Title 3—The President
Memorandum of February 28, 2012
Proposed Revised Habitat for the Spotted Owl: Minimizing
Regulatory Burdens
Memorandum for the Secretary of the Interior
Today, compelled by court order, the Department of the Interior (Department) proposed critical habitat for the northern spotted owl. The proposal is an initial step in gathering important information that will inform a final decision on what areas should be designated as critical habitat for the spotted owl, based on a full evaluation of all key criteria: the relevant science, economic considerations, the impact on national security, and a balancing of other factors.
Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), explicitly states that our "regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation" (emphasis added). Consistent with this mandate, Executive Order 13563 requires agencies to tailor "regulations to impose the least burden on society, consistent with obtaining regulatory objectives" (emphasis added). Executive Order 13563 also requires agencies to "identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice" while selecting "those approaches that maximize net benefits." To the extent permitted by law, our regulatory system must respect these requirements.
The Endangered Species Act (ESA) states: ‘‘[t]he Secretary shall designate critical habitat . . . on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat’’ (emphasis added). 16 U.S.C. 1533(b). The ESA also provides that ‘‘[t]he Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned’’ (emphasis added). Id. Under the ESA, scientific, economic, and other considerations are relevant to critical habitat designations. Under a regulation issued by the Department in 1984, however, the economic analysis follows the scientific assessment, rather than being presented simultaneously with it; one of the purposes of this memorandum is to direct you to propose revisions to that regulation.
Consistent with the ESA and Executive Order 13563, today’s proposed rule emphasizes the importance of flexibility and pragmatism. The proposed rule notes the need to consider ‘‘the economic impact’’ of the proposed rule, outlines a series of potential exclusions from the proposed critical habitat, and asks for public comments on those exclusions and on other possible exclusions. Private lands and State lands are among the potential exclusions, based on a recognition that habitat typically is best protected when landowners are working cooperatively to promote forest health, and362
