11 Eleventh-Hour Bush Environmental Rule Changes

Pamela Ferdinand, National Geographic News 16 Jan 09;

In its final months the Bush Administration has issued a slew of last minute environmental rule changes, many of which have already gone into effect and could be hard to reverse.

National Geographic News asked representatives from four leading environmental organizations to judge 11 of these "midnight regulations"—some final, some not, some withdrawn—and to grade each development, from A to F, in terms of its potential long-term impact on the environment.

THE PANEL

Jon Devine: senior defense attorney with the Ntional Resources Defense Council's water program

Jim DiPeso: policy director for Republicans for Environmental Protection, a nonprofit advocacy and lobbying group

Trip van Noppen: President of Earthjustice, a nonprofit environmental law firm

Bob Irvin: senior vice president for conservation programs at Defenders of Wildlife, a wildlife conservation organization

John Walke: clean air project director and senior attorney for the Natural Resources Defense Council, an environmental action group


THE CHANGES

1. Power Plants Encouraged Near Parks—RESCINDED

Conservationists were delighted when the Bush Administration withdrew a proposed rule that would have made it easier for industrial facilities—including coal-fired plants—to be built or expanded near national parks and wilderness areas.

"It's a welcome relief," said Defenders of Wildlife's Irvin. "They should never have proposed it in the first place, and dropping it was the best thing they could have done."

The administration also withdrew a proposed rule that would have weakened air pollution controls for coal-fired plants. The rule would have linked control responsibilities to a plant's hourly pollution rate and not taken into account how long or often a plant operated, allowing increased pollution levels to escape control, critics said.

Status: withdrawn

Grades
• Irvin: B-
• DiPeso: F (for the initial ruling)
• Van Noppen: A (for "not going through with that")
• Walke: B ("for abandoning it")


2. Mountaintop Mining Waste Allowed in Waterways

For 25 years regulations have prohibited surface coal mining—or "mountaintop removal"—within 100 feet (31 meters) of flowing streams and rivers if the waste would harm water quality or flow.

(Related: "Mountaintop Mining Raises Debate in Coal Country" [January 13, 2006].)

The U.S. Department of the Interior recently repealed the rule, replacing it with a new one that says disturbance of waterways should "generally be avoided unless it is not reasonably possible to do so."

Critics say the rule conflicts with the government's responsibilities under the Clean Water Act. They also argue that it is now easier for the federal government to issue permits for mountaintop-removal mining—but harder for citizens and states to challenge those mines on grounds that they are harming waterways.

The governors of Kentucky and Tennessee, two of the main mountaintop-mining states, opposed the waiver.

"When the governors of those two states say it's a bad idea, it's a bad idea," Irvin said. "Mountaintop removal is literally changing the landscape of Appalachia to the detriment not only of the water and wildlife, but the people who depend on those resources and that land for their survival."

Earthjustice's Van Noppen agreed: "Our waterways should not be used for waste disposal."

Status: in effect as of January 12

Grades
• Irvin: F
• DiPeso: F
• Van Noppen: F
• Walke: F

3. Three New Marine Monuments Designated

It's not a rule, per se, but the Bush Administration's eleventh-hour designation of three areas of the Pacific Ocean as marine national monuments under the 1906 Antiquities Act—the largest marine conservation effort in history—was praised by conservationists (see photos).

Some critics have derided the effort as a transparent attempt to burnish Bush's environmental legacy. Concerns also have been raised about the scope of protections. Recreational fishing, tourism, and scientific research with a federal permit could still occur inside the three areas under the new law, and U.S. military activities will not be restricted.

Even so, "this is a monumental achievement, and I've got to give the administration all the credit for it," said DiPeso, of Republicans for Environmental Protection.

Irvin agreed.

"This is the lone bright spot in an otherwise dark environmental record of George W. Bush," he said. "He has done for the oceans what he should have done for the rest of the environment, which is to use his authority as President to protect areas for the benefit of future generations."

Status: designated

Grades
• Irvin: A
• DiPeso: A+
• Van Noppen: B


4. Two Million Acres Opened to Oil Shale Development

Reversing a long-standing moratorium, new rules have opened 2 million acres (810,000 hectares) of public land to research and development for a commercial oil shale program in Utah, Wyoming, and Colorado. Oil extraction from shale requires heating the rocks, which results in a crude-oil substitute.

While development is years away, the Bush Administration says the new program could yield as many as 800 billion barrels of recoverable oil.

