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.