Endangered Species Rule Targeted in House Spending Bill

The House version of the FY 2009 omnibus appropriations bill, passed on Feb. 25, contains a provision that could reverse a Bush-era rule that weakened the Endangered Species Act. The regulation, published jointly Dec. 16 by the departments of Interior and Commerce and effective as of Jan. 15, was pilloried by environmentalists who say it will cut experts out of the process for listing species as endangered.

The spending bill (H.R. 1105) gives new Interior Secretary Ken Salazar and the incoming Commerce Secretary the authority to withdraw the regulation, no questions asked. Under normal circumstances, an agency would have to undertake a brand new rulemaking in order to undo an old rule. The provision in the spending bill effectively removes that requirement by giving the secretaries unilateral authority to nullify the rule. Here is the text:

“SEC. 429. (a) During the 60-day period beginning on the date of the enactment of this Act—
(1) the Secretary of the Interior and the Secretary of Commerce may withdraw or reissue the rule […] without regard to any provision of statute or regulation that establishes a requirement for such withdrawal;”

Lots of work remains if the rule is to be undone: The Senate will have to approve the provision too, and the secretaries will have to hold up their end of the bargain.

When the Bush administration proposed the rule in August 2008, it was met with jeers. The administration proposed allowing federal land-use managers to approve projects like infrastructure creation, minerals extraction, or logging without consulting federal habitat managers and biological health experts responsible for species protection. Consultation had been required.

When the administration published the final rule, not only did it eliminate the consultation requirement, it took a parting shot at efforts to protect species from the effects of climate change.

The final rule forbids global warming from being considered as a factor in species decisions. The provision was not included in the proposed rule, so the public could not comment on it.

Stay tuned for updates.

Image by flickr user ironmanixs, used under a Creative Commons license.

(Matthew Madia 02/27/09)

Comments

by Anonymous (not verified) on 03/02/09

I am concerned that too much

I am concerned that too much unregulated power is being given to the Department of the Interior.Regulations are in place so that someone can be held accountable for whatever actions that they take.If you just allow some bureaucrat to make a decision much harm can be done in a hurry without oversight.

by Michael Keenan (not verified) on 02/28/09

What is really disturbing

What is really disturbing about this is that the "formatting" change has been ignored and not repealed too. This is about species rules plural and not just rule. I am glad the polar bear got action but why where the history or format changes not considered? I smell a back room deal or loophole in the making. Omnibus Appropriations Act, 2009 (Introduced in House) http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.1105.IH: scroll down to section VIII COOPERATIVE ENDANGERED SPECIES CONSERVATION FUND http://thomas.loc.gov/cgi-bin/query/F?c111:1:./temp/~c111GuixOm:e579697: under section IV Sec. 429. (a) During the 60-day period beginning on the date of the enactment of this Act-- (1) the Secretary of the Interior and the Secretary of Commerce may withdraw or reissue the rule described in subsection (c)(1) without regard to any provision of statute or regulation that establishes a requirement for such withdrawal; and (2) the Secretary of the Interior may withdraw or reissue the rule referred to in subsection (c)(2) without regard to any provision of statute or regulation that establishes a requirement for such withdrawal. (b) If the Secretary of the Interior or the Secretary of Commerce (or both) withdraws a rule under subsection (a), such Secretary shall 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. (c) The rules referred to in subsection (a) are the following: (1) The final rule relating to `Interagency Cooperation under the Endangered Species Act', issued by the United States Fish and Wildlife Service and the National Marine Fisheries Service and signed November 26, 2008, by the Assistant Secretary of Fish and Wildlife and Parks of the Department of the Interior and the Deputy Assistant Administrator for the Regulatory Programs of the National Marine Fisheries Service. (2) The final rule relating to `Endangered and Threatened Wildlife and Plants; Special Rule for the Polar Bear', issued by the Assistant Secretary of Fish and Wildlife and Parks of the Department of the Interior on December 10, 2008. Minority Rules committee action at #9: http://rules-republicans.house.gov/Bills/Read.aspx?id=162