Obama Administration Revokes Bush ESA Rule

The Obama administration has revoked a controversial regulation that eliminated the long-standing requirement forcing government agencies to consult with biologists at the Fish and Wildlife Service and NOAA Fisheries when proposing an action that would impact a species listed as endangered or threatened.

Interior secretary Ken Salazar and Commerce secretary Gary Locke, in immediately revoking the last-minute Bush administration regulatory change, used power given them by a provision in the 2009 Omnibus Appropriations Act. In addition, President Barack Obama had directed the cabinet officials to review the Bush ESA regulation.

The Bush administration's regulation was finalized in December 2008 and took effect January 15, 2009.

Report: Obama to Order EPA to Reconsider Denial of California Preemption Exemption

President Obama will order the Environmental Protection Agency to reconsider the Bush administration's decision to deny California permission to impose tough new limits on the emissions of greenhouse gases by motor vehicles, according to a report posted this evening on the New York Times website.

The door will be open for at least 13 additional states to begin applying new emission limits similar to California's if the Golden State's application for an exemption from the preemption of tougher state-level air quality rules by the federal Clean Air Act is granted upon that reconsideration.

The California state legislature enacted a law in 2002 that requires emissions of greenhouse gases from tailpipes to be reduced by 30 percent by 2016.

Auto manufacturers sued to block implementation of the law in 2007. The lawsuit was dismissed by a federal district court later that year.

But the Bush administration's EPA announced in December 2007 that the federal government would not grant California the exemption.

EPA's refusal of the exemption, which according to some reports was issued by administrator Stephen L. Johnson under White House pressure despite recommendations from his staff that it be accepted, provoked a lawsuit by the state of California.

Obama had promised in his campaign to re-visit the Bush administration's decision to prevent California from imposing stricter air quality standards than those put in place by EPA.

California Gov. Arnold Schwartzenegger formally requested that the Obama adminstration reconsider the denial of its exemption application Jan. 21.

The NYT report also said that Obama will order the Department of Transportation to issue interim regulations requiring the auto industry to increase fuel efficiency standards.

Those rules, which are required under the Energy Independence and Security Act of 2007 (EISA), Pub. L. 110-140, 121 Stat. 1492, were drafted but not finalized by the Bush administration.

EISA requires auto makers to raise average fuel economy in all of their models, including light trucks, to 35 mpg by 2020.

Obama Kills Effort to De-List Northern Rockies Gray Wolves

President Barack Obama ordered Tuesday that all pending federal regulations be suspended, including one that would de-list two populations of the gray wolf, including those native to the northern Rockies.

The new president acted through a memorandum issued to all federal agencies by his chief of staff, Rahm Emanuel, shortly after being inaugurated.

The rule de-listing the gray wolf, which had previously been finalized in February 2008, was struck down by a federal judge last summer.

The Bush administration had announced Jan. 14 that it would again de-list the Northern Rockies population of the wolf, as well as a population in the western Great Lakes region, as of Feb. 13.

A previous attempt by the Bush administration to re-classify all populations of the gray wolf, except the population in the southwest, as threatened species was blocked by federal district courts in Oregon and Vermont in 2005.

The gray wolf was originally listed as an endangered species throughout the 48 continental states and in Mexico in 1974.

Photo courtesy U.S. Fish and Wildlife Service.

Federal Judge Halts Redrock Country Oil & Gas Leases

A federal judge in Washington, DC has blocked Bush administration efforts to open 110,000 acres of land in Utah's famous red rock country for oil and gas drilling.

The judge, Ricardo Urbina of the U.S. District Court for the District of Columbia, issued a temporary restraining order. He wrote in his opinion that he needed more time to evaluate the arguments of both parties. As is necessary in any case in which an injunction is issued, the judge found that the plaintiff conservation groups "have shown a likelihood of success on the merits" and that the "'development of domestic energy resources' … is far outweighed by the public interest in avoiding irreparable damage to public lands and the environment."

Environmentalists welcomed the decision.

"Under the Bush administration, the Bureau of Land Management pushed through Resource Management Plans that treated some of America's most sensitive and spectacular public lands as the private playgrounds of the oil and gas companies," Grand Canyon Trust executive director Bill Hedden said. "Today's heartening court decision gives these unique places a last second pardon from forever sacrificing their archaeological treasures, pristine air and remote wildness in order to sate only an hour or two of our national addiction to oil and gas."

Urbina's ruling means that the checks written to the U.S. Treasury by the successful bidders for the drilling rights cannot be cashed and no drilling activity can occur on the affected land.

The parcels at issue are near Arches and Canyonlands National Parks and Dinosaur National Monument and some are located within the roadless Desolation Canyon area, which is being considered for wilderness designation. The area covered by the auction also contains a large amount of prehistoric archaeological sites and other cultural resources, including those within Nine Mile Canyon.

The parcels had been auctioned Dec. 19 after having been announced on election day and the Bureau of Land Management had announced it would finalize the leases on Jan. 19.

The issuance of the temporary restraining order will give the incoming Obama administration an opportunity to re-consider the sale of the leases. Aides to the president-elect have voiced concerns about opening the parcels to oil and gas drilling.

Judge Urbina's decision came in Southern Utah Wilderness Alliance et ux. v. Allred et al., No. 1:08-CV-02187-RMU (D.D.C.).

