Thursday, March 1, 2012

Spotted Owls, Critical Habitat, and Odd Executive Behavior

On Tuesday, the Department of the Interior released its proposed critical habitat designation for the northern spotted owl (press coverage here).  The designation covers a potentially large area, the spotted owl is, of course, a pretty high-profile species, and some of the proposed protective measures are pretty interesting.  Still, this would all be pretty standard ESA fare, but for one odd little twist.

Accompanying the proposed designation is a memorandum, released by the White House's Office of the Press Secretary and signed by Barack Obama himself, essentially reminding the Secretary of the Interior of Executive Order 13563, which was the centerpiece of the administration's deregulation push last year.  Here's how the memo describes the executive order:

Executive Order 13563 requires agencies to tailor 'regulations to impose the least burden on society, consistent with obtaining regulatory objectives' (emphasis added). Executive Order 13563 also requires agencies to 'identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice' while selecting 'those approaches that maximize net benefits.' To the extent permitted by law, our regulatory system must respect these requirements.

The memo goes on to direct the Secretary to consider and exercise his ability, under section 4 of the ESA, to consider economic impacts when crafting a critical habitat designation, and describes several specific ways the Secretary could use that authority, and thus comply with EO 13563.  All involve reducing the geographic extent of the designation.  The memo also directs the Secretary to quickly issue the economic analysis for this designation, and to amend the agency's regulations so that in the future designations and economic analyses are conducted concurrently. According to the memo, that concurrent publication also will promote efficient regulation.

There are several curious things about the substance of the memo.  Initially, it seems to reflect a presumption that critical habitat designations impose major economic burdens on regulated entities.  That may be conventional wisdom among those regulated entities, but, given the normal practices of the services, the accuracy of that wisdom seems a little dubious.  Similarly, any savings generated by not listing critical habitat may be ephemeral.  Limiting the scope of the designation may reduce short-term costs by curtailing protection of the species, but the species then is likely to be threatened or endangered for longer, which sounds like regulatory deflection or postponement rather than relief.

But the real question is: why bother?  The president (or OMB) doesn't need to write a memo, let alone release it to the world, to let the Secretary of the Interior know about EO 13563, or ESA section 4, or even the Administration's general preferences for habitat designations.  The White House does have telephones and other alternative mechanisms of communication, and it seems probable that the Secretary of the Interior would take the call.  Instead, releasing this document is purely an act of political theater, like releasing a symbolic ESA signing statement for the national audience. 

And does that audience actually care?  Of all the political issues currently captivating the country, the designation of critical habitat for the northern spotted owl seems a rather odd subject for this level of executive attention.  Long ago are the days when the Stanford Band could get itself banned from the state of Oregon by performing in the shape of a spotted owl, and the region seems to have long ago become accustomed the the reality of extensive ESA-based protection of its forests.  But the White House apparently feels differently.

- Dave Owen

http://lawprofessors.typepad.com/environmental_law/2012/03/spotted-owls-critical-habitat-and-odd-executive-behavior.html

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