California Tries to Block Bush ESA Changes

The state of California has filed a lawsuit challenging the Bush Administration's last-minute changes to Endangered Species Act regulations.

In a filing Monday night with the U.S. District Court in San Francisco, attorney general Jerry Brown alleged that the Interior Department's proposed changes, which would eliminate agency obligations to consult with the U.S. Fish & Wildlife Service or NOAA Fisheries before engaging in development activities that might impact a listed species, violate the ESA itself.

“The Bush Administration is seeking to gut the Endangered Species Act on its way out the door,” Brown said. “This is an audacious attempt to circumvent a time-tested statute that for 35 years has required scientific review of proposed federal agency decisions that affect wildlife.”

The lawsuit also alleges that the Interior and Commerce departments, by issuing the new regulations, violated the National Environmental Policy Act by failing to consider the environmental ramifications of the proposed new regulations and the Administrative Procedures Act by not adequately considering public comments.

The Bush administration's late changes to the ESA regulations also remove a requirement that federal agencies consider greenhouse gas emissions before approving development projects on public land.

The regulations were proposed in August and finalized Dec. 16.

The complaint is here.

Salazar Nominated to Lead Interior

Colorado Democratic Sen. Ken Salazar will be the next Secretary of the Interior.

President-elect Barack Obama announced today in Chicago that he has asked Salazar, a first-term Senator, to join his cabinet.

Obama called Salazar, a “champion for farmers, ranchers, and rural communities,” that will “bring to the Department of Interior an abiding commitment to this land we love.”

He criticized the Bush Administration Interior Department as having had "too many problems and too much -- too much emphasis on big-time lobbyists in Washington and not enough emphasis on what's good for the American people."

Salazar said he would work to build American energy independence.

"I will do all I can to help reduce America's dependence on foreign oil,” Salazar said. “I look forward to working directly with President-elect Obama, as an integral part of his team, as we take the moon-shot on energy independence.”

The nominee later said in a press release that he would focus on the traditional priorities of the department, but with a new emphasis on renewable energy. He also mentioned protection of public lands.

"I look forward to helping build our clean energy economy, modernize our interstate electrical grid, and ensure that we are making wise use of our conventional natural resources, including coal, oil, and natural gas," Salazar said. "I look forward to protecting our national parks, public lands and open spaces, and America’s farm and ranchlands. I look forward to restoring our Nation’s rivers and working to resolve our water supply challenges."

Salazar will be replaced in the Senate after confirmation by an appointee of Colorado Gov. Bill Ritter (D).

Senate Committee Chairs in 111th Congress Announced

Senate majority leader Harry Reid, D-Nev., announced the names of Democrats who will chair the upper chamber's committees in the 111th Congress yesterday and there are some important changes.

The biggest is at Appropriations, where Sen. Daniel K. Inouye, D-Hawaii, takes over for ailing, 91-year old Sen. Robert Byrd, D-West Virginia. Inouye, who was first elected to the Senate in 1962, is 84.

West Virginia's junior U.S. senator, Jay Rockefeller, will chair the Commerce, Science and Transportation Committee.

Sen. Barbara Boxer, D-California, will continue to chair the Environment and Public Works Committee. Jeff Bingaman of New Mexico remains chair of the Energy and Natural Resources Committee, while Iowa Democrat Tom Harkin continues as chair of the Agriculture Committee and Kent Conrad of North Dakota chairs the Budget Committee.

Salazar Named Interior Secretary

The Denver Post is reporting that Sen. Ken Salazar, D-Colo., has accepted President-elect Barack Obama's offer to become U.S. Interior Secretary.

Salazar, who is in his first term in the Senate, formerly served as Colorado's attorney general and director of the state department of natural resources. He sits on the Senate Energy & Natural Resources Committee.

Obama's Environmental Team Coming Together

President-elect Obama has chosen his key environmental policy advisors, according to an article in the New York Times, and among those who will administer the nation's pollution control laws and determine energy policies may be a Nobel Prize-winning physicist.

From John Broder's article:

President-elect Barack Obama has selected his top energy and environmental advisers, including a Nobel Prize-winning physicist and the former head of the Environmental Protection Agency, presidential transition officials said Wednesday.

Collectively, they will have the task of carrying out Mr. Obama’s stated intent to curb global warming emissions drastically while fashioning a more efficient national energy system. And they will be able to work with strong allies in Congress who are interested in developing climate-change legislation, despite fierce economic headwinds that will amplify objections from manufacturers and energy producers.

