A Trial Attorney’s Dream: Another Attempt to Regulate Greenhouse Gases without Public Debate
March 4, 2009
Once again we are faced with a back-handed attempt to regulate greenhouse gases without the transparency of public debate. Section 429 of the omnibus appropriations bill currently includes yet another Congressional handout to extreme environmental interests and the trial bar. This rider is clearly an attempt to legislate on a spending bill – just the sort of bad habit that Democrats in Congress and the White House promised to give up during the last election.
As Ranking Member of the Environment and Public Works Committee, I strongly support the bipartisan amendment offered by Senators’ Murkowski and Begich to revise omnibus Section 429. This subject is particularly important to me since the EPW Committee holds jurisdiction over all of the issues impacted by the offending provision, including endangered species, the regulation of greenhouse gases, and transportation infrastructure.
Without the amendment, Section 429 allows the agencies to make dramatic changes to Endangered Species Act (ESA) rules and regulations without having to comply with long-standing federal laws that require public notice and public comment by the American people and knowledgeable scientists. These changes have the potential for far-reaching and unintended consequences on our economy.
Specifically, this activist-friendly rider would allow the Secretary of Interior and Secretary of Commerce to undo a regulation making common sense adjustments to the ESA, as well as withdraw a special rule and listing for the polar bear. By ignoring the protections in the Administrative Procedures Act (APA), the rules in question could be withdrawn within 60 days of adoption of the omnibus bill and then reissued in whatever form the agencies preferred without having to go through any notice or public comment period, and without being subject to any judicial review as to whether their actions were responsible or justified.
Existing ESA rules clearly lay out the U.S. Fish and Wildlife Service position that oil and gas development in the Arctic and Alaska Native subsistence activities are not the reason for the polar bear’s recent listing status and are not affecting bear populations. There is no reliable scientific evidence that either oil and gas or human activities, already controlled under the Marine Mammal Protection Act, are having any impact on the bears’ populations. Logically, these activities do not justify further restrictions to protect the threatened species.
If enacted, this implementation of Section 429 could mean that any increase in carbon dioxide or greenhouse gas emissions anywhere in the country could be subject to legal challenges due to assertions that those activities are harming a polar bear, or that there has not been sufficient consultation with the U.S. Fish and Wildlife Service regarding activities that are funded, carried out or authorized by the federal government. Any permit for a power plant, refinery or road project that increases the volume of traffic anywhere in the US could be subject to litigation if it contributes to total carbon emissions. Lawsuits and ESA prompted delays could extend to past fossil fuel-linked projects too if those projects that could increase greenhouse gas emissions or reduces natural carbon dioxide uptake. If this provision is allowed to stands, it will likely endanger the delivery of the majority of the construction projects funded by the recent stimulus bill since these projects have not gone through a Section 7 consultation regarding their impacts on the polar bear.
Ironically, President Obama today announced the release of $28 billion from the American Recovery and Reinvestment Act (ARRA) to states and local transportation authorities to repair and build highways, roads and bridges. This investment will lead to 150,000 jobs saved or created by the end of 2010. State highway departments have already identified more than 100 transportation projects across the country, totaling more than $750 million, where construction can start within the month.
President Obama stated that the projects funded by the ARRA are deemed so important to America’s economic recovery that they will bear a newly-designed emblem. The emblem is a symbol of President Obama’s commitment to the American people to invest their tax dollars wisely to put Americans back to work. Rest assured that Section 429 of the omnibus bill will NOT bear this emblem.
I applaud the President for highlighting infrastructure spending as the main driver of immediate job growth the stimulus plan, but I am concerned by the conflicting priorities created by Section 429. You cannot support large infrastructure spending, as an economic stimulus while simultaneously endangering its translation into job growth with more red tape.
The Murkowski/Begich amendment correctly requires that, if these ESA rules are withdrawn or revised, the action is subject to the requirements of the Administrative Procedures Act, with at least a 60-day comment period. This is a good government amendment – the fact that this amendment is even needed to restore the public participation protections is exactly the sort of nonsense that makes the American taxpayer so suspicious of Congress. From the public’s perspective, the effect of this amendment would be to bring us back to the long-standing process where the agencies make, withdraw and revise regulations by following the law established to do so.
We have heard from the Democratic managers of this bill that ‘nothing new was added to this bill since late last year’: we’ve been told ‘there is no controversial legislative language in this bill.’ We have been misinformed. This rider was NOT a part of the negotiations or appropriations bills last year, and I assure you it is very controversial. I urge the Leadership to allow the Senate to vote on the Murkowski/Begich amendment, and I ask for my colleagues support for ensuring regulatory transparency.
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