[Congressional Record (Bound Edition), Volume 155 (2009), Part 9]
[Senate]
[Page 12144]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       NOMINATION OF DAVID HAYES

  Mr. INHOFE. Mr. President, I would like to speak on the nomination of 
David Hayes to be Deputy Secretary of the 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 4 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 greenhouse 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.

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