The officials said Mr. Obama would name Steven Chu, the director of the Lawrence Berkeley National Laboratory, as his energy secretary, and Nancy Sutley, deputy mayor of Los Angeles for energy and environment, as head of the White House Council on Environmental Quality. Mr. Obama also appears ready to name Carol M. Browner, the E.P.A. administrator under President Bill Clinton, as the top White House official on climate and energy policy, and Lisa P. Jackson, who until recently was New Jersey’s commissioner of environmental protection, as the head of the E.P.A.

Aides cautioned that while Mr. Obama appeared to favor Ms. Browner for the new White House post, there were still issues to be resolved before the appointment can be formalized. Mr. Obama plans to name the environmental team next week in Chicago, aides said.

Chu has been a leading voice on climate change. A supporter of efforts to reduce greenhouse gas emissions, he nevertheless is a skeptic when it comes to claims that technology to resolve the world's energy needs is available. Check out this video of a talk Chu gave at a National Clean Energy Summit last summer:



Andrew Revkin interviewed Chu in 2006 and the professor's responses are interesting, as they certainly relate to the issues he is likely to face while running the Department of Energy:

Q. Are the intellectual forces that need to be focused on the energy-climate problem on board (top-flight physicists, for one)? If not, what needs to be done?

A. There is a growing awareness that the danger of substantial, disruptive climate change is of a high enough probability that more and more scientists are beginning to ask themselves and each other what they can do to contribute to a solution.

Q. Has the scale of what needs to be done been adequately expressed by folks in the climate discourse? If not, how could this be done and be taken seriously?

A. I am not sure most of the public realizes that the greenhouse gases that we are emitting today ha[ve] 100+ year consequences.

Q. I’ve been talking with others about the “valley of death” — the gap between near-term R and D money from venture capital and short-term-oriented government programs and long-term R and D money for “safe” perennials like fusion. What research needs lie in the middle that are not getting addressed? (This presumes you agree on the “valley.” If you disagree, I would love to know your view.) How can these needs get targeted given hurdles out there (earmarking, thirst for short term payoff, aversion to failure)?

A. I was part of the report “Rising Above the Gathering Storm.” In that report we recommended a ARPA-E [Advanced Research Project Agency - Energy; akin to the Defense Advanced Research Project Agency] as a potential solution to this problem. Ultimately, it will depend on the quality of the people who will manage any new program and the discipline of Congress NOT to earmark.

Q. What is your vote for the best role of government in shaping long-term efforts? (Is FutureGen the right kind of model? If not, what is..? is N.I.H. a good model? Is the Energy Department the wrong venue?) A lot of economists say industry is just not able to focus that far forward in R and D. Do you agree?

A. We need to alter the playing field with tax and fiscal polices (such as a carbon cap and trade with a minimum trading value so that companies could plan for sensible, long-term investments). This has to be done in order to account for the so-called “externalities” - real costs that are not yet included in the price of various forms of energy. Developed countries have made this step with air and water pollution by enacting outright regulations and installing a cap and trade system.

Once industry is assured that the bottom will not fall out (such as price of oil, gas, or the trading value of avoided carbon, etc., suddenly plummeting) long-term investments will be made. The wind industry in Denmark and Germany proceeded in this way. Off the top of my head, $70/avoided ton would work wonders in spurring long-term investments and innovation.

Interior Drops Rule Provision Recognizing Congressional Veto on Mining Permissions

The Interior Department has finalized a regulation that would purport to override a provision of the Federal Land Policy & Management Act of 1976 that gives Congress the authority to block mineral extraction activities approved by the agency.

Congress has used that authority, called a "legislative veto," six times in the past 32 years.

Most recently, Congress moved in June to block uranium mining on about one million acres near the Grand Canyon. The Bush administration has ignored Congress' wishes on this issue, moving forward with authorization of such mining anyway.

The rule has moved quickly through the regulatory apparatus. It was proposed in October and the public was allowed only 15 days to submit comments.

Three environmental groups filed a lawsuit against the Department of Interior in September, alleging that Interior Secretary Dirk Kempthorne has unlawfully ignored Congress' mandate on the Grand Canyon mining claims.

The legislative veto in the Grand Canyon case was approved by the House Natural Resources Committee, not by the entire House of Representatives. No resolution from the Senate or any of its committees were adopted.

FLPMA provides that a resolution of disapproval by the relevant committee of either chamber of Congress is enough to block a regulation issued under that statute.

Bush Seeks to Legalize Mountaintop Stripping

The Bush Adminisration's Environmental Protection Agency has approved a proposed rule that would allow the practice of stripping off mountain tops to find coal, and then dumping the debris into streams, to resume, according to a report in the McClatchy Newspapers.

