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Senator Protests ESA Action, Joins Hold on Interior Nominee

Sen. Lisa Murkowski (R-AK) Thursday protested the Obama administration's decision to "unilaterally overturn" a Bush-era regulation that allowed federal agencies to forgo "broad interagency consultations" with the Interior Department's U.S. Fish and Wildlife (FWS) and the National Oceanic Atmospheric Administration (NOAA) before taking any action that may affect threatened or endangered species.

The administration's action prompted Murkowski to add her name to a hold on David Hayes to be deputy secretary of Interior. Sen. Robert Bennett (R-UT) placed a hold on Hayes' nomination in March, saying he was dissatisfied with Hayes' response to his questions about disputed Utah oil and natural gas leases (see Daily GPI, March 19). The holds prevent the Senate from confirming Hayes until the issues are resolved.

"I'm disappointed that the administration would make such a dramatic and far-reaching change in an existing rule without complying with the long-standing federal process requiring public notice and comment by the American people and knowledgeable scientists," Murkowski said. "The decision to unilaterally overturn the rule undermines the formal ESA [Endangered Species Act] review process and the Administrative Procedure Act."

Commerce Department Secretary Gary Locke and Interior Secretary Ken Salazar Tuesday announced that the two departments were revoking the Bush-era rule, which they said undermined ESA protections (see Daily GPI, April 29). "By rolling back this 11th hour regulation, we are ensuring that threatened and endangered species continue to receive the full protection of the law...Federal agencies proposing to take actions that might affect threatened and endangered species will once again have to consult with biologists at the two departments," Salazar said.

In March President Obama directed the two secretaries to review the Bush administration's action with respect to interagency consultations on ESA matters, and Congress, in the Omnibus Appropriations Act of 2009, specifically authorized the secretaries to revoke the regulation, Interior said (see Daily GPI, March 4). Locke and Salazar said the two departments will conduct a joint review of the 1986 consultation rules to determine if any improvements should be proposed.

This turnaround in the ESA policy is another blow to the energy industry, requiring oil and natural gas permitting agencies and energy regulators, such as the Federal Energy Regulatory Commission, to engage in often time-consuming consultations with the FWS and NOAA's National Marine Fisheries Service.

Murkowski said the decision is the latest in a series of disappointing actions by the Obama administration that have raised questions about its commitment to the nation's energy security. The new rule, combined with a finding that the polar bear is threatened by climate change, could be used by environmental activists to challenge almost any development anywhere in the country on the grounds that any increase in greenhouse gas emissions threatens the Arctic habitat of the polar bear, she said.

"Every power plant permit anywhere that might increase carbon emissions could face a lawsuit," Murkowski said.

Other actions by the administration that are troubling include the cancellation of the 77 oil and gas leases in Utah; the 180-day delay of the five-year offshore lease plan; delay of a scheduled round of oil shale research and development leases; expanded federal protection of the yellow billed loon; and the determination that certain coal mining rules are "legally defective, she said (see Daily GPI, Feb. 11; Feb. 5).

Murkowski said the president has spoken frequently about the importance of producing more domestic oil and gas as the nation transitions to cleaner energy sources, but so far his actions have not matched his rhetoric. "Actions speak louder than words, and actions have consequences. I have watched with growing concern the actions of the administration with regard to domestic production. The actions don't match the words."

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