During a visit to the Interior Department last week to celebrate its 160th anniversary, President Obama reversed an end-of-term Bush administration regulation that had gutted one of the signature environmental laws: the Endangered Species Act. Obama ordered the restoration of interagency consultation on projects that may affect threatened or endangered species while Interior Secretary Ken Salazar and the next commerce secretary review President George W. Bush's Dec. 16 directive to determine whether to pursue a new rule.
When then-Interior Secretary Dirk Kempthorne announced in May 2008 that the polar bear would be listed as a "threatened" species under the Endangered Species Act because of global warming, his finding was based on science. All the evidence pointed to the continued melting of the polar bear's arctic ice habitat. Under the law, the classification requires that federal agencies consult with the Fish and Wildlife Service on any actions or permits they grant that might jeopardize the species. But the law was never meant to regulate greenhouse gas emissions. Kempthorne's regulation got it right when he prevented "global processes" (climate change) from triggering such consultations. Nevertheless, the rule went a step too far by reinterpreting the Endangered Species Act to mean that agencies do not have to consult the Fish and Wildlife Service or any other service before taking actions that might affect any species, not just polar bears.
All that changed with Obama's announcement. "I've signed a memorandum that will help restore the scientific process to its rightful place at the heart of the Endangered Species Act," he said. That means asking agency heads "to follow the prior long-standing consultation … practices involving the FWS and (National Marine Fisheries Service)." This will not only restore the check on agency ambitions to complete projects, but the give-and-take in the consultation process will produce compromises that minimize the harm to protected species.
Just as important, while it didn't say so explicitly, the memo upheld the commonsense portion of the Bush rule; consultations still won't be triggered by the potential impact of a specific project on global warming. That keeps in place the guidance issued by the Fish and Wildlife Service last year to its staff that the best scientific evidence cannot make a causal connection between greenhouse gas emissions from a specific facility or government project and harm to listed species or their habitats.