Endangered Species Law & Policy

On June 15, 2015, Senator James Inhofe (R-Okla.), Chairman of the U.S. Senate Committee on Environment and Public Works, and Congressman Rob Bishop (R-Utah), Chairman of the U.S. House Committee on Natural Resources, sent a letter to Gina McCarthy, Administrator for the U.S. Environmental Protection Agency (EPA), criticizing the EPA’s failure to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) regarding the potential impacts of the Obama administration’s proposed Clean Power Plan on endangered and threatened species. Section 7 of the Endangered Species Act (ESA) requires federal agencies to consult with the Services when an agency takes an action that may affect a listed species or its designated critical habitat. The Congressmen’s letter alleges that the two rules proposed by the Obama administration to reduce carbon dioxide emissions from power plants may affect a plethora of endangered species whom the EPA has found to be affected by climate change.

Previously, the EPA engaged in an analysis of the existing rule regulating power plants and found that, because the rule was likely to have positive effects on species by reducing overall greenhouse gas (GHG) emissions, section 7 consultation was unnecessary. The letter of June 15 alleges that the EPA had to engage in consultation regarding the new power plant rules because the new rules  will result in the early closing of a significant number of coal-fired power plants and coal-fired generating units, and such closings are precisely the kind of real-world impacts the EPA must assess before promulgating a rule. Specifically, the letter points to two power plants in Florida that are designated manatee refuges whose closures would significantly and adversely affect the endangered manatee.

The letter also requests that the EPA turn over all records, documents, analyses, memoranda, and communications concerning the potential impacts of the rules on endangered species and provide evidence that the EPA fulfilled its obligations to analyze those impacts and consult with the Services. The letter requests that the EPA provide these documents to the congressional committees by June 22, 2015.