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Obama Administration Revokes Rule Changes to Endangered Species Consultation Regulations

By: Paul S. Weiland, Robert D. Thornton
05/05/09

On April 28, 2009, the Obama Administration announced that it is revoking the controversial Endangered Species Act ("ESA") rule promulgated by the Bush Administration to streamline the ESA section 7 inter-agency consultation process and to limit the scope of ESA consultations on agency actions with greenhouse gas ("GHG") emissions. The revocation of the rule will likely result in an increase in ESA litigation against federal agency approvals of highways, power plants, urban development and other projects with GHG emissions.

Notice of the Administration's decision is available here.

Discussion

The Bush Administration drafted the rule at issue to limit consultation requirements for the effects of individual sources of GHG emissions and their contribution to global climate change. It also codified several aspects of informal consultation that – according to the preamble to the rule and the rule itself – were intended to streamline and provide increased predictability to the process. Finally, it clarified the definition of direct, indirect, and cumulative effects. The environmental community criticized the Bush Administration for promulgating the rule, which was finalized on December 16, 2008, without adequate opportunity for public notice and comment. The environmental community also claimed that the rule violated the ESA by delegating authority to make certain ESA determinations by the federal action agency instead of by the federal wildlife agencies.

Several environmental groups challenged the rule immediately upon the adoption of the rule. Center for Biological Diversity v. Kempthorne, N.D. Cal. Case No. 08-5546 (N.D. Cal. Dec. 11, 2008). But no court reached the merits of any challenge to the rule in the brief time between its publication and subsequent revocation.

Thus far, it is unclear how the Obama Administration intends to address climate change during the consultation process. Certain environmental groups have argued that any federal action within the ambit of section 7(a)(2) that results in any appreciable or measurable increase in greenhouse gas emissions triggers the Endangered Species Act consultation requirements. The implications of such an interpretation are profound: federal activities that heretofore had no effects on endangered or threatened species would be subject to the consultation requirements solely as a result of their greenhouse gas emissions.

In its press release, the Obama Administration leaves the door open for fine tuning of the pre-existing consultation regulations. But it is not clear what, if any, fine tuning will occur. In the meantime and without the benefit of guidelines to explain how federal agencies should consider climate change during the consultation process, both agencies and those parties that depend on federal agencies for funding or approvals are left to their own devices as they struggle to comply with ever evolving consultation requirements.

Paul Weiland is the Land Use Practice Group Leader at Nossaman. He counsels clients regarding environmental and land use matters and litigates such matters in trial and appellate courts under a variety of statutes, including the Endangered Species Act. He can be reached at 949.833.7800 or pweiland@nossaman.com.  

George Mannina has more than three decades experience with environmental litigation and government relations. He has demonstrated expertise with the Endangered Species Act, oceans and fisheries law, the Superfund Natural Resource Damages, and the Clean Water Act. He can be reached at 202-887-1491 or
gmannina@nossaman.com.  

Robert Thornton has practiced environmental law for over twenty-eight years and represents landowners, resource developers, and public agencies on a variety of endangered species matters for complex projects. He can be reached at 949.833.7800 or
rthornton@nossaman.com.  

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