Hill Heat

Political appointee at center of polar bear decision to testify (05/19/2008) Allison Winter, E&E Daily reporter

House lawmakers will get the chance this week to grill a key Interior Department official on whether there was any political manipulation in the decision to list the polar bear as a threatened species.

Lyle Laverty, a political appointee who serves as Interior’s assistant secretary for Fish and Wildlife and Parks, is scheduled to appear before the House Natural Resources Committee.

The hearing is a follow up on an investigation committee Chairman Nick Rahall (D-W.Va.) started after Julie MacDonald, a deputy assistant secretary for Fish and Wildlife and Parks, resigned in the wake of a scandal that linked her to meddling in and editing scientific decisions on endangered species issues.

Lawmakers will take a broad look at political influence on endangered species decisions, Rahall said in an interview last week. But given that it is following on the heels of the polar bear listing decision, questions about the bear would likely be a focus.

“Decisions in regard to ESA should always be based on sound science and not politics,” Rahall said. “I am sure it will be an item for discussion.”

Laverty has been a key figure in the polar bear decision. In court filings submitted in response to the lawsuit over the listing, Laverty described months of back-and-forth discussions over the listing among Interior lawyers and representatives in his office.

Interior Secretary Dirk Kempthorne announced last week he would list the polar bear as threatened under the Endangered Species Act. The listing is based on threats to the bear from the effects of climate change on its polar habitat, but Kempthorne specified that it should not allow the regulation of greenhouse gas emissions linked to warming temperatures.

The agency included a special rule to allow continued development of natural resources in the Arctic and power plants in the lower 48 states. That rule ignited the outrage of some Democrats on Capitol hill, including Rep. Jay Inslee (D-Wash.), who sits on the Natural Resources Committee.

“This is a fraud,” said Inslee. “The administration effectively decided to make a listing, but said it wouldn’t make a difference in government action. That’s not a listing, it’s a cop out.”

The announcement came after multiple delays and lawsuits to force protection of the bear. Environmentalists and several Democratic lawmakers – including Inslee – have suspected the administration was stalling to try to avoid protecting the bear, or to allow oil leasing in its habitat in Alaska’s Chukchi Sea to go forward. Administration officials have maintained they were just trying to complete a thorough review of a very complicated listing.

Questions for lawyers?

The listing decision was originally mandated by law for early January, but Interior officials postponed it until a lawsuit forced them to complete the decision last week. Kempthorne said last week that the January postponement was necessary because the agency needed time to complete its analysis of the scientific data.

In court filings about the polar bear listing, Laverty described a back-and-forth process among agency lawyers in D.C. while the listing stalled.

The Alaska field office sent its draft final listing recommendation to Washington on Dec. 14. On the basis of that recommendation, Fish and Wildlife Service officials developed a draft listing determination, which they completed in early February. That decision “raised various factual and legal issues” with the Office of the Solicitor, according to Laverty’s legal filing.

Interior then developed a working group with staff from both FWS and the solicitor’s office. That group concluded its work in mid-February, and FWS Director Dale Hall approved their recommendation. The decision then went to Laverty, who sent it back to the solicitor’s office for further review.

“I am informed that public comments and internal departmental review of this listing determination raised significant and complex factual and legal issues,” Laverty wrote in his court testimony.

Among the questionable items, Laverty said, were the reliability of data used for the listing and the degree of uncertainty around the climate modeling tools. Before the final listing was released, Laverty’s office and the solicitor’s office continued to review it.

“These are not questions for lawyers, these are factual questions for scientists in the field office,” said Kassie Siegel of the Center for Biological Diversity, one of the groups that sued the administration to force the listing.

GAO investigation

The panel will also hear from the director of natural resources at the Government Accountability Office, the general counsel at the National Oceanic and Atmospheric Administration and wildlife experts from nonprofits and universities.

GAO is also expected to release this week new findings in its review of Interior’s self-review of its endangered species listing program. FWS is revising several rulings MacDonald was involved in and developed a new policy intended to keep scientific decisions from reaching political levels.