President Obama's Response to Bush Consultation Rules under Endangered Species Act

In December, we discussed a rule finalized during the final weeks of the Bush administration which limited agencies’ consultation requirements under the Endangered Species Act (ESA).  In a March 3, 2009 memorandum to the heads of executive departments and agencies, President Obama requested that the Secretaries of the Interior and Commerce “review the regulation [and] determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purpose of the ESA.” The memorandum does not purport to repeal the rule, but rather requests that agency heads “exercise their discretion . . . to follow the prior longstanding consultation and concurrence practices involving the FWS and NMFS.” This memorandum shows a strong preference for agency consultations under the ESA, and may signal a push for future changes to the ESA regulations. The full text of the memorandum can be accessed here. Media coverage of President Obama’s ESA memorandum can be reviewed at the following links:Chicago TribuneCNNNew York Times