A 1983 regulation prohibits the dumping of such mining debris, which often results from a common mining practice in the coal regions of Appalachia. The government in recent years has declined to enforce this rule.

Government figures show that about 535 miles of streams were buried or diverted between 2001 and 2005, about half of them in Appalachia.

The Department of Interior intends to finalize the rule this month, according to a report in the McLatchy Newspapers, and it will go into effect before President-elect Barack Obama takes office.

The Obama-Biden transition office has not commented on its plans for seeking the reversal of this and other recent changes to federal regulations.

Report: Bush to Relax Many Environmental Rules

A report by McClatchy Newspapers today says that the Bush administration plans to weaken a variety of environmental regulations before leaving office in January, including barriers to mining near the Grand Canyon and limits on mountaintop removal during coal mining operations.

The administration's actions would likely occur before Thanksgiving, the paper says, because Bush or the relevant cabinet officers would want them to go into effect before the inauguration of President-elect Barack Obama on Jan. 20, 2009.

Federal law requires many proposed regulatory changes to be considered for at least 60 days before they can be finalized.

Here is the McClatchy report on the various specific proposals under consideration

GRAND CANYON

Higher prices for uranium, driven by expanded interest in nuclear power, have resulted in thousands of mining claims being filed on land within three miles of the Grand Canyon.

The House of Representatives and Senate natural-resources committees have the authority under the Federal Land Policy and Management Act to order emergency withdrawals of federal land from future mining claims for three years, while Congress decides whether a permanent ban is needed. The House committee issued such a withdrawal order in June for about 1 million acres near the Grand Canyon, including the land the claims were filed on.

Now the Department of Interior has proposed scrapping its own rule that puts such orders from the congressional committees into practice.

The Interior Department could decide to use its own power to halt new claims, but it doesn't see any emergency that would prompt such action, department spokesman Chris Paolino said. The department would require environmental-impact studies before it approved any mining on the claims, he added.

One of the main hazards from uranium mining is seepage from tailings piles that poisons water. A report for the Arizona Department of Game and Fish said people would be at risk if they ingested radium-226, arsenic and other hazardous substances from water and tainted fish.

Environmental groups say the government must consider the possible danger of uranium leaching into the Colorado River, a source of drinking water for Phoenix, Las Vegas and Los Angeles. Arizona Gov. Janet Napolitano in March urged Interior Secretary Dirk Kempthorne to halt new claims and order a study of uranium mining near the canyon.

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MOUNTAINTOP-REMOVAL

COAL MINING

Another proposed rule change from the Department of Interior would change rules on dumping the earth removed for mining into nearby streams.

The rule, dating from the Reagan administration, says that no surface mining may occur within 100 feet of a stream unless there'd be no harm to water quality or quantity. The rule change essentially would eliminate the buffer by allowing the government to grant waivers so that mining companies can dump the rubble from mountaintops into valleys, burying streams.

The new rule would let companies explain why they can't avoid dumping into streams and how they intend to minimize harm. A September report on the proposal by the department's Office of Surface Mining said that environmental concerns would be taken into account "to the extent possible, using the best technology currently available."

The government and mining companies have been ignoring the buffer since the 1990s, said Joan Mulhern, an attorney with Earthjustice, a nonprofit law firm for environmental protection.

Before the rule can be changed, however, the Department of Interior must get written approval from Environmental Protection Agency Administrator Stephen Johnson.

"In order to concur, the EPA would have to find that the activities authorized by the rule would not violate water-quality standards, and all the evidence is to the contrary," Mulhern said.

AIR POLLUTION

Two rule changes would apply to electric-power plants and other stationary sources of air pollution.

The first mainly concerns older power plants. Under the Clean Air Act, plants that are updated must install pollution-control technology if they'll produce more emissions. The rule change would allow plants to measure emissions on an hourly basis, rather than their total yearly output. This way, plants could run for more hours and increase overall emissions without exceeding the threshold that would require additional pollution controls.

The other change would make it easier for companies to build polluting facilities near national parks and wilderness areas. It also would change the way that companies must measure the impact of their pollution.

ENDANGERED SPECIES

The Endangered Species Act prohibits any federal actions that would jeopardize the existence of a listed species or "adversely modify" critical habitats. The 1973 law has helped save species such as the bald eagle from extinction.

Bush administration officials have argued that the act can't be used to protect animals and habitats from climate change by regulating specific sources of greenhouse-gas emissions.

A proposed rule change would allow federal agencies to decide for themselves whether timber sales, new dams or other projects harm wildlife protected under the act.

In many cases, they'd no longer have to consult the agencies that are charged with administering the Endangered Species Act, the Fish and Wildlife Service and the National Marine Fisheries Service.

