Obama Restores Scientific Consultation to Endangered Species Act

The Bush rule allowed federal agencies whose activities might harm threatened and endangered species to avoid the longstanding requirement that they consult first with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service.

Issued jointly by the Departments of the Interior and Commerce just one month before the end of the Bush administration, the rule exempted many federal actions from review under the Endangered Species Act, even activities that generate greenhouse gases or emit toxic chemicals.

Instead, it allowed federal employees to use their own discretion to decide whether their actions were likely to harm endangered species, whether or not they had the scientific expertise to make those decisions.

In his memo, President Obama requests 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.

The President announced his decision before an audience of Interior Department employees on the 160th anniversary of the agency.

"Today, I've 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," Obama said to applause.

Interior Secretary Ken Salazar, left, and President Barack Obama mark the 160th anniversary of the Department of the Interior. (Photo courtesy DOI)

"The work of scientists and experts in my administration, including right here in the Interior Department, will be respected," 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."

"Throughout our history, there's been a tension between those who've sought to conserve our natural resources for the benefit of future generations, and those who have sought to profit from these resources. But I'm here to tell you this is a false choice. With smart, sustainable policies, we can grow our economy today and preserve the environment for ourselves, our children, and our grandchildren," said Obama. "That is what we must do."

"For you know," he said, "you know that our long-term prosperity depends upon the faithful stewardship of the air we breathe, the water we drink, and the land that we sow. That's a sacred trust, the importance of which cannot be measured merely by the acres we protect, the miles of rivers we preserve, the energy we draw from public lands."

House Natural Resources Committee Chairman Nick Rahall, a West Virginia Democrat, 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."

But House Natural Resources Committee Ranking Member Doc Hastings, a Washington Republican, was critical of the move, saying it would lead to "endless bureaucratic regulations and lawsuits by special interest groups."

Congressman Doc Hastings (Photo courtesy Office of the Congressman)

"Our country is in the midst of a terrible economic recession and the federal government should not be taking actions that could stall vital transportation, infrastructure and energy projects that create new jobs," Hastings said. "Shovel-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 and federal agencies are still responsible for ensuring that their actions do not cause harm," said Hastings.

Conservation groups praised the President's action.

Environmental Defense Fund attorney and wildlife expert Michael Bean said, "With this action Mr. Obama has restored the U.S. Fish and Wildlife Service and NMFS to their rightful authority as scientific advisers to federal agencies and has signaled that the Endangered Species Act, like many of the plants and animals it protects, is on its way to recovery."

"This is welcome news for endangered species," said Kieran Suckling, executive director of the Center for Biological Diversity. "Obama has restored independent, scientific oversight to the heart of the Endangered Species Act."

"Obama has acted swiftly to meet an important campaign promise and show that he puts science and endangered species before politics," he said.

More action may be needed by the administration to fully rescind the rule, including a new rulemaking or action by Congress.

The Senate is currently considering an Omnibus Appropriations Bill from the House that would allow the Obama administration to rescind both the rule covered by today’s memo and a special rule issued in conjunction with last year's listing of the polar bear as threatened.

That rule exempted greenhouse gas emissions and oil development from regulation under the Endangered Species Act even if they harmed the bears and their melting habitat.

Congressman Hastings is also critical of that measure, saying, "Democrat leaders have slipped dangerous language into the $410 billion spending bill to withdraw two ESA rules without any public input or public comment period. This type of secret, backdoor maneuver is not how the public expects their government to operate and I encourage my colleagues in the Senate to support an amendment striking the provision from the bill."

An amendment by Alaska Senators Lisa Murkowski, a Republican, and Mark Begich, a Democrat, proposes that if the administration does choose to rescind the two rules, a 60 day comment period would be held.

"Without this amendment, the provision inserted in the House allows the secretaries to make dramatic changes in rules and regulations without having to comply with multiple, long-standing federal laws that require public notice and public comment by the American people and knowledgeable scientists," Begich said in a statement. "These changes have the potential for far-reaching and unintended consequences on our economy."

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