It's a bad week to be a forest-dweller. Yesterday, Reg•Watch blogged about the Bush administration's proposed changes to the Endangered Species Act that would make it easier for big development projects to move forward without due consideration to vulnerable species.

Today, headlines bear bad news for the threatened northern spotted owl. The owl was listed as threatened under ESA years ago. Now, the Bush administration's Fish and Wildlife Service — an agency within the Interior Department which released the controversial proposal covered yesterday — wants to reduce protections for the owl. The Associated Press reports:

The U.S. Fish and Wildlife Service said Tuesday that the federal forest land designated as critical habitat for the owl in Washington, Oregon and Northern California would be cut by 23%, a reduction of 1.6 million acres. Critical habitat is a requirement of the Endangered Species Act and offers increased protections against logging.

Endangered and threatened species need special protections for their habitats in order to recover and thrive. Even though the northern spotted owl has enjoyed a critical habitat area since the 1990s, its numbers are struggling to climb. "Research shows that spotted owl numbers are dropping by 4% annually as a result of logging, wildfires and an invasion of its habitat by the barred owl, a more aggressive East Coast cousin," according to AP.

It's as though the Bush administration is employing hard-nosed management techniques to spur the owl toward recovery. As a species, the owl is underperforming (down four percent annually, not even accounting for inflation), so the administration will send it a message by cutting benefits. Next it will be the parking space, then the key to the executive wash room. Fear can be strong motivation.

Of course, the northern spotted owl is unlikely to turn things around in a smaller protected habitat. According to AP, "Tom Partin, president of the American Forest Resources Council in Portland, said the recovery plan and critical habitat would make it more difficult to thin overgrown forests to reduce the risks to wildlife and to promote the old-growth characteristics the owls favor."

The Bush administration is proposing major changes to the Endangered Species Act that would sideline government experts and allow development projects to proceed unchecked, all at the expense of endangered plants, animals, and other organisms. The Washington Post reports:

The new rules, which will be subject to a 30-day comment period, would use administrative powers to make broad changes in the law that Congress has resisted for years. Under current law, agencies must subject any plans that potentially affect endangered animals and plants to an independent review by the Fish and Wildlife Service or the National Marine Fisheries Service. Under the proposed new rules, dam and highway construction and other federal projects could proceed without delay if the agency in charge decides they would not harm vulnerable species.

The proposal would give extraordinary control of biological health decisions to officials whose primary responsibilities include infrastructure creation, minerals extraction, or logging.

For example, take the Minerals Management Service whose mission is to "manage the ocean energy and mineral resources on the Outer Continental Shelf and Federal and Indian mineral revenues to enhance public and trust benefits, promote responsible use, and realize fair value." If an official is considering a project that would yield huge energy benefits and please MMS higher-ups but would also decimate one or more endangered species and violate the law, what's a bureaucrat to do? Talk about a damned if you do, damned if you don't situation.

The proposal fits in with the Bush administration's record, or lack thereof, on enforcing the Endangered Species Act. A March investigation by the Post found that Bush had listed only 59 species under the act. Bush's father, President George H.W. Bush listed 231 species in only four years as president. President Bill Clinton listed 521 species in eight years.

If finalized before Bush leaves office in January, the rule would also violate a new White House policy intended to slow the usual proliferation of rules that occurs at the end of an administration, often called midnight regulations. On May 9, White House Chief of Staff Josh Bolten issued a memo telling regulatory agencies that "regulations to be finalized in this Administration should be proposed no later than June 1, 2008."

The proposed rule wasn't announced until yesterday, and has yet to be officially published in the Federal Register. Of course, the Bolten memo isn't binding, nor does it carry any legal consequence.

The Bush administration is applying the memo selectively, using it to delay policies that might expand protections for public health, workers, or the environment and ignoring it when it finds a new opportunity to cement an anti-regulatory legacy. The proposed changes to the Endangered Species Act — which could lead to environmentally damaging, scientifically uniformed decisions in a future administration — is a perfect example.

(Another rule that would change the way the Department of Labor studies the toxic substances workers are exposed to is equally sneaky. A Health and Human Services rule that may make it harder for women to receive birth control provides yet another example.)