OTHERS

Among the rule changes and plans that might become final are commercial oil-shale leasing; a new rule that would allow loaded, concealed weapons in some national parks; and oil and gas leasing on wild public lands in West Virginia and Utah.

Many presidential administrations during the post-New Deal regulatory era have attempted to put in place a final spate of regulatory changes before leaving office.

Feds to Designate Critical Habitat for Polar Bears

The Interior Department announced today that it has agreed to designate "critical habitat" for the recently-listed polar bear.

A spokesman for the U.S. Fish and Wildlife Service said the agency doesn't yet know what portion of the Chukchi Sea might be designated and noted that the federal government is coping with uncertainty about how much of the Arctic Ocean region may be free of ice in the summer in future years.

Because the Endangered Species Act prohibits federal government actions that could damage critical habitat, the decision could result in restrictions on future offshore oil drilling in the Arctic.

The announcement came as part of a settlement of a lawsuit challenging the Bush Administration's failure to designate critical habitat filed by several environmental advocacy organizations in March.

The lawsuit was filed in the federal district court in Oakland, CA. According to Kassie Siegel, a spokesperson for one of the environmental group plaintiffs, the critical habitat designation will be made next year. The government agreed to a June 30, 2009 deadline for the final specification of critical habitat for the polar bear.

Enviros Sue to Force Wolverine Listing

Environmentalists have challenged the Bush Administration's refusal to list the wolverine as an endangered or threatened species. In a complaint filed Sept. 30 in federal court in Missoula, MT, the plaintiffs argue that there is "substantial genetic discontinuity" between Canadian and U.S. populations of the mammal and no substantial migration or cross-breeding and thus that the American wolverine population is "discrete" and entitled to Endangered Species Act protection.

The U.S. Fish and Wildlife Service denied a petition to list the wolverine in March on grounds that the species would survive even if all American individuals were extirpated because of genetic links between those wolverines and wolverines in Canada.

The case involves wolverines outside of Alaska.

Global climate change is an issue related to the fate of the wolverine, as the creature requires spring mountain snowfall to rear young.

Feds to Withdraw Wolf De-Listing?

The Associated Press reports that the Bush Administration plans to withdraw its ruling de-listing the Northern Rocky Mountains gray wolf.

If true, such a decision would mean that the wolves of Montana, Idaho and Wyoming would remain protected by the Endangered Species Act.

A federal judge in Montana ruled in July that the de-listing was unlawful.

Alaska Files Polar Bear Lawsuit

Alaska has filed its lawsuit challenging the listing of the polar bear as a threatened species.

The listing, announced by the Interior Department in . . ., is based on a conclusion that the bear's habitat is being lost as ice melts in the Arctic.

According to a report in the Anchorage Daily News:

Polar bears rely on sea ice for hunting ringed seals. In recent years, summer sea ice has receded far beyond the relatively shallow, biologically rich waters of the outer continental shelf, giving polar bears less time in prime feeding areas.

The bear's numbers rebounded after the 1970s, but conservation groups contend that was in response to measures taken to stop over-hunting.

Polar bear researchers fear recent effects of the loss of sea ice on Alaska polar bear populations. A 2006 study by the U.S. Geological Survey concluded that far fewer polar bear cubs in the Beaufort Sea were surviving and that adult males weighed less and had smaller skulls than those captured and measured two decades previously - trends similar to observations in Canada's western Hudson Bay before a population drop.

However, Alaska authorities argue that the listing was not justified on the basis of
reliable scientific information.

Most experts on the ESA, however, disagree.

Should the Wolverine Be Put on the Endangered Species List?

The wolverine (Gulo gulo) was once a ubiquitous presence across the United States.

According to the Wolverine Foundation,

The historical North American distribution of the wolverine included the northern part of the continent southward to the northernmost tier of the United States from Maine to Washington state. It extended south along the Sierra-Cascade axis through Oregon into the southern Sierra Nevada in California and along the Rocky Mountains into Arizona and New Mexico. Records of the wolverine within the upper midwest apparently pre-date human settlement, with the animal most likely absent by the early 1900's. The wolverine has been extirpated from the northern plains states east of Montana.

In California, the historic range of the wolverine included much of the north coastal area and the Sierra Nevada. . . .

Wolverines likely occupied a wider variety of habitats during pre-settlement times as evidenced by historical presence in upper mid-western states, and fossil evidence of extant representatives in Great Basin habitats of southern Idaho. Human encroachment into historically occupied wolverine habitat may have forced the wolverine into its present distribution.

