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Trio of Presidential Memos Aims to Reverse Bush Environmental Policies: Science Integrity, Endangered Species Act Consultation, and Signing Statements

This article was originally published in the May 2009 edition of the Chester County Bar Association's monthly newsletter "New Matter."

Among the more controversial environmental actions of the last years of the George W. Bush Administration were charges that science was being manipulated to serve political policies. A prime example involved agency reports regarding the cause and effect of climate change and assertions that scientists were pressured by politicians to change or reword scientific reports. The political stakes were raised when the U.S. Supreme Court held in the landmark environmental case of Massachusetts v. EPA, that the EPA had the authority to regulate certain greenhouse gases.

In a presidential memorandum dated March 9, 2009, President Obama assigned the Director of the Office of Science and Technology Policy (“OSTP”) the task of ensuring the highest level of integrity in all aspects of the executive branch’s involvement with scientific processes. The President stressed that science and the scientific process must inform and guide decisions of the Obama Administration. The President further stressed that the public must be able to trust the science and scientific process that stands behind public policy decisions.

The Director of OSTP must develop a plan within 4 months to achieve this goal. The plan must be based on principles set forth in the March 9, 2009 memo, including: (a) the selection of candidates for science positions in the executive branch should be based on the candidate’s knowledge, credentials, experience and integrity; (b) each executive branch agency should have appropriate rules and procedures to ensure the integrity of scientific processes within the agency; (c) when scientific information is used in the development of public policy, the information should be subject to peer review, and each agency should accurately convey the information in complying with and applying relevant statutory standards; and (d) each agency should adopt additional provisions, including whistleblower protections, as are necessary to ensure the integrity of scientific information on which the agency relies.

In a memorandum dated March 3, 2009, President Obama aimed to reverse a joint regulation issued by the Departments of the Interior and Commerce in the waning days of the Bush Administration, that modified long standing provisions which required consultation with or concurrence of the U.S. Fish & Wildlife Service (“FWS”), and/or the National Marine Fisheries Service (“NMFS”) when evaluating actions that may affect endangered or threatened species. The President emphasized his belief that the Endangered Species Act (“ESA”) was a law which reflected a profound commitment of the Nation to preserve and protect threatened life forms.

The President concluded that the new regulation unwisely expanded the circumstances in which executive branch agencies did not have to consult with and/or seek the concurrence of FWS and NMFS. President Obama asked the Secretary of the Interior to review the regulation and decide whether to initiate new rulemaking actions on this issue. Until this is done, the new President asked that the heads of all agencies exercise their discretion and follow the prior longstanding procedures.

Finally, on March 9, 2009, President Obama issued a memorandum addressing the issue of presidential statements which have been issued on the occasion of signing bills into law. In the past, signing statements have been criticized because the statements either questioned the constitutionality of statutory provisions, or indicated that the Executive Branch would ignore the new laws on the basis of policy disagreements.

While recognizing that signing statements have an important function, President Obama stated that signing statements had been abused, and set forth a procedure that the new Administration would follow in order to avoid perceived problems. President Obama committed to, among other things (a) informing Congress of the Administration’s constitutional concerns about pending legislation in a timely fashion; (b) promising to avoid making conclusions that new laws are unconstitutional (given the legal presumption that laws are presumed to be constitutional) unless based on interpretations of the Constitution that are well-founded; and (c) making sure that signing statements are crafted with sufficient specificity to make clear the nature and basis of the objection.

Each of the memos concludes with the boilerplate statement that the memoranda are not intended to create any rights or benefits. In short, these are policy and guideline statements, which the government may (and probably will) disregard when deemed appropriate.

For more information, please contact John R. Embick at 215.829.9900 or jembick@thorpreed.com.

This Thorp Reed & Armstrong, LLP article is prepared in summary form and is not to be construed as legal advice or opinion on any specific fact or circumstance. We do not assume any responsibility to revise the Communiqué if there are subsequent changes in the law.

May 2009