Obama Suspends Bush ESA Rule:

Among the Bush Administration's more controversial, last-minute regulatory changes was a rule to relax the consultation requirement under Section 7 of the Endangered Species Act. Specifically, the rule allowed federal agencies the latitude to make their own initial determination as to whether they had to engage in consultation with the Fish and Wildlife Service or National Marine Fisheries Service over the potential adverse impacts on endangered or threatened species of activities funded, permitted, or undertaken by the federal government. In a presidential memorandum issued yesterday, President Obama called upon Interior and Commerce Departments (homes to the Fish & Wildlife Service and National Marine Fisheries Service, respectively) to reconsider the rule. Perhaps more significantly, the President also instructed all agency heads to "exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices involving the FWS and NMFS." In other words, federal agencies are to act as if the Bush Administration rule were never adopted, until such time the Obama Administration is able to put in place a new rule of its own.

Reactions to the memo are largely what one would expect. Environmentalists cheered, while industry warned of greater costs and permitting delays. From the Washington Post:

Francesca Grifo of the Union of Concerned Scientists, an activist group, said the switch would help guard against the potential conflicts of interest and lack of expertise that could color decision making by any agency hoping to press ahead with a particular project. "After years of scientific scandal, the Interior Department and its partner agencies need desperately to regain credibility by making decisions with honesty, clarity, and transparency," Grifo said.

But Bill Kovacs, the U.S. Chamber of Commerce's vice president of environment, technology and regulatory affairs, said reviving another layer of review "will result in even greater delays to projects -- including stimulus-backed, job-creating projects -- as agencies now grapple with the prospect of lengthy inter-agency consultations to determine, for instance, if a bridge project in Florida contributes to the melting of Arctic ice. This is such a departure from the spirit and the letter of the Endangered Species Act that we wonder if the law's drafters would even recognize it today."

A big question is how this rule will effect agency consultation obligations for actions that result in increased greenhouse gas emissions. Now that the polar bear is listed as a threatened species, some environmental groups argue that large projects permitted or funded by the federal government should be subject to Section 7 consultation due to their potential contribution to climate change and the consequent effect on polar bears. The Obama Administration, however, appears to be taking a slightly different view.

Administration officials said the move is not likely to trigger broad use of the Endangered Species Act to regulate greenhouse gas emissions. While the Bush rule specifically prohibited endangered species consultations on the basis of "global processes" such as climate change, an Interior official who asked not to be identified said under the new policy such a review would only be triggered if scientific evidence suggested "a causal connection" between emissions from a federal project and its effect on specific imperiled species or an identifiable part of its habitat.

A Strange Standard for Success:

In announcing his reversal of the Bush Administration's Section 7 consultation rule under the Endangered Species Act, President Obama declared: "For more than three decades, the Endangered Species Act has successfully protected our nation's most threatened wildlife, and we should be looking for ways to improve it, not weaken it." This is a strange thing to say, as the ESA has completely failed to recover threatened and endangered species. As I have noted here and elsewhere (see also here and here), the ESA has an abysmal record at recovering species.

Well over 1,800 species are listed as threatened and endangered under the ESA. As of this morning, when I checked on the FWS website, a total of 46 species have been "delisted" — that is have been removed from the list of threatened and endangered species. Of these, 26 were delisted because of an initial data error in the listing (FWS miscounted or misidentified a species) or due to extinction. (17 and 9 respectively.) Of the remaining species, many of these species' recovery have absolutely nothing to do with the Endangered Species Act. Several bird species, for example, were almost certainly helped by the de facto DDT ban, but this was done in 1972, a year before the ESA was enacted. Several other species, such as some species of Australian kangaroos and birds from Palau, are indeed doing better, but the ESA had no role with these species either. In the few instances in which the ESA might have helped, such as with the Aleutian Canada goose, the key actions had nothing to do with the Act's primary regulatory components. (The goose, for instance, was largely helped by predator control, not controls on private land.) In sum, it is not clear that there is a single species — not one of the 1,000-plus — that has been recovered due to the primary regulatory provisions of the Act. If this is President Obama's idea of "success," I don't want to know what constitutes a failure.

UPDATE: To be clear, as explained in some of the links above, I do not believe there is a single example — not one — of a species that was recovered due to the ESA's regulations of private land. But, some may wonder, is it at least helping species and preventing their extinction? Not likely. As I have blogged extensively (again at the links above) there is substantial evidence that, for many species, the ESA actually causes harm by discouraging habitat conservation and actually encouraging preemptive habitat destruction. It is impossible to prove what would, or would not, have occurred if we had a different species conservation law. But if, after 35 years, there are few-to-no examples of the ESA's regulations successfully recovering one of the 1600-plus listed species, and growing evidence that the law works against the sorts of measures — habitat conservation on private land — one can claim that there is no evidence of the law's "success," and ample reason to believe it is an utter failure.

SECOND UPDATE: Is it fair to use the number of recoveries as a measure of the ESA's success? Well, this is the standard the ESA itself establishes, and I think it is perfectly appropriate to measure the success or failure of a law based upon its own stated objectives. Section 2 of the Act explicitly states that the purpose of the Act is the "conservation" of endangered and threatened species. "Conservation," in turn, is explicitly defined in Section 3 to mean "to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary." So, conservation is recovery according to the express terms of the Act, and this is what the Act completely fails to do.