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Wall Street Journal: Obama vs. Manatees
Evading the Endangered Species Act to impose new climate rules

WASHINGTON, D.C., January 24, 2016 -

The U.S. Fish & Wildlife Service this month proposed a new rule to crack down on predator control in Alaska, claiming it wants to better protect wildlife on national refuges. If only the Obama Administration cared as much about the protected critters that are getting in the way of its climate-change agenda.

President Obama’s Clean Power Plan imposes new rules to force the closure of coal-fired power plants in the name of climate change. Among those most likely to be shut down are the Big Bend Power Station and the Crystal River Plant in Florida. Problem is, both plants have been designated as primary warm-water refuges for manatees—listed as endangered in the 1960s and now considered “threatened.”

One threat to manatees is a plunge in water temperature, which causes lesions, gastrointestinal disorders, infections and death. The Fish & Wildlife Service, which runs a manatee recovery plan, estimates that two-thirds of manatees rely on coal plants that discharge heated water. Many plants are required to have Manatee Protection Plans, which are embedded in their federal Clean Water Act permits.

Section 7 of the Endangered Species Act is clear: Federal agencies are required to consult with Fish & Wildlife or the National Marine Fisheries Service if an agency action—such as a new rule—“may affect” (good or bad) a federally protected species. Yet the Administration’s draft climate regulation in January 2014 didn’t mention consultation over the manatees. GOP Senators David Vitter and Jim Inhofe noticed and in March 2014 sent EPA a letter demanding answers.

The EPA’s reply is that since the rule requires states to implement the generator shutdowns, this isn’t a federal issue, and so the consultation requirement doesn’t apply. Never mind that states are acting only because the feds are forcing them.

House Natural Resources Chairman Rob Bishop last year uncovered documents showing the EPA knew of the consultation problem and worked to evade its responsibilities. One email from an EPA employee in 2014 notes that questions about consultation are “lurking” and that the agency may need to “speak informally” to someone at Fish & Wildlife.

Fish & Wildlife director Dan Ashe told Congress in March that EPA had not consulted the service, though “there’s a very direct and obvious impact and relationship between that water discharge and those manatees.” Mr. Ashe has since walked back that statement, and Fish & Wildlife is now deferring to the EPA. It would never be this accommodating to a private company.

The Administration knows this is legally risky business. In 2011 a federal appeals court blocked a Bureau of Land Management regulation on grazing, rejecting the agency’s claim that it would have “no effect” on species. But the White House and EPA are willing to risk a legal rebuke on manatees on the bet that its climate regime will be too entrenched by the time a court considers it. Mr. Obama is in a rush to get his new climate machinery in place so a future President will find it hard to dismantle.

The Endangered Species Act is a flawed law that needs an overhaul, but Democrats have consistently blocked efforts to reform it. As long as it’s the law of the land, they should have to live with it like everyone else.

Click HERE to read the article online.

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