Environmentalists, however, argue that oil shale development and extraction contributes to greenhouse gas emissions, degrades wildlife habitats, and relies on enormous water use in arid regions—all at a time when the nation should be reducing its dependence on fossil fuels (interactive: how the greenhouse effect works).

Shale oil is "much dirtier than regular oil and hugely expensive and hugely environmentally destructive," Van Noppen said. "We should take those investments—the billions of dollars that would go into oil shale—and devote that money to developing renewables and other conservation strategies."

Status: in effect as of January 17

Grades
• Irvin: F
• DiPeso: C-
• Van Noppen: D

5. Factory-Farm Pollution Controls Diminished

Two new rules weaken environmental oversight over large livestock feedlots where animals live in confined quarters.

Bush Administration officials say the new rules provide strong national standards. Environmentalists say the rules create significant loopholes by which farms can evade pollution controls.

One rule, which took effect on December 22, leaves it up to farms to determine whether they discharge, or will discharge, animal waste into waterways—and therefore whether to apply for waste-disposal permits.

The change increases the public's exposure to harmful bacteria and other pathogens contained in the waste, environmentalists say. The waste is also a significant source of greenhouse gases, they say. And fertilizer and manure runoff, in particular, contributes to low-oxygen "dead zones," which can kill aquatic species and shut down fisheries.

"This is a rule that needs to be completely taken back to the drawing board," said Jon Devine, senior attorney with the Natural Resources Defense Council's water program.

The EPA also will no longer require the farms to report on air pollution from animal waste, as long as the pollution is below a certain 24-hour threshold. Exposure to factory-farm air pollution can cause respiratory illness, lung inflammation, and increased vulnerability to asthma, according to Earthjustice, which filed suit Thursday against the EPA challenging the exemption.

Status: water rule in effect as of December 22; air rule takes effect January 20

Grades
•Devine: D+
• DiPeso: D
• Van Noppen: D


6. Scientific Review Now Optional for Development in Sensitive Habitats

In a move criticized as last-ditch effort to undermine the Endangered Species Act, the Bush Administration has eliminated the requirement for independent scientific reviews before construction or drilling can occur in an endangered species' habitat.

The Interior Department says the rules offer needed clarity to the consultation process and that they allow scientists to focus on reviewing only the most important projects.

Federal agencies are still required to use the best scientific and commercial data to prevent harm, and scientists from the Fish and Wildlife Service and the National Marine Fisheries Service may still voluntarily participate in informal consultations, the department says.

But federal pojects can proceed without that consultation if teh agency in charge of the project determines it poses no potential harm.

The new rule is "not good governance, it's not good accountability," DiPeso said. "We have an Endangered Species Act for a reason. We have checks and balances built into it for a reason."

Allowing federal agencies to evaluate the potential impacts of their own projects is doubly problematic, Van Noppen said.

"They aren't the agencies with the biological expertise," he said. "And they have a huge institutional impetus to go ahead with the project."

Status: in effect as of January 15

Grades
• Irvin: F
• DiPeso: D-
• Van Noppen: F


7. Hazardous Waste Reclassified as Nonhazardous

A new rule exempts about 1.5 million tons of hazardous waste from strict oversight of its storage, transport, and disposal.

Critics are concerned, and not only about the reclassification. They say that the facilities chosen to manage the waste have poor track records. The rule, critic say, benefits chemical plants, oil refineries, incinerators, and other industrial facilities that previously had to pay to have their hazardous waste materials safely disposed of.

"The reason given is that the materials are supposedly recycled and should not be considered waste. But the truth is that highly toxic and carcinogenic waste strongly regulated for years has been magically transformed into nonhazardous waste," said John Walke, clean air project director and senior attorney with the Natural Resources Defense Council in Washington, D.C. "It's absolutely outrageous and inexcusable."

Status: in effect as of January 20

Grades
• DiPeso: D
• Van Noppen: D
• Walke: F

8. Fishing Businesses to Regulate Themselves—RESCINDED

Under a proposed rule, regional advisory groups dominated by recreational and commercial fishing interests would have been given jurisdiction over reviewing environmental impacts of federal ocean-management decisions. In addition, the public comment period for such reviews would have been reduced from 45 to 14 days.

"Do you want the regional boards that have commercial fishing interests passing judgment on regulations that affect how they do their business? Probably not," DiPeso said. "You want to have those checks and balances."

