Talking Points as Prepared for Delivery
The Honorable Dirk Kempthorne
Announcement of Final Regulations Re: Section 7 of the ESA
12/11/08
Thank you for joining us today
On May 14 of this year – recognizing the effects that melting sea ice were having and are expected to continue to have on the survival chances of the polar bear – I announced that the U.S. Fish and Wildlife Service was listing the polar bear as a threatened species under the Endangered Species Act.
It was the right decision.
It utilized the Endangered Species Act for the purpose it was conceived – to identify, protect and ultimately revitalize threatened or endangered species.
And it followed the science.
Many cheered my announcement – most because they care about the polar bear and, like me, want to protect it.
However, some cheered because they thought they had a backdoor – a loophole, if you will – to implement climate change policies.
I was clear that day when I said - and now let me say again: “Listing the polar bear as a threatened species can reduce avoidable losses of polar bears. But it should not open the door to use the ESA to regulate greenhouse gas emissions from automobiles, power plants, and other sources. That would be a wholly inappropriate use of the Endangered Species Act. ESA is not the right tool to set climate change policy.”
At that time, several newspapers editorialized in agreement with me, including the New York Times. In fact, the Washington Post wrote, “Though the polar bear deserves protection, the Endangered Species Act is not the means and the Fish and Wildlife Agency is not the agency to arrest global warming.”
Congress is the most appropriate venue for discussions of national climate policy.
The President himself said: “There is a right way and a wrong way to approach reducing greenhouse gas emissions. The American people deserve an honest assessment of the costs, benefits and feasibility of any proposed solution. Discussions with such far-reaching impact should not be left to unelected regulators and judges, but should be debated openly and made by the elected representatives of the people they affect.”
When I listed the polar bear, almost 7 months ago to the day, many of you were there and heard my words – when I said: “The ESA regulatory language needs to be clarified. We will propose common sense modifications to the existing regulation to provide greater certainty that this listing will not set a backdoor climate change policy outside our normal system of political accountability.”
And so it should come as no surprise that today the Department of the Interior and the Department of Commerce are announcing final regulations clarifying a segment of the consultation process under Section 7 of the Endangered Species Act, particularly as it relates to global processes like climate change.
These changes represent common sense modifications. The rule was narrowed from the proposed regulation so there will be fewer opportunities for federal agencies to proceed without consultation.
These changes are the direct result of the comments received during the public comment process.
But in any case, the decision has always been with the federal agency as to whether to consult
Let me be clear – these regulations do not amend the ESA itself – only Congress can do that.
These are modifications to our regulations and they are very basic.
Section 7 of the ESA looks at a specific impact, on a specific species, from a specific action.
Under the ESA Section 7, federal agencies are required to ensure that actions they fund, authorize, permit, or otherwise carry out are not likely to jeopardize the continued existence of a listed species or adversely modify designated critical habitats.
Here’s how it works – those federal agencies first determine if their proposed action may affect a listed species or critical habitat. If so, they must then proceed with either formal or informal consultation with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service.
For decades under the ESA, federal agencies have made their own determinations about whether to consult on a project. That continues under this rule.
With the regulations finalized today, federal agencies must still comply with all existing consultation procedures, except in specific and limited instances where an action is not anticipated to harass, harm, kill or otherwise “take” a listed species AND:
The action has no effect what-so-ever on a listed species or critical habitat, such as replacing a culvert when the species is not present
Or
The action is completely and totally beneficial, such as expanding the no hiking zone from 15 yards to 30 yards around nesting sites
Or
The effects of the action are so insignificant that they can’t be detected or measured, such as when a federal project generates noise at such low levels that scientists can’t accurately detect its harm to a species
Or
The effects of the action are the result of global processes that are too broad to measure – whether from a power plant or a backyard barbeque.
However, nothing in this rule discourages federal agencies from pursuing the informal consultation process.
What we are doing is clarifying the threshold for consultation to occur. If science can not draw a direct causal link between an action and an effect on a listed species, as is currently the case for global processes like climate change, then consultation under the ESA is not necessary.
I recognize that any modifications involving the ESA are inherently controversial. The law evokes great emotion across the country.
Will everyone agree with me on this decision? I don’t expect so. Even within my own Department of 70,000 there are differences of opinion as to the process that was taken in making this decision.
But I am confident that we have taken a common sense approach, developed over months of work, to adopt needed and legally appropriate changes to our existing regulations.
Nothing in this regulation relieves a federal agency of its responsibilities to ensure that listed species are not harmed during an action, regardless of whether consultation is undertaken or not.
I appreciate your time and your consideration.
I’ll now turn to my Assistant Secretary for Fish and Wildlife and Parks, Lyle Laverty. As you all know, it is the Assistant Secretary’s responsibility to sign all changes to regulations.