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Floor Speech on the Nomination of

David Hayes to be Deputy Secretary of Interior


Senator James M. Inhofe, Ranking Member on the Environment and Public Works Committee, May 12, 2009

As prepared for delivery: 

 Mr. President, I would like to speak on the nomination of David Hayes to be Deputy Secretary of Interior.  The Department of Interior has made some key decisions in the past few months that I think warrant special attention and discussion before we vote on this nominee.  I also want to note that several issues surrounding this nominee fall under the jurisdiction of the Environment and Public Works Committee, on which I serve as Ranking Member.  As Deputy Secretary at the Department of Interior, Mr. Hayes would oversee the implementation of the Endangered Species Act, a law that the EPW Committee oversees.

As Chairman of the EPW committee for four years, and now in my third year as Ranking Member, I have worked a considerable amount with the Department of Interior, specifically the Fish and Wildlife Service, and its implementation of the Endangered Species Act.  As Ranking Member, one of my roles is to exercise rigid oversight of executive branch actions under EPW jurisdiction.  In the past, I have seen many good things come from the Department of Interior, such as the Partners for Fish and Wildlife program, which conserves habitat by leveraging federal funds through voluntary private landowner participation, as well as the delisting of the Bald Eagle, showing what good the ESA can accomplish.  However, recent actions to reverse rules related to ESA have bothered me.

Through my role as Ranking Member on the EPW committee, I have become concerned with the possibility of the ESA being used as a backdoor for greenhouse gas regulation following the listing of the polar bear as a threatened species.  In April, I joined other Senators in a letter to Commerce Secretary Locke urging him not to reverse regulations preventing the Endangered Species Act from regulating carbon dioxide.  Now as we move to debate the David Hayes nomination this week, we must again carefully consider the motives of this administration in using the Endangered Species Act.  ESA should be used as a tool for protecting truly threatened and endangered species, not for controlling the emissions of greenhouses gases from potentially every source, big or small, in America.

Two weeks ago I voted for Tom Strickland to become the new Assistant Secretary for Fish, Wildlife, and Parks, after he was reported out of our committee.  As with David Hayes, I took issue with the nomination of Assistant Secretary Strickland, raising questions concerning the administration’s decision to reverse rules on the listing of the polar bear and modifications to the Section 7 consultation process. Thankfully, just last week, Assistant Secretary Strickland and Secretary Salazar upheld the polar bear rule. While the decision by Interior to retain this rule shows good judgment by this administration, potential lawsuits by radical environmental groups still threaten to undermine the original intent of the Endangered Species Act.

What is most troublesome, however, is the decision by Interior to overturn the Section 7 consultation rule in complete disregard of the Administrative Procedures Act.  That is in direct contrast to President Obama’s commitment to transparency and public process. Moreover, revoking this rule forces federal agencies to consult with the Fish and Wildlife Service for each new federal action that may result in the emission of greenhouse gases.  Under the ESA, a federal action agency is required to initiate consultation with the Fish and Wildlife Service or the National Marine Fisheries Service if it determines that the effects of its action are anticipated to result in the “take” (including potential harm) of any listed species, or the destruction or adverse modification of designated critical habitat.  This includes actions the agency takes itself, actions that are federally funded, as well as the issuance of a federal permit or license for a private party.

The final rule as published last December exempted from consultation actions which are “manifested through global processes and (i) cannot be reliably predicted or measured at the scale of a listed species’ current range, or (ii) would result at most in an extremely small, insignificant impact on a listed species or critical habitat, or (iii) are such that the potential risk of harm to a listed species or critical habitat is remote.”  Unfortunately, after Interior’s recent decision to reverse this rule, federal agencies are again subjected to consulting Fish and Wildlife Services in these areas.  This is a very costly process, which would cover any number of highway and construction projects, including, among others, those under the jurisdiction of the Army Corps of Engineers.

Senator Murkowski, the Ranking Member of the Senate Energy Committee, has made her position very clear on Mr. Hayes by placing a hold on his nomination until her questions to Secretary Salazar are fully answered.  The Department, and environmental groups, could manipulate the Endangered Species Act and the polar bear listing for purposes never intended by Congress.  Moreover, repealing regulations without public hearings or public comment is a bad way to start an administration, as it signals to the public that its views on important regulatory matters are irrelevant.  It is my hope that Mr. Hayes will fully explain his position on these important issues, and that the Department of Interior will practice openness and transparency, as President Obama has promised, by including the views of stakeholders and the public when it makes decisions.