CPR Member Scholar Holly Doremus, joined by Member Scholars Rob Glicksman (also a CPR Board Member), Alex Camacho, and Dan Rohlf, along with myself, today sent the Secretaries of the Departments of Commerce and Interior a letter urging them to utilize the time-limited authority that Congress gave them to withdraw one of the more controversial midnight regulations issued by the Bush Administration. Those regulations undercut one of the Endangered Species Act’s (ESA) most important protections—a requirement that federal agencies consult with the Fish and Wildlife Service (FWS) and/or the National Marine Fisheries Service (NMFS) to be sure that actions they plan to take (for example, funding a new highway) are not likely to jeopardize the continued existence of threatened and endangered species.
The Bush consultation regulations represent the worst kind of midnight rulemaking—they are poorly considered, unjustified by any evidence, and were patently intended to impose the Bush Administration’s hostile stamp on implementation of the nation’s flagship conservation law. Most importantly, if implemented, the Bush consultation regulations will result in weakened protections for endangered and threatened species.
The same group of CPR Member Scholars, joined by UC Davis conservation biologist Mark Schwartz, submitted comments to FWS and NMFS on the proposed rule back in October. (Click here for the comments and here for a prior entry here on CPRBlog that summarizes CPR’s objections to the proposal.)
After “reviewing” CPR’s comments and the approximately 250,000 other public comments received (the vast majority of which opposed the proposal) in mere days, the Bush Administration’s FWS and NMFS made several very minor changes and issued the regulations in final form on December 16. The timing was carefully calibrated to ensure that the regulations would not be subject to any action on the part of the Obama Administration to reconsider regulations that had been published in the Federal Register by inauguration day, but which had not yet taken effect. (The Bush Administration correctly anticipated that President Obama would take this action, as did President Bush upon taking office in 2001.)
Although the consultation regulations were beyond the reach of the Obama Administration’s inauguration day directive, it quickly became apparent that they would encounter significant challenges in all three branches of government. Almost immediately after the final regulations were issued, they were challenged in court by at least 9 states and 24 conservation organizations. (For more on the lawsuits and other early developments, click here.)
More recently, Rep. Nick J. Rahall (Chairman of the House Natural Resources Committee) introduced H.J. Res. 18, which declares congressional disapproval of the Bush consultation regulations under the Congressional Review Act. Chairman Rahall's bill is holding for now, because the issue may be addressed through a different route.
On March 3, President Obama issued a Memorandum directing that federal agencies follow the prior longstanding consultation practices pending a review by the Secretaries of the Interior and Commerce (the parent agencies of FWS and NMFS, respectively) to determine “whether to undertake new rulemaking procedures with respect to consultation that will promote the purposes of the ESA.” On March 11, President Obama signed into law the omnibus appropriations bill (P.L. 111-08) passed by Congress, which includes a section providing the Secretaries 60 days in which to withdraw or reissue the Bush consultation regulations without proceeding through the usual rulemaking requirements.
Although each of these developments is an important step in the right direction, the Bush consultation regulations remain on the books—that is, they are the regulations that officially govern how agencies comply with the ESA’s consultation requirement. As of last week, the Department of the Interior was still weighing its options concerning how to handle the regulations. If the Secretaries utilize their spending bill authority and withdraw the Bush regulations, the result would be a return to the prior regulations, issued in 1986. But it is not clear that the Departments will do so. In fact, Tom Strickland, the recently-confirmed Interior assistant secretary for fish and wildlife and parks, told a Congressional panel that the Department may not take the expedited route because it had already commenced a traditional review of the Bush regulations.
A comprehensive evaluation of the 1986 regulations might indeed be desirable, but we shouldn't leave Bush's midnight regulations on the books in the meantime. A comprehensive evaluation of the consultation rules would take some real time to be done properly. And, unlike the hasty process that preceded issuance of the Bush consultation regulations, such an evaluation would carefully consider whether the 1986 regulations might be under- rather than over- protective in some respects.
While President Obama’s Memorandum provides an important short term assurance that federal agency actions are subjected to appropriate scrutiny under tried-and-true consultation procedures, it is explicitly not enforceable by the courts. As Professor Doremus has written, over the long term, mission-oriented agencies may well opt to follow the letter of the Revised Regulations rather than the President’s Memorandum, and will be able to do so knowing that their actions would be upheld in court.
Whether the Secretaries ultimately decide to develop entirely new consultation regulations or return to the 1986 regulations, they would best serve the protection of species in the meantime by withdrawing the Bush regulations and returning (at least temporarily) to the 1986 regulations. The Omnibus budget bill gives them the opportunity to do that easily. The Secretaries should act, and quickly. The 60-day clock is ticking.