February 28, 2009

Are the days of the new ESA Section 7 regs numbered?

By Are the days of the new ESA Section 7 regs numbered?

OMB Watch reports on the passed House Omnibus Appropriations FY2009 bill, which contains a provision allowing the Secretaries of Commerce and Interior to withdraw the new Section 7 regs without having to go through any of the normal APA steps usually required for withdrawing existing regulations.  Unfortunately, OMB Watch falls into the easy trap of mischaracterizing the effect of the new Section 7 regs.

For example, OMB Watch states:

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.

Much of this is demonstrably false.  The new regs still require consultation whenever the action agency concludes that a proposed action may adversely affect listed species or their critical habitat.  The only actions that are exempt from consultation under the new regs are those which have only beneficial effects, or no effects at all, or effects so slight or uncertain as not to be reasonably susceptible to quantification or qualification.  It's difficult to understand how one could fairly characterize these regs as "eliminat[ing] the consultation requirement."

What to read next