Welcome to The New Interior, a periodic update from Steptoe & Johnson LLP to keep you informed of coming changes at the Department of Interior, and for related matters on Capitol Hill and elsewhere with a new administration taking charge in Washington, D.C.  We intend to bring you the very latest on anticipated moves by the Obama Administration and in the 111^th Congress over the next several months, as a new direction takes shape for Interior-related positions and policies.

If you would like to speak with a Steptoe attorney about our Interior practice, please reply to this email or contact Tom Collier (202.429.6242) or Jody Cummings (202.429.8096). 

Salazar Gets Nod to Head Interior

Senator Ken Salazar (D-CO) has been nominated to lead the Department of the Interior in the Obama Administration. Prior to coming to the Senate, Salazar held several positions in Colorado state government, serving as its Attorney General, chief legal counsel to Colorado’s governor, and Executive Director of the Colorado Department of Natural Resources.

If past actions are any indication of future positions, Salazar could be difficult to peg on key resources issues.  During his Senate term, Salazar has been an advocate for expansion of offshore drilling in the Gulf of Mexico.  However, he has opposed oil exploration in the Artic National Wildlife Refuge and strongly criticized recent BLM oil shale exploration regulations and their impact on Colorado's water supply.  He also pushed the Bush Administration to lease in stages an area holding a large reserve of natural gas in Colorado, opposing a decision to grant a lease on the entire area at one time.

Environmentalists criticizing his nomination note that Salazar has voted against increased fuel efficiency standards for the US automobile fleet, voted to allow the Army Corps of Engineers to ignore global warming impacts in their water development projects, voted to support subsidies for the livestock industry and other users of public forest and BLM lands, and fought efforts to increase protection for endangered species and the environment in the Farm Bill.

Many believe Salazar could be more friendly to industry interests than most environmentalists would like.

DOI Subcabinet Appointments: What to Expect Next

Rumor has it that David Hayes, former Deputy Secretary of Interior, and now attorney in private practice has been asked to again take the Deputy Secretary position. He has edged out Jon Berry, former Assistant Secretary for Policy, Management and Budget and now Director of the Washington Zoo, who was also under consideration.  Look for an announcement in the coming days.

John Leshy, former Interior Solicitor; David Getches, University of Colorado law school professor; and Bob Anderson, former Assistant Solicitor for Indian Affairs, are all under consideration for Interior Solicitor.

Bob Stanton, former Director of the National Park Service, is under consideration for Assistant Secretary of Fish, Wildlife and Parks.

A current Salazar staff member has been tentatively selected to be Chief of Staff to the Secretary.

Leadership for Key Congressional Committees for 111th Congress

In the Senate, Majority Leader Harry Reid (D-NV) has recommended that Senator Jeff Bingaman (D-NM) retain his spot as Chairman of the Committee on Energy and Natural Resources, and Senator Byron Dorgan (D-ND) remain as Chairman of the Indian Affairs Committee.  In one significant committee leadership change, Senator Daniel Inouye (D-HI) will likely replace Senator Robert Byrd (D-WV) as Chairman of the Senate Committee on Appropriations. 

In the House of Representatives, Rep. Nick Rahall (D-WV) will remain Chairman of the Natural Resources Committee and Rep. Dave Obey (D-WI) will retain his spot as Chairman of the House Appropriations Committee.

“Midnight” ESA Regulations Alter Consultation Requirements – Will They Last?

Within a matter of days, regulations modifying consultation requirements under the Endangered Species Act are set to go into effect.  Under section 7 of the Act, federal agencies are required to ensure that actions they fund, authorize, permit, or otherwise carry out (e.g. issuance of a permit or license for a private project) will not jeopardize the continued existence of a listed species or adversely modify designated critical habitats. In this process, federal agencies first determine if their proposed action may affect a listed species or critical habitat. If so, they must then proceed with either formal or informal consultation with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service.

Under the new regulations, federal agencies may bypass existing consultation requirements if a federal action is not anticipated to adversely impact any member of a listed species and the action fulfills one of the following criteria:

• the action has no effect on a listed species or critical habitat, or
• the action is wholly beneficial, or
• the effects of the action can not be measured or detected in a manner that permits meaningful evaluation using the best available science, or
• the effects of the action are the result of global processes and cannot be reliably predicted or measured on the scale of species current range, or would result in an insignificant impact to a listed species, or are such that the potential risk of harm to a species is remote.

The new regulations have become a sore point for environmental advocates and have given rise to lawsuits against the federal government claiming that enactment of these modifications violate several federal statutes.  In a somewhat unusual step, the state of California has also filed an action to halt the regulations from taking effect, asking that a court block them until the Obama Administration has an opportunity to review their impact.   Although the Obama transition team has expressed opposition to the regulations, a lengthy rulemaking process to reverse them will have to be restarted if the regulations go into effect.

House Natural Resources Committee Chairman Rep. Nick Rahall (D-W.Va.) may also seek to overturn the regulations using the Congressional Review Act after consulting with other Democratic leaders.

Responding to criticism of the rulemaking, Bush administration officials have indicated that nothing in the modified regulations relieves an agency of its responsibilities to ensure that listed species remain unharmed during the completion of a federal action, regardless of whether consultation is undertaken or not.