Status: withdrawn

Grades
• DiPeso: C- (middling score because proposal, while bad, was less significant than other issues and because rescinding was a good move)
• Van Noppen: A (for the withdrawal)

9. Plants Can Increase Pollution Output More Easily

The EPA finalized a rule that will make it easier for factories and power plants, among other industrial facilities, to expand or modify operations without applying for new pollution permits.

Government officials argue it doesnt make sense to combine emission counts from sources that do not have a substantial technical or economic relationships. But conservationists say the new rule will subject fewer facilities to pollution controls because they are less likely to trigger the threshold of emissions that requires cleanup.

"It's a classic loophole," Walke said. "It's only harmful and will never be helpful in cleaning up the air."

A related rule, which is in effect as of December 10, allows industries not listed under the Clean Air Act, including petroleum refineries and paper mills, to ignore "fugitive" emissions—through equipment leaks or evaporation—as part of emissions totals when making major changes to a facility.

Status: in effect as of January 12

Grades
• Irvin: C+
• Walke: C


10. Mining Public Lands Made Easier

A new rule strips the U.S. Congress of its "emergency" power to force the Secretary of the Interior to temporarily prohibit mining, oil, and gas development on sensitive federal lands.

Congress last used the power in June 2008 to halt uranium mining on a million acres (404,700 hectares) near the Grand Canyon. That decision was overturned when the new rule took effect in December after an unusually brief 15-day public-comment period.

Bureau of Land Management officials say conventional provisions are adequate to protect natural resource. Environmental groups are suing, saying it is illegal to take Congress out of the picture.

"Final authority has to rest with Congress, the elected representatives of the American people," DiPeso said. "These are public lands."

Status: in effect as of January 5

Grade
• DiPeso: F

11. Oil and Gas Leases Auctioned Off at Last Minute

In December the Bureau of Land Management held an auction for oil and gas company leases on public land in Utah near national parks and monuments.

The BLM says it is required by law to conduct lease sales on at least a quarterly basis. And the agency notes it is also offering parcels for development of geothermal energy, a renewable resource. Environmentalists are challenging the leases, saying they are illegal and that environmental impacts have not been adequately studied. Opposition from the National Park Service resulted in the deferral of leases on 23 parcels and portions of three others.

"These are areas that are magnificent landscapes," Van Noppen said, though the BLM says that the developments will not negatively impact views at popular sites.

Van Noppen adds, "It's just one last example of the Bush Administration doing whatever it can to help its friends in the oil and gas industry, regardless of the cost on the resources of our national parks."

Status: The BLM dropped more than half of the 359,000 acres (145,000 hectares) first proposed for leases. The auction was disrupted last month by an environmental activist who bid up parcels of land with no intention of paying. An investigation is underway; no leases have been awarded.

Grades
• DiPeso: F
• Irvin: F
• Van Noppen: D

ALL EYES ON OBAMA

Conservationist critics say Bush's midnight flurry reflects the priorities of an administration that has consistently placed industry interests over environmental protections and public health.

"It's business as usual [for the Bush Administration]. And in this day and age, we can't afford that any more," Republican conservationist DiPeso said.

Defenders of Wildlife's Irvin agreed. "What this reflects is a shameful record of the most anti-environment administration in the history of the United States," he said.

It's unclear which of the last minute changes President-elect Obama might try to overturn, if any—or when—but earlier this week Lisa P. Jackson, nominated to head the EPA, listed the administration's environmental priorities: curbing global warming, reducing air pollution, cleaning up hazardous waste, regulating toxic chemicals, and protecting water quality, according to news reports.

The president-elect also said during his campaign that he would seek to require the EPA to regulate carbon dioxide as a pollutant under the Clean Air Act and overturn the Bush administration's endangered species rulings, among other measures.

If already in effect, the last minute rules can be overturned in a number of ways—none of them fast—including the following:

• through the establishment of a new counter-rule by the Obama Administration, which can take months or even years
• by court order (several lawsuits are pending)
• by Congress invoking the Congressional Review Act, which has been done only once, to reject Clinton midnight regulations on workplace ergonomics

If, however, a rule was not finalized by December 19, it can be immediately suspended and eventually modified or withdrawn by the new administration, according to Matt Madia, a regulatory policy analyst with OMB Watch, a Washington, D.C.-based nonprofit government watchdog group.

"The problem," Madia said, "is that even if you undo these in months or a year or two, there is going to be environmental damage in the interim."