Hill Heat

The House Committee on Global Warming and Energy Independence has issued a report, Past is Prologue, listing many of the energy and environmental regulations, rulemakings, and notices the Bush administration is expected to issue (or in some cases, illegally avoid issuing) in its final months in office. As R. Jeffrey Smith writes in the Washington Post, “The new rules would be among the most controversial deregulatory steps of the Bush era and could be difficult for his successor to undo.” Here’s a partial list:

• The Environmental Protection Agency (EPA) plans to finalize an NSR rule before the end of the administration that would essentially exempt all existing power plants from having to install new pollution control technology when these plants are updated.
• In a separate NSR rule, EPA plans to exempt so-called “fugitive” emissions – meaning emissions that don’t come out of the end of a stack such as volatile organic compounds emitted from leaking pipes and fittings at petroleum refineries – from consideration in determining whether NSR is triggered.
• EPA is also set to finalize a third rule weakening the NSR program, by allowing so-called “batch process facilities” – like oil refineries and chemical plants – to artificially ignore certain emissions when determining when NSR is triggered.
• EPA is also working towards weakening air pollution regulations on power plants and other emissions sources adjacent to national parks and other pristine, so-called “Class I” areas. By changing the modeling of new power plants’ impact on air quality in national parks – using annual emissions averages as opposed to shorter daily or monthly periods – the EPA rule will make it easier for such plants to be built close to parks.
• The National Highway Traffic Safety Administration (NHTSA) issued proposed regulations to implement the EISA fuel economy standards (increase by the maximum feasible amount each year, such that it reaches at least 35 miles per gallon by 2020) in April 2008, and final regulations are expected soon. If NHTSA used EIA’s higher gasoline price scenario—a range of $3.14/gallon in 2016 to $3.74/gallon in 2030—the technology is available to cost-effectively achieve a much higher fleet wide fuel economy of nearly 35 mpg in 2015 – instead of the 31.6 mpg in 2015 under the lower gas prices used in NHTSA’s proposed rule.
• EPA is expected to issue proposed regulations soon on the renewable fuels provisions passed in EISA that required America’s fuel supply to include 36 billion gallons of renewable fuels by 2022 – together with more specific volumetric requirements and lifecycle greenhouse gas benchmarks for “advanced” renewable fuels, cellulosic ethanol, and biodiesel.
• The Department of the Interior (DOI) has already telegraphed its intention to gut the Endangered Species Act by rushing through 300,000 comments on proposed rules in 32 hours, then providing a mere 10-day public comment period on the Environmental Assessment of the proposed rules change. The proposed rules would take expert scientific review out of many Endangered Species Act (ESA) processes, and could exempt the effects of global warming pollution on threatened or endangered species.
• DOI intends to finalize new regulations governing commercial development of oil shale on more than 2 million acres of public lands in the West.
• DOI’s Office of Surface Mining is expected before the end of the administration to issue a final rule that would extend the current rule (which requires a 100-foot buffer zone around streams to protect them from mining practices) so that it also applies to all other bodies of water, such as lakes, ponds and wetlands. But the rule would also exempt many harmful practices – such as permanent coal waste disposal facilities – and could even allow for changing a waterway’s flow.
• EPA has already missed several deadlines to finalize a rule addressing whether concentrated animal feeding operations (CAFOs) are required to obtain permits under the Clean Water Act.
• EPA and the Army Corps of Engineers may issue a revised guidance memo on how to interpret the phrase “waters of the United States” in the Clean Water Act, which determines what water bodies are subject to regulation under the Act.
• Under the Omnibus appropriations bill for FY 2008, EPA was directed to establish a mandatory reporting rule for greenhouse gas emissions, using its existing authority under the Clean Air Act, by September 2008. EPA has been working on a proposed rule, which may or may not be issued before the end of the Bush administration. EPA will not issue a final rule before the end of the administration.

Witnesses

Panel 1

• Robin Nazarro, Director, Natural Resources and Environment Program, U.S. Government Accountability Office
• R. Lyle Laverty, Assistant Secretary for Fish and Wildlife and Parks, U.S. Department of the Interior
• Accompanied by: Ren Lohoefener, Fish and Wildlife Service and Ed Shepard, Bureau of Land Management
• Jane Luxton, General Counsel, National Oceanic and Atmospheric Administration
• Dr. Francesca T. Grifo, Ph.D., Senior Scientist and Director, Scientific Integrity Program, Union of Concerned Scientists

Panel 2

• Scott D. Kraus, Ph.D., Vice President of Research, New England Aquarium
• Dr. Jerry F. Franklin, Ph.D., College of Forest Resources, University of Washington
• Scott Hoffman Black, Executive Director, The Xerces Society for Invertebrate Conservation
• David Parsons, Science Fellow, The Rewilding Institute
• Larry Irwin, National Council for Air & Stream Improvement

21/05/2008 at 10:00AM

Originally posted at the Wonk Room.

