The Obama Administration on Tuesday overturned Endangered Species Act (“ESA”) regulations passed under President George W. Bush that had modified requirements for government agencies to consult with federal biologists prior to undertaking projects with the potential to affect threatened or endangered plants and animals. It may be a further step towards using the ESA as a means to mandate reductions in greenhouse gas emissions for the purpose of limiting climate change impacts affecting listed species, such as the polar bear. The National Wildlife Federation made clear that environmental groups view the move as an important component of their climate change regulatory agenda, stating “This [consultation requirement] has been key to the [Endangered Species] act’s success for the past 35 years, and it will [be] especially needed as we work to help wildlife and ecosystems survive the unprecedented threat of global warming.”
In August 2008, the Bush administration proposed an overhaul of the ESA, expediting its review of public comments and putting in place new final rules in December 2008. The controversial rules narrowed factors that federal agencies must consider in wildlife consultations and made it optional for agencies to consult with Fish and Wildlife Service biologists on actions that might threaten listed species. In addition, the Bush-era rules generally limited the ESA’s application with respect to reducing greenhouse gas emissions.
Congress responded in the fiscal 2009 omnibus spending bill with a rider providing the Interior Department authority to fast-track the reversal of the Bush-era ESA rules. Interior Secretary Ken Salazar was given until May 10 to decide whether to undertake traditional notice and comment rulemaking in overturning the rules or to skip the usual public notice and comment period and other rulemaking requirements. Tuesday’s action reinstated ESA consultation requirements without notice and comment rulemaking. It did not yet address the ESA exemption for greenhouse gases.
Environmental groups approved of the fast-track reinstatement of ESA consultation requirements and made clear that they will not be satisfied until the greenhouse gas exemption also is reversed. The polar bear, two species of coral, and a California mollusk already are listed due to habitat threats from rising global temperatures. The Fish and Wildlife Service additionally is considering listing the pika and three species of Arctic seals.
Reversal of the Bush-era changes, combined with a finding that listed species are threatened by global climate change, could drastically expand the purview of ESA regulation to include regulation of greenhouse gas emissions from any source, large or small. The Fish and Wildlife Service has accused environmental groups of abusing the ESA in an attempt to create a “backdoor climate policy outside our normal system of political accountability,” saying, “[w]e have zero legislative authority to regulate carbon emissions. That’s just not what we do.” Senator Lisa Murkowski, the ranking Republican on the energy panel, likewise expressed concern over what she called a dramatic change in the ESA with potentially far-reaching consequences, stating “Every power plant permit anywhere that might increase carbon emissions could face a lawsuit.” “Jeopardy could extend past fossil fuel projects to include any agricultural practice, any increase in livestock numbers, new road construction, literally any project or activity that might increase greenhouse gas emissions,” Murkowski added.
Salazar has until May 10 to decide whether to fast-track reversal of the ESA greenhouse gas exemption.