangered species.

KEITHINKING: The decision represents a complete repudiation of the Bush Administration's efforts to alter the ESA consultation process, wholly repealing the rule, and exercising the authority granted by Congress, in the 2009 Omnibus Appropriations Act. However, as explained in earlier ESA blawg postings (see especially Aug 16, 2008 and Nov. 22, 2008 and Dec. 11, 2008), some modification of the Section 7 process may -- eventually -- be appropriate, and the joint press release also said that "the two departments will conduct a joint review of the 1986 consultation regulations to determine if any improvements should be proposed."

Comments

1 - This was the perfect case of right idea (or at least a defensible idea), but wrong party, wrong timing, and wrong way of operationalizing the idea. Unfortunately, however, we're going to come back to this river eventually and be forced to cross it some other way. As currently written, Part 402 provides a good lever to force consultations on action agencies that have neither the inclination (nor the authority in some cases) to redesign their actions around the GHG emissions that might result or might not result based on their decisions. Any Keithinking on what they'll come up with to replace the Bush rule?

Posted by Jamison Colburn At 04:15:32 PM On 04/30/2009 | - Website (Optional, published) - |

2 - In a 4/23 post, I noted a New York Times article that quoted an Obama official discussing the ESA and GHG: "We have zero legislative authority to regulate carbon emissions. That's just not what we do." So here it is... KEITHINKING: The Obama folks have not yet repealed the polar bear rule. Experienced officials implementing the ESA at DOI and NOAA know that it would be nearly impossible to perform a meaningful consultation on the impacts of a new Florida power plant on polar bears. The Bush Administration rule limiting the ESA analysis of GHGs is a tool to prevent that nightmare. I would not be surprised if the rule is left in place, with a notice and comment process initiated to revise it.

Posted by Keith Rizzardi At 08:12:26 AM On 05/02/2009 | - Website (Optional, published) - |