The Bush administration, disregarding the loss of range in this country and the decline of the species to no more than several hundred individuals in the northern Rockies, declined in March to list the wolverine as an endangered species. The Interior Department justified its decision on grounds that sufficient numbers of wolverines exist in Canada to make extinction unlikely.

Now the New York Times has weighed in with an editorial urging Bush to reconsider.

The paper specifically took aim at the administration's rationale that the animal is plentiful enough in other countries to preclude protection here:

If that logic — ignoring the health of an animal here if it is doing well elsewhere — had been allowed to prevail, many of the act’s notable successes, including preserving the grizzly bear and the American bald eagle, would never have happened.

Several environmental groups are considering a lawsuit challenging the administration's refusal to list the wolverine.

Judge Orders Gray Wolves Returned to Endangered Species List

The Rocky Mountain gray wolf is again an endangered species.

The population numbers haven't changed since the Bush Administration removed the species a few months ago. Instead, a federal judge in Montana issued an injunction Friday requiring the Interior Department to restore Canis lupus to protected status.

According to a New York Times article to be published in Saturday's editions, the court's decision was heavily swayed by the administration's decision to reverse course from an early refusal to allow Wyoming to put in place a management plan allowing extensive hunting.

According to a press release issued by Natural Resources Defense Council, one wolf per day has been killed, with mortality exceeding 100 animals, since the Bush Interior Department removed Endangered Species Act protections on March 28, 2008.

The gray wolf was originally listed as an endangered species in 1973, shortly after the Endangered Species Act became law. The species was eliminated from about 95 percent of its habitat in the United States by the 1930s after a lengthy, government-sponsored extermination campaign.

An Ice-Free North Pole This Year?

This summer could see the North Pole ice-free for the first time since the Pleistocene era, say scientists at the University of Colorado at Boulder.

Satellite data accumulated by CU's National Snow and Ice Data Center show that relatively young sea ice that is no more than about 60 inches deep and much more susceptible to melting away now comprises only 72 percent of the Arctic ice sheet. Using that estimate, scientists at the center see a 50 percent chance that ice at the highest point in the Arctic will melt by the summer's end.

Center research Andy Mahoney says the weather will determine whether the prediction turns out to be accurate.

"It will probably come down to how cloudy it is this summer," Mahoney told ABC News. "If there's clear skies and if atmospheric patterns resemble last year's, you're going to see a lot more melt."

The loss of Arctic sea ice would likely cause the planet's atmosphere to heat up even more because the ice pack bounces the sun's rays back into space. This reflective property, known as albedo, also prevents the rays from reaching the ocean, where heat is absorbed.

Therefore, a loss of sea ice results in warmer ocean waters, which in turn increases the melt of the ice even more.

"Losing the ice sheet means losing an important way of cooling down," Mahoney told ABC News. "As a result, global warming would accelerate as the ice retreats."

Alaska Will Sue U.S. to Stop Polar Bear Listing

The state of Alaska says it will sue the Bush Administration to prevent the listing of the polar bear as a threatened species.

The announcement by Gov. Sarah Palin (R) said that Alaska will file the lawsuit in the federal district court in Washington, D.C.

"We believe that the listing was unwarranted and that it's unprecedented to list a currently healthy population based on uncertain climate models," said Alaska Assistant Attorney General Steven Daugherty.

Daugherty also criticized the long-established consultation process set forth by the Endangered Species Act, arguing that it "is a long and time-consuming process" and "just, basically, a big time-and-money-waster."

Polar Bears Listed as Threatened Species

After a lengthy delay, federal officials listed the polar bear as a threatened species under the Endangered Species Act today.

Interior Secretary Dirk Kempthorne said that shrinking summer ice is the most significant threat to the animals.

"Because polar bears are vulnerable to this loss of habitat, they are—in my judgment—likely to become endangered in the foreseeable future," Kempthorne said during a press briefing.

However, Kempthorne also said the listing would not affect U.S. climate change policies. He argued that scientists have not established that greenhouse-gas producing human activities have an adverse impact on individual polar bears.

"That would be a wholly inappropriate use of the Endangered Species Act," Kempthorne said. "ESA is not the right tool to shttp://www.blogger.com/post-create.g?blogID=1612962387080512646et U.S. climate policy."

Kempthorne also announced that a provision of the Endangered Species Act allowing activities consistent with the Marine Mammal Protection Act to go forward would be applied to the polar bear.

The impact of that ruling means that oil exploration within the bear's habitat will be allowed to continue, as will subsistence hunting of polar bears by native Americans and trade in native handicrafts made from the animal's fur and other body parts. Import of polar bear products made in Canada will be banned.

The U.S. Geological Survey concluded in 2007 that two-thirds of polar bears could go extinct by 2050.