Obama addresses plan to modify Endangered Species Act consultation

US President Barack H. Obama ordered federal agencies on March 3 to use the option to consult under a Bush administration plan to adopt new consultation requirements under the Endangered Species Act.

US President Barack H. Obama ordered federal agencies on March 3 to use the option to consult under a Bush administration plan to adopt new consultation requirements under the Endangered Species Act.

"Today, I've signed a memorandum that will help restore the scientific process to its rightful place at the heart of the [ESA], a process undermined by past administrations," the president said in a March 3 address to US Department of the Interior employees as the department celebrated its 160th anniversary.

The proposal was designed to clarify the threshold at which consultations with agencies in the Departments of the Interior and Commerce would occur, then-US Interior Secretary Dirk A. Kempthorne said on Dec. 11 when he announced its final version.

"If science can not draw a direct causal link between an action and an effect on a listed species, as is currently the case for global processes like climate change, than consultation under the ESA is not necessary," he maintained.

It did not keep agencies from consulting, but made it an option in circumstances when the agencies determined there would be no impact on the species, a DOI spokesman told OGJ on March 4. "When agencies determined there would be a likely adverse impact on a species, they would be required to consult," he said.

Congressional critics and environmental organizations said that the proposal, which Kempthorne said reflected several decades' experience enforcing the ESA and improved technology, actually undermined the law. Obama apparently agreed.

"The work of scientists and experts in my administration, including right here in the Interior Department, will be respected. For more than three decades, the [ESA] has successfully protected our nation's most threatened wildlife, and we should be looking for ways to improve it, not weaken it," he said on March 3.

Not a rollback

The memorandum did not roll back the rule, but ordered agencies to use its option to consult, the DOI spokesman explained. "The regulation stays in place until the administration decides whether it wants to go through another regulatory process to change it," he said.

Obama's action still produced comments. "This proves that scientists are no longer an endangered species. Thankfully, ESA in the Obama administration now means we're 'Ending the Scientific Aversion' that characterized the Bush administration's tenure," US Rep. Edward J. Markey (D-Mass.), chairman of the House Select Committee on Energy Independence and Global Warming, said on March 3.

Sierra Club President Carl Pope said that Obama's announcement "marks the unequivocal return of science" to federal agencies governing fish, wildlife and natural resources. "The Bush rules would have allowed agencies with little or no wildlife expertise to make decisions that could mean life or death for animals like the polar bear. When it comes to protecting wildlife, we should listen to the scientists who spend their lives studying these animals," he maintained.

But the National Association of Manufacturers expressed concern that Obama's order, if carried out, could work against job creation goals in the economic stimulus bill that the president recently signed. "Reinstating bureaucratic hurdles will only delay energy development and other construction projects which help create jobs," said Keith McCoy, NAM's vice president of energy and resources policy.

Markey noted that the House included language in the omnibus spending bill that it passed in February which would give the Obama administration 60 days to withdraw or reissue both the ESA rule and Kempthorne's order classifying the polar bear as a threatened, but not endangered, species.

Congressional Republicans have expressed their disapproval of the budget provision. "ESA was never intended or designed to regulate greenhouse gas emissions or air quality. The fact is that activists and their congressional supporters are selective ignoring their commitments to transparency in order to improve their odds in court," James M. Inhofe (R-Okla.), ranking minority member of the US Senate Environment and Public Works Committee, said on Feb. 27.

Contact Nick Snow at nicks@pennwell.com

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