A New York Times story from November 2008 on the controversy is here.

First Move to Override Bush ESA Rule Introduced in House

U.S. Rep. Nick J. Rahall, D-West Virginia, introduced Thursday a joint resolution that would invoke the Congressional Review Act (CRA) to overturn the Bush administration's recent changes to Endangered Species Act regulations.

H.J. Res. 18 would override an effort by the Departments of Interior and Commerce to eliminate the consultation requirements of section 7 of the ESA. Under the new regulations federal agencies could decide for themselves whether a proposed project would adversely impact a listed species or critical habitat without obtaining the input of biologists from the U.S. Fish and Wildlife Service or NOAA Fisheries.

"The Bush Administration has had a long - though one could hardly say proud - history of trying to undermine the ESA and the protection it provides to America's most imperiled species," Rahall said. "Today, I introduce legislation, using the authority granted to the Congress under the CRA, to overturn a rule that served as the Bush Administration's final assault on, and insult to, one of the Nation's landmark conservation laws."

First proposed in late August 2008, the Bush administration sped the regulation ito effect in November.

The joint resolution is co-sponsored by Reps. Ed Markey, D-Mass., George Miller, D-Calif., Peter DeFazio, D-Ore., Maurice Hinchey, D-NY, Lois Capps, D-Calif., Jay Inslee, D-Wash., Rush Holt, D-N.J., Raúl Grijalva, D-Ariz., John Dingell, D-Mich., Norm Dicks, D-Wash., Sam Farr, D-Calif., and Earl Blumenauer, D-Ore.

NYT: Dems to Examine Ways to Overturn Late Bush Regulations

The New York Times reports in Monday's edition that the Democratic Congress will try to nullify a number of late-term regulations imposed by the Bush Administration, including those allowing concealed weapons in national parks and revising the consulation requirements of the Endangered Species Act.

The article quoted Sen. Ron Wyden, D-Or., as being interested in finding a way to overrule the administration because Bush is trying "to put some ideological trophies on the wall.”

Among the other regulations that Congress will try to reverse, according to the article, are recent rules allowing uranium mining near the Grand Canyon and the regulation allowing the dumping of mining debris into streams and rivers.

It is a time-consuming process for a new administration to reverse the regulatory actions of a predecessor and statutes require such changes to be based on an administrative record.

Two methods for securing the reversal of the Bush administration's "midnight" rules, according to the Times, would be attaching an appropriate amendment to the expected economic stimulus bill and invoking the Congressional Review Act of 1996.

The latter involves passing a "resolution of disapproval," which would require the signature of the President to take effect, and can only be used to negate rules within a few months of the date on which they became final.

President-elect Barack Obama will not have the ability to suspend most of the rules issued by Bush cabinet agencies in the last few months because they will have become final by inauguration day, Jan. 20, 2009.

GAO Report Says Bush Didn't Protect Marine Mammals

A new Government Accountability Office (GAO) report released today concludes that the National Marine Fisheries Service (NMFS) (now NOAA Fisheries) has not protected marine mammals from incidental injury or death resulting from commercial fishing activities.

Marine mammals that inhabit waters near commercial fishing can become entangled in fishing gear, often referred to as "incidental take." The Marine Mammal Protection Act (MMPA) requires the NMFS to establish teams comprised of experts from the scientific community and the fishing industry to devise methods to reduce interactions between certain marine mammals and commercial fishing activities in an effort to prevent incidental deaths of these species.

The GAO report found that NMFS has failed to establish those teams for nearly half of the marine mammal stocks afforded protection under the MMPA, leaving these species severally jeopardized by commercial fishing activities. The agency also lacks a comprehensive process to evaluate the effectiveness of the methods proposed by teams that have been established.

The GAO report is here.

Bush Declares Three New Marine National Monuments

President George W. Bush created three new national monuments encompassing hundreds of thousands of miles of the Pacific ocean today, declaring the largest protected area of ocean in history.

According to the Associated Press,

The areas include the home of a giant land crab, a sunken island ringed by pink-colored coral, and equatorial waters teeming with sharks and other predators and total some 195,274 square miles. Included in the new designation formally announced by Bush at the White House are the Mariana Trench and the waters and corals surrounding three uninhabited islands in the Northern Mariana Islands, Rose Atoll in American Samoa and seven islands strung along the equator in the central Pacific Ocean.

Bush called the new monuments "beautiful" and "biologically diverse."

"For sea birds and marine life, they will be sanctuaries to grow and thrive," Bush said during his announcement at the White House. "For scientists, they will be places to extend the frontiers of discovery. And for the American people, they will be places that honor our duty to be good stewards of the Almighty's creation."

The three monuments, called the Rose Atoll Marine National Monument, Pacific Remote Islands Marine National Monument, and Marianas Trench Marine National Monument, harbor rare geologic features of the planet and unique species, including an underwater sulfur pool and a bird that incubates its eggs in the heat generated by underwater volcanoes.

Commercial fishing and other extractive activities will be forbidden in the new marine monuments, but limited recreational fishing, tourism and scientific research will be permitted.

The designations follow Bush's establishment of a marine national monument in the Northwestern Hawaiian Islands.

None of the marine national monuments in the Pacific will prevent military activities or freedom of navigation, according to White House aides.

The designations were made under the authority of the Antiquities Act of 1906.

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.

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.