The proposed changes to the Endangered Species Act will be open to public comment once published in the Federal Register. But the 30-day comment period indicates the administration is trying to hustle this rule through before it leaves office. (60 days is the norm for a comment period on a proposed rule.) Stay tuned to Reg•Watch for updates.

Last week, a group of EPA staffers wrote to administrator Stephen Johnson chiding him for the agency's recent decision to delay federal action on greenhouse gas emissions and the damaging climatic effects they cause. In July, EPA issued an Advanced Notice of Proposed Rulemaking (a relatively minor step in the rulemaking process) that solicits public comment on various regulatory options for curbing greenhouse gas emissions.

Strangely, the notice was accompanied by a raft of statements from senior officials across the Bush administration which ridicule the proposal and undermine it ultimate intent — to slow the effects of global climate change. Susan Dudley, head of the White House's regulatory clearinghouse, the Office of Information and Regulatory Affairs, said the policy "cannot be considered Administration policy or representative of the views of the Administration."

In their July 30 letter, the EPA staffers blasted Johnson for including the views of political officials (including the secretaries of Agriculture, Commerce, and Energy) while basically ignoring the hard work of EPA experts: "The way in which you subverted the work of EPA staff in your preamble statement on the merits of the supporting rationale for the ANPRM was as unprecedented as it was stunning to your staff and damaging to EPA's reputation for sound science and policy."

On one important point, the letter corners Johnson as a hypocrite. Johnson chose to include the views of officials in other agencies in the name of transparency. But when it comes to decision making on environmental policy, Johnson has been downright opaque over the past few months:

The decision to publish the critiques of other agencies in the name of "transparency" in decision-making is both disingenuous and counterproductive. A far more direct contribution would be made to the credibility and transparency of EPA decision-making if you cooperated with congressional requests for documents and hearings.

Johnson's refusal to cooperate with Congress isn't limited to the greenhouse gas rulemaking. Congressional committees have repeatedly requested information from Johnson on EPA's controversial revision to an air quality standard for smog and on his decision to refuse to let the state of California write its own rules to deal with climate change.

On all of these issues, internal documents and anecdotal evidence show that the White House exerted some level of pressure on Johnson in order to sway his opinion. And when the Bush White House weighs in on environmental policy, it unfailingly does so on behalf of polluters, not the public.

But when Congress subpoenas Johnson, Dudley, and others, they claim executive privilege. While they argue that these communications must be kept secret in order to ensure good government, EPA staffers say otherwise:

The professional staff of EPA has nothing to hide. In fact, contrary to your assertions of executive privilege, the free flow of policy recommendations would be aided by opening up all (not just selected) communications to public scrutiny.

Toward the end of the letter, the staffers say: "You were once one of us. We were proud when you were nominated as the first of us to occupy the Administrator's Office, and we expected great things. Our disappointment is profound."

A recent Associated Press investigation shows the Environmental Protection Agency has been using new statistics to assign monetary values to the lives potential regulations will save. "The 'value of a statistical life' is $6.9 million, the Environmental Protection Agency reckoned in May – a drop of nearly $1 million from just five years ago," according to AP.

The value of a statistical live, or VSL, is an estimate of how much a person would be willing to pay to reduce their risk of death by some set proportion. Technically, the VSL approach does not value a human life but rather a "statistical life." The benefit to society monetized in the approach represents a reduced risk of death for a population, not a certain avoidance of death for an individual.

Realistically, when it's time to study the potential effects of a regulation, federal agencies estimate the number of lives the regulation will save, then multiply that figure by the VSL. Essentially, the federal government is saying the value of a person's life is equivalent to whatever dollar figure statisticians and economists come up with.

AP provides a good description of the policymaking impact:

Though it may seem like a harmless bureaucratic recalculation, the devaluation has real consequences.

When drawing up regulations, government agencies put a value on human life and then weigh the costs versus the lifesaving benefits of a proposed rule. The less a life is worth to the government, the less the need for a regulation, such as tighter restrictions on pollution.

