On April 28, 2009, Secretary of Commerce Gary Locke and Secretary of Interior Ken Salazar announced that their departments are revoking a controversial Endangered Species Act (the “ESA” or the “Act”) regulation promulgated at the close of the Bush Administration. The rule briefly allowed federal agencies conducting, permitting or financing projects to decide on their own whether the projects would adversely affect listed species and require consultation with federal resource managers under Section 7 of the Act (the “Consultation Rule”). In a joint statement, the Secretaries announced their determination that the Bush administration’s “11th hour regulation … undermined [ESA] protections.” The decision, reached after the departments were directed by President Obama and Congress to reconsider the Consultation Rule, reinstates a process that has been criticized as unduly burdensome. In light of those concerns, the Administration promised to review the 1986 consultation regulations to decide whether to propose any changes to the process. For the foreseeable future at least, it is back to business as before at NOAA Fisheries and the U.S. Fish and Wildlife Service.
A decision from the Department of Interior on the status of another ESA rule promulgated by the Bush Administration, governing protections for the polar bear (the “polar bear 4(d) rule”), is still pending. The polar bear 4(d) rule sets forth the prohibitions and exceptions applicable to the recently listed polar bear, and does not provide the species with the full protections available under the ESA. The Administration’s decision on that rule is due by May 10, 2009.
The Consultation Rule
On March 11, 2009, President Obama signed H.R. 1105, the $410 billion Omnibus Appropriations Act of 2009. The Act provides funding for the American Recovery and Reinvestment Act of 2009. The Act also authorizes the Secretaries of Commerce and Interior to withdraw the Consultation Rule and the polar bear 4(d) rule. The Appropriations Act followed the President’s March 3, 2009 memorandum to the heads of executive agencies (the “ESA Memo”), in which he asked the Secretaries to review the Consultation Rule. The Appropriations Act and ESA Memo directed the Secretaries to reconsider the rules, and the Act empowered the Secretaries to rescind both rules on or before May 10, 2009, without complying with the notice and comment procedures normally required under the Administrative Procedure Act (“APA”).
Under Section 7 of the ESA, federal agencies must ensure that “any action authorized, funded, or carried out by such agency … is not likely to jeopardize the continued existence of any endangered … or threatened species or result in the destruction or adverse modification of [designated critical] habitat.…”. Under the ESA and its implementing regulations, when an action with a federal nexus may adversely affect a listed species or designated critical habitat, the agency undertaking or authorizing the project (the “action agency”) must consult with the appropriate Service, in order to ensure that the relevant activity does not jeopardize the species or habitat.
Under the Consultation Rule, in certain circumstances the federal agencies considering a project or action – either public or private – that requires federal authorization or involves federal funding, could decide for themselves whether they had to consult with the appropriate wildlife Service on the effects of that project or action. The Bush Administration changed certain elements of the 1986 consultation regulations, which require concurrence by the Service when an action agency determines that its project is not likely to adversely affect species or designated critical habitat.
President Obama’s Memorandum for the Heads of Executive Departments and Agencies
In his ESA Memo, President Obama asked the Secretaries to review the Consultation Rule and “determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purposes of the ESA.” President Obama did not formally suspend implementation of the Consultation Rule pending reconsideration. Instead, he asked federal agencies to exercise their discretion under the rule “to follow the prior longstanding consultation and concurrence practices involving the [Services]” until the review is done. The Memo expressly states that it does not create any enforceable rights, duties or remedies.
The Appropriations Act
Section 429 of the Appropriations Act authorize the Secretaries to “withdraw or reissue” the Consultation Rule and polar bear 4(d) rule on or before May 10, 2009, “without regard to any provision of statute or regulation that establishes a requirement for such withdrawal.” If the Secretaries withdraw a rule under the Act, they must “implement the provisions of law under which the rule was issued in accordance with the regulations in effect under such provisions immediately before the effective date of such rule, except as otherwise provided by any Act or rule that takes effect after the effective date of the rule that is withdrawn.
Earlier this year, the Senate defeated an amendment to the Appropriations Act proposed by Alaska Senators Lisa Murkowski (R) and Mark Begich (D) that would have subjected any action by the Secretaries to the normal 60-day comment period. Thus, provided that they do so by May 10, the Appropriations Act allows the Secretaries to also withdraw or reissue the polar bear 4(d) rule without adhering to the notice and comment requirements of the APA.
Effects of Consultation Rule Revocation and Pending Decision on Polar Bear 4(d) Rule
Both the Consultation Rule and the polar bear 4(d) rule have been the subjects of many lawsuits filed by environmental plaintiffs as well as the States of California, Connecticut, Delaware, Maryland, Massachusetts, New Jersey, New York, Oregon, and Rhode Island. On March 16, 2009, the parties to several of those lawsuits filed joint proposed case management orders seeking a 60-day stay of proceedings, in order to ensure that the government’s experts could focus on reconsidering the rules rather than litigating over them. The Secretaries’ action will moot many of those lawsuits.
Once the Consultation Rule is formally rescinded, consultation will proceed as it has in the past, with the Services reviewing decisions by action agencies about effects of projects on species. The Secretaries may propose additional changes to the consultation rules in the future, perhaps to streamline the process when implementing projects funded with federal stimulus money. If Interior also revokes the polar bear rule, that species may be afforded the full protections of the ESA.
In the Consultation Rule and the polar bear 4(d) rule, the Services repeatedly emphasized that the emission of greenhouse gases (“GHGs”) by individual sources will not trigger consultation requirements. Therefore, in reviewing the polar bear 4(d) rule, the Obama Administration could take the opportunity to address the intersection of climate change and the ESA – namely, whether GHG emissions trigger consultation requirements for Arctic and other species adversely affected by climate change effects. If it does, that could be the most interesting and controversial element of the Administration’s review. Climate change already plays a role in some consultations. The Services have been, and may continue to be, required to evaluate climate change effects as part of the environmental baseline of “past and present impacts of all Federal, State, or private actions and other human activities in the action area