Cross-posted from Legal Planet.
Clearly I need to slow down Rick’s internet connection to get him to stop scooping me.
Rick reported earlier that the President has floated a proposal to reorganize the Commerce Department and related agencies which would apparently include moving NOAA (all of NOAA, according to OMB’s Jeffrey Zeints, not just its ESA functions) into the Department of Interior.
Actually, although that’s the way the story is being spun out in the media, it’s not exactly what’s going on. What the President has really proposed is that Congress give him the authority that presidents routinely enjoyed before 1984 to reorganize and streamline government agencies. That proposal makes all kinds of sense, both substantively and politically. Substantively, of course as circumstances and societal priorities shift, government agencies should not permanently remain static. But the current Congress is so shameless and so obsessed with micromanaging the executive branch that it refuses to confirm presidential appointees if a minority objects to the agency those appointees will oversee and holds sham sessions at which no business may be conducted to try to prevent the President from making recess appointments. This Congress is not going to give President Obama what he’s asking for, which makes the proposal a smart political move. It gives Obama a concrete way to campaign against the Congress, and to put the Republicans on the defensive.
No doubt to maximize that political benefit, or perhaps just to tweak his most dedicated congressional opponents, the example the President is offering is the merger of a number of agencies, including many functions of the Department of Commerce, focused on business and trade. Those, of course, are typically viewed as higher Republican than Democratic priorities. Obama asserted in his remarks today that the changes he wants authority to make respond directly to feedback that what businesses really hate in dealing with government is not the fact of regulation but “a system that [is] too much of a maze.”
Friday's proposals, therefore, are more about political theater than anything else. And they are much more focused on the business angle than anything else. NOAA is an afterthought, and an incomplete one at that. Jeffrey Mervis reported in ScienceInsider (subscription required) that Administration spokesman Jeffrey Zeints could only say about the proposal to move NOAA to Interior
that “the appropriate integration … will be worked out” in the months to come. He did say, however, that any plan “would make sure that we achieve NOAA’s mission.”
In other words, they don’t have a clue how they would do it. I don’t think they really expect it to happen.
Government reorganization is proposed far more often than it actually happens. That’s been especially true of NOAA since its establishment in 1970. Andrew Rosenberg, a former top NOAA official now at Conservation International, told ScienceInsider (subscription required) that there have been 42 different attempts to reorganize NOAA, none of which have succeeded.
So it’s way too early to worry in detail about NOAA. (Personally, I think the more worrisome part of Obama’s announcement is that he’s planning to give the Small Business Administration cabinet status, something he can do on his own initiative.) By the same token, it’s too early to endorse moving NOAA to Interior, as Rick has done.
If this half-baked proposal leads to a serious conversation about where NOAA belongs, that would be a good thing. NOAA, although it is the largest part of the current Department of Commerce, has never been a comfortable fit there. I opined two years ago in this space that the best outcome for NOAA’s science and conservation missions would be to give it independent status, although I don’t think that’s on the table.
Superficially it seems that there would be regulatory efficiencies in combining the ESA implementation arms of NOAA’s National Marine Fisheries Service and Interior’s Fish and Wildlife Service. I think if you look closer, though, any substantial efficiencies are illusory. The expertise needed for ESA implementation depends on the species involved. The people who do butterfly conservation work are not the same, and should not be the same, as those who do salmon conservation work. NMFS and FWS have always worked well cooperatively in developing policies and regulations. There is not, in fact, a lot of conflict or redundancy, so there aren’t a lot of gains to be made.
Indeed, one of the most troubling things to me about the President’s announcement is that he repeated a highly misleading salmon joke from last year’s State of the Union address suggesting a level of complexity in ESA administration that simply doesn’t exist. You might remember that the President got a good laugh when he said in that speech:
“The Interior Department is in charge of salmon while they’re in fresh water, but the Commerce Department handles them when they’re in saltwater,” he quipped. “And I hear it gets even more complicated once they’re smoked.”
That same anecdote appeared in today’s announcement. I get it that the President, who is not often hailed as witty, wants to repeat a rare moment of comedic glory. But I sure hope that line doesn’t become the basis for NOAA reorganization, because it doesn’t reflect reality. Obama makes it sound like the same fish are under the stewardship of NOAA when they’re off the coast but switch to become Interior’s charges when they cross the boundary to fresh water. Not so. The jurisdictional divide is between anadromous fish, which are NMFS’s problem whether they are in the ocean or in freshwater, and fish which spend their whole life in freshwater, which are FWS’s problem.
I’m sure there are a variety of organizational structures which could adequately serve the mission of protecting ocean resources. No doubt there are ways to make that happen in Interior. There are some reasons why environmental groups can be forgiven for not embracing the idea as currently proposed. As Rick says, political interference with ESA implementation was more apparent and troublesome at FWS than at NMFS during the Bush Administration. I would go further than that. I think in general that NMFS has been more willing, under several Presidents, to stick its neck out for its conservation mission than FWS has. Obama’s Interior Department under Ken Salazar has not been notably enthusiastic about its conservation efforts. And the lack of detail in itself is troubling. Agencies do develop their own cultures, and it’s not trivial to try to merge different cultures.
But for me, that bad presidential joke is enough. I wouldn’t trust any president with such a dismissive attitude toward any agency to reorganize that agency in a way that is appropriately sensitive to its mission.
Holly Doremus, CPR Member Scholar; Professor of Law, University of California, Berkeley. Bio.
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