Consider, for example, a hypothetical regulation that costs $18 billion to enforce but will prevent 2,500 deaths. At $7.8 million per person (the old figure), the lifesaving benefits outweigh the costs. But at $6.9 million per person, the rule costs more than the lives it saves, so it may not be adopted.

Of course, the real travesty here is that federal officials actually allow the VSL to influence their decision when they're considering a new federal standard. If a regulation has the potential to save hundreds or thousands of lives, shouldn't that be enough to prod policymakers into action? Is it necessary to assign a dollar value to everything…and everyone?

For now, the answer is "yes." Officials at EPA and other agencies are forced into playing a game that only makes sense in Washington D.C.'s perverse political climate. The Bush White House, for example, is more than happy to reject proposed regulations if the monetized compliance costs exceed monetized benefits (as they did recently with an EPA recycling rule.)

Benefits such as quality of life, ecological preservation, or even a reduced number of deaths have no bearing on the Office of Management and Budget's decisions — unless they are translated into dollars and cents. Anyone advocating for newer or stronger public protections has a Catch 22 on their hands: Either refuse to place a value on the greatest benefits of a new regulation, saved lives, and see the policy rejected by the White House or attacked by industry lobbyists; or go through the ridiculous (and morally questionable) exercise of placing a dollar value on a human life.

On last night's Colbert Report, Stephen Colbert pokes fun at the ridiculousness of using VSL to make decisions about regulation. Watch it here:

For a description of how VSL undermines public protections, see the OMB Watch report, Polluted Logic: How EPA's ozone standard illustrates the flaws of cost-benefit analysis.

A 2006 Supreme Court decision has seriously hindered EPA's ability to enforce the Clean Water Act, according to new documents released by two House Committee chairmen.

The decision in the case, which pertained to enforcement of the act in non-navigable wetlands, made a real mess of things. According to The Washington Post, "That 5 to 4 decision, known as Rapanos v. United States, held that the Army Corps of Engineers had exceeded its authority when it denied two Michigan developers permits to build on wetlands…"

But the majority opinion was split. While four of the five wanted to kneecap the Corps' ability to preserve wetlands from development, the other, Justice Kennedy, wrote a separate opinion to advocate for case-by-case evaluation.

Even though the Rapanos case related to an Army Corps of Engineers permitting decision, it had big implications for the Clean Water Act at large and EPA's enforcement of it. That led the Corps and EPA to issue a joint guidance document that attempts to clarify federal enforcement obligations in the wake of the decision.

But apparently, the guidance isn't working. In a memo released by Reps. Henry Waxman (D-CA) and James Oberstar (D-MN), EPA admits that the uncertainty created by the Rapanos decision has forced staff to abandon or alter enforcement actions against wetland polluters. From the memo:

Data collected from the regions shows that a significant portion of the CWA enforcement docket has been adversely affected. While we are not able to distinguish whether these impacts are due primarily to the Rapanos decision or to the Guidance, this information revealed that from July 2006 to the present, [EPA regional offices] decided not to pursue formal enforcement in 304 separate instances where there were potential CWA violations because of jurisdictional uncertainty. In addition, the regions identified 147 instances where the priority of an enforcement case was lowered due to jurisdictional concerns. Finally, the regions indicated that lack of CWA jurisdiction has been asserted as an affirmative defense in 61 enforcement cases since July 2006. Thus, since July 2006, the Rapanos decision or the Guidance negatively affected approximately 500 enforcement cases.

Waxman and Oberstar wrote a critical letter to EPA Administrator Stephen Johnson because "instead of sounding the alarm about the EPA's enforcement problems, the agency's public statements have minimized the impact of the Rapanos decision."

In this video, OMB Watch Executive Director Gary Bass discusses the importance of public protections; the Bush administration's track record on such protections; and what the American people can do to take our country back from the big-monied special interests that are endangering our health and safety.

You can also leave comments on our YouTube page with suggestions for future videos.

