Obama's endangered species ruling could allow climate legal action

President Obama took another step towards regulating carbon this week, calling on agency officials to review changes to the Endangered Species Act imposed during the last months of the Bush adminstration that limit the prospect of climate change-related legal action against carbon-intensive projects.

Rule 50 CR Part 402 eliminated a requirement under the Endangered Species Act for agencies to consult with the Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS). These agencies, which fall under the Department of the Interior, are responsible for ensuring that the Act is upheld.

The rule, which was listed in the Federal Registry on 16 December and came into force on 15 January, just days ahead of Obama's inauguration, not only removed this requirement for many cases, but also explicitly dismissed any connection between climate change and endangered species, on the grounds that "effects of such action are manifested through global processes and cannot be reliably predicted or measured at the scale of a listed species' current range".

"I hereby request the secretaries of the Interior and Commerce to review the regulation issued on 16 December 2008, and to determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purposes of the ESA," said the president in a memorandum this week. "Until such review is completed, I request the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices involving the FWS and NMFS."

Obama's transition team had already vowed to reverse such environmental regulations, which were designed in part to stop environmental groups from using the Endangered Species Act as a carbon-regulation tool. For example, some green groups had been investigating using the climate change-related threat to the polar bear posed by the disappearance of its habitat to underpin legal action against carbon-intensive industries.

Former president Bush and several agency heads had repeatedly questioned the use of existing legislation in this way.

However, it may be a moot point, given that president Obama has explicitly called for new legislation designed specifically to regulate carbon, in the form of a cap-and-trade bill.

The US Chamber of Commerce, which has warned in the past about the economic effects of carbon regulation, did not respond to a request for comment.