After years of delay, Secretary of the Interior Dirk Kempthorne made a landmark decision on whether global warming pollution is regulated by the Endangered Species Act (ESA). Kempthorne ruled that the polar bear should be classified as a “threatened species” due to the decline of polar sea ice, critical to its survival. Kempthorne stated:

They are likely to become endangered in the near future.

The Department of Interior, under Secretary Dirk Kempthorne, fought for several years in the courts since 2005 to avoid making a decision on whether the precipitous decline in Arctic sea ice due to global warming is making the polar bear an endangered species. Fish and Wildlife Service director Dale Hall testified in January that there was no significant scientific uncertainty in the endangerment posed by global warming to polar bears—the only legal justification under the Endangered Species Act for a delay.

Kempthone’s decision to follow the science is in marked contrast to Environmental Protection Agency Administrator Stephen Johnson’s action to override his staff in refusing to regulate tailpipe greenhouse gas emissions.

However, Kempthorne also argued vigorously that his decison does not compel the Bush administration to construct a plan to regulate greenhouse gas emissions, repeating President Bush’s entirely spurious claim that would be a “wholly inappropriate use” of the Endangered Species Act. The Interior news release announces, “Rule will allow continuation of vital energy production in Alaska.” Kempthorne claimed that the Marine Mammal Protection Act (MMPA) is “more stringent” than the ESA, despite the court ruling that compelled him to make today’s ruling stating that “the protections afforded under the ESA far surpass those provided by the MMPA.”

Dirk Kempthorne has not confirmed attendance.

Witnesses

• The Honorable Dirk Kempthorne, Secretary, U.S. Department of the Interior (INVITED)

• Dr. Douglas B. Inkley, Senior Scientist, National Wildlife Federation
• Kassie R. Siegel, Director of the Climate, Air, and Energy Program, Center for Biological Diversity
• William P. Horn Esq., Birch, Horton, Bittner & Cherot

02/04/2008 at 10:00AM

On Thursday March 20, Sen. Boxer (D-Calif.), chair of the Senate Environment and Public Works Committee, sent a letter to Secretary of the Interior Dirk Kempthorne asking him “to appear before the Committee as soon as possible for an oversight hearing” on the “considerable delays in taking final action” over the Endangered Species Act listing of the polar bear. Boxer told him that the hearing would be planned for April 2 or 8.

The following day, Lyle Laverty, Assistant Secretary for Fish, Wildlife, and Parks, faxed back a response at 5:56 PM saying:

I understand Secretary Kempthorne called you on March 17, 2008, and expressed his commitment to testify before the Committee on the polar bear proposal once a decision is made on the issue. I also understand the Secretary committed to calling you on Tuesday, April 1, 2008, with an update on the progress towards a decision.

Boxer immediately responded, calling the offer of a telephone briefing and a hearing after a decision has been made “wholly inadequate,” and again requested the April 2 or 8 date for a hearing discussing “this serious breach of the Department’s duty to follow the law.”

It has been nearly a month since FWS director Dale Hall stated in a House Appropriations Committee hearing that he had submitted his decision on the polar bear listing to Secretary Kempthorne.

This is crossposted from the newly launched Think Progress Wonk Room, which will be covering policy news from climate change to national security. The issues covered by Hill Heat writer Brad Johnson will enjoy deeper coverage at the Wonk Room, where he is now a full-time staffer.

The Public Employees for Environmental Responsibility today highlighted the ethical conundrum facing scientists currently serving under Fish & Wildlife Service Director H. Dale Hall.

In addition, this month the Interior Inspector General opened a preliminary inquiry into whether Hall violated the code of conduct for repeatedly missing Endangered Species Act deadlines to list the polar bear, despite clear scientific guidance.

PEER Executive Director Jeff Ruch asks: “How can we expect scientists to obey a code of conduct that their director ignores?”

The latest delay has also triggered a lawsuit from environmental groups.

Allison Winter reports for E&E News:

The Interior Department’s internal watchdog said today it has begun a preliminary probe of the delayed polar bear decision.

Responding to requests from environmental groups, the Inspector General’s Office official said its preliminary review will determine if there is a need for a full investigation.

The Sierra Club, Alaska Wilderness League and four other organizations requested a review by Inspector General Early Devaney, claiming the delay violates the Fish and Wildlife Service’s scientific code of conduct and rules of the Endangered Species Act by allowing MMS to proceed with Chukchi lease sales.

