President Obama took a huge step toward reversing the Bush Administration’s recently promulgated regulation allowing Federal agencies to forego consultation with the Fish and Wildlife Service and the National Marine Fisheries Service with respect to whether the Federal agencies’ activities will have an impact on the Endangered Species Act. In his memo to "Heads of Executive Departments and Agencies," President Obama requests that the Departments of Interior and Commerce "to review the regulation issued on December 16, 2008, and to determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purposes of the ESA."
Since the Bush Administration rule was issued as a regulation, President Obama cannot through the use of an Executive Order rescind or overturn the regulation. Thus, as an interim measure President Obama asked "the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices involving the FWS and NMFS."
As a side note, it should be pointed out that the Senate is currently considering an Omnibus Appropriations Bill from the House that would allow the Obama Administration to rescind both the ESA rule and a rule issued in conjunction with last year’s listing of the polar bear as threatened under the ESA. That rule exempted greehouse gas emissions and oil devleopment from regulation under the ESA even if they harmed the bears and their melting habitat.
Full text of President Obama’s Memorandum, as reported by the L.A. Times, follows on the next page.
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