Sixty days have now passed since January 8, 2008, when the U.S. Department of the Interior failed to meet its legal deadline to determine whether the polar bear is endangered by global warming, triggering a joint lawsuit over this latest delay from the Center for Biological Diversity, NRDC, and Greenpeace, pursuant to the notice of intent filed in January.

In the intervening months, U.S. Fish and Wildlife director Dale Hall took responsibility for the delay, but two weeks ago he told House appropriators that the decision had been given to Dirk Kempthorne, Secretary of the Interior, for final review.

In addition, Rep. Ed Markey (D-Mass.), chair of the House global warming committee, today introduced legislation to block further activity in the lease sale area. This legislation, which does not yet have a bill number, is a revision of his proposed legislation from January, before the lease sale took place. The amended legislation would now prevent the Secretary of the Interior from authorizing any “related activity (including approving any seismic activity, offering any new lease, or approving any exploration or development plan)” until an ESA determination and critical habitat designation is made.

In last week’s budget hearing, U.S. Fish and Wildlife Service director Dale Hall was confronted by Rep. Ben Chandler (D-Ky.) in a revealing exchange:

Ben Chandler (D-Ky.) I know that you all have talked some about the alarming loss of common birds in our country. Alarming it is. I almost can’t believe it. The numbers that I’ve seen are absolutely atrocious. And one thing that I’d like to explore with you real quick, the Audubon Society has stated that the cause of the dramatic decline of birds is the outright loss of habitat due to poor land use, the clear-cutting of forests, the draining of wetlands and sprawl. Now, in light of such a stinging indictment as that, how does the administration justify a 70 percent cut in land acquisition?

Hall I don’t know.

The Audubon Society analysis found that many common U.S. birds species have collapsed in recent years, some by at least 80 percent. In addition, the Society has identified 218 U.S. bird species at risk “amid a convergence of environmental challenges, including habitat loss, invasive species and global warming”.

Former Deputy Interior Secretary Julie MacDonald interfered with the Endangered Species Act listings of several of those at-risk: the Greater Sage Grouse, Gunnison Sage Grouse, Southwestern bald eagle, Southwestern willow flycatcher, Sacramento splittail and the recovery plan of the Northern spotted owl

At last week’s House Appropriations hearing on the FY 2009 Fish and Wildlife Service budget, FWS chief Dale Hall was grilled on the service’s implementation of the Endangered Species Act. The Bush administration has listed dramatically fewer species than previous administrations after dramatically reinterpreting the Act under Secretary Gale Norton’s “New Environmentalism” initiative to limit its protections for critical habitats. Further, Deputy Secretary Julie MacDonald was found to have interfered with a series of listing decisions (such as the prairie dog and sage grouse) until her dismissal in 2006.

Hall stated that he finally submitted his decision on the endangerment of polar bears due to climate change to Dirk Kempthorne, the Secretary of the Interior, saying that he expected a final decision to come in a few weeks. Hall justified the further delay to reporters: “It needs to be reviewed and explained to Interior, it can take a while to understand.”

On February 27, the Center for Biological Diversity announced a lawsuit protesting the FWS’s illegal delay on considering the endangerment of ten species of penguins:

The legal deadline at issue in today’s suit was triggered by a scientific petition the Center filed in November 2006 seeking Endangered Species Act protection for many of the world’s most threatened penguin species, including the emperor penguin in Antarctica. In July 2007, the U.S. Fish and Wildlife Service took the first of the three steps in the listing process when it found that 10 penguin species may deserve protection and began status reviews for those species. The Fish and Wildlife Service’s finding for the 10 penguin species triggered the duty to decide by November 29, 2007, whether the penguins qualify for listing under the Endangered Species Act, and if so, to propose them for listing. That decision is now more than two months overdue.

Witnesses

• Dale Hall, Director, U.S. Fish and Wildlife Service
• Mark D. Myers, Director, U.S. Geological Survey

Ben Chandler (D-Ky.) I know that you all have talked some about the alarming loss of common birds in our country. Alarming it is. I almost can’t believe it. The numbers that I’ve seen are absolutely atrocious. And one thing that I’d like to explore with you real quick, the Audubon Society has stated that the cause of the dramatic decline of birds is the outright loss of habitat due to poor land use, the clear-cutting of forests, the draining of wetlands and sprawl. Now, in light of such a stinging indictment as that, how does the administration justify a 70 percent cut in land acquisition?

Hall I don’t know.

Norm Dicks (D-Wash.) That’s a good answer.

Chandler That’s one of the best answers I’ve heard in a while, because I think that’s accurate. I appreciate that.

28/02/2008 at 10:00AM