The Project on Scientific Knowledge and Public Policy at the George Washington University is looking for government scientists to participate in a project which will allow for better understanding of how science is used in policymaking and how the process can be improved:

Scientists in Government is a two-year project whose goal is to promote and shape the public discussion about the rights and responsibilities of government scientists, as part of the larger effort to ensure that government uses the best science to protect and promote the health and well-being of Americans. In order to achieve this goal, we will collect and analyze data on the role and functioning of scientists employed by government agencies; produce a series of reports and policy proposals for future policymakers and government leaders; and communicate the findings and proposals in a manner that facilitates their use by policymakers.

Click here for more information.

Click here if you are a scientists willing to participate.

The Center for Progressive Reform (CPR) has a new paper that cautions against federal climate change legislation that would preempt the efforts of state and local governments to stem greenhouse gas emissions. The paper states, "Federal climate change legislation must reflect the longstanding principle that federal regulation is the 'floor' upon which more stringent state regulation may be built."

In the U.S., state and local governments have been the only parts of the public sector to act on climate change. The CPR paper states, "During almost a decade of federal inaction on climate change, beginning with the Bush Administration's decision to walk away from its campaign promise to participate actively in Kyoto treaty negotiations, state and local governments have led the way in adopting programs to control these harmful emissions." It goes on, "Every state in the country has adopted some kind of policy or law to deal with climate change."

Industry lobbyists often push for explicit preemption in federal law in order to prevent states from imposing more progressive laws and regulations. If industry can control the situation at the federal level and handcuff individual states, it will have shaped public policy for the entire country.

Industry representatives argue, without express preemption, businesses and consumers would have to deal with a "patchwork" of regulations. Uniformity is better, they say. The CPR paper debunks that myth and calls the argument a "smokescreen for deregulation."

The preemption issue is likely to be a sticking point as the Senate debates the Lieberman-Warner Climate Security Act (S. 3036) this week. Gristmill, a leading environmental news blog, says the debate over how to deal with state climate policy will be one of the top four issues likely to ignite controversy on the Senate floor. The other three are "cost containment" (an off-ramp built in to the bill in case the direct economic impacts are viewed as too onerous), nuclear power, and the system for distributing credits under the cap-and-trade system being proposed.

The debate will likely have little practical implications. Disarray among Senate Democrats is so profound that the prospects for passage dwindle each passing day, according to insiders.

A startling article in yesterday's Roll Call (subscription) makes Democratic leaders look like the Bad News Bears of public policy. The article is peppered with quotes from unnamed congressional aides who bear witness to the disorganization and intra-party bickering that has characterized developments surrounding the Climate Security Act. From the article:

"We are about to take up the most important fight of our generation, and we have no strategy, no message and no plan to get out of this," one senior Senate Democratic aide said.

Another senior Senate Democratic staffer echoed those sentiments: "Everyone knows this bill is going nowhere. The president is opposed to it. The House is not inclined toward action on this, and now we're going to spend valuable floor time on a bill that's going nowhere ...

Two MIT professors, Nicholas A. Ashford and Charles C. Caldart, have just written a book called Environmental Law, Policy, and Economics. From the summary:

This book offers a detailed discussion of the important issues in environmental law, policy, and economics, tracing their development over the past few decades through an examination of environmental law cases and commentaries by leading scholars. The authors focus on pollution, addressing both pollution control and prevention, but also emphasize the evaluation, design, and use of the law to stimulate technical change and industrial transformation, arguing that there is a need to address broader issues of sustainable development.

While the book gets into the nuts and bolts of environmental policy, it also discusses where environmental policy intersects with administrative law (chapter 5) and information disclosure (chapter 10).

Find out more here.

On Tuesday, the National Oceanic and Atmospheric Administration (NOAA) proposed a rule to ban the harvest of krill in U.S. waters off the west coast. Krill are small shrimp-like crustaceans abundant in the Pacific Ocean. They are a vital link in the marine food chain and serve as a food source for a variety of marine animals including whales, salmon and some sea birds.

NOAA proposed the rule after the White House delayed the agency from moving forward for almost a year. In May 2007, NOAA submitted an earlier draft of the proposed rule to the Office of Information and Regulatory Affairs (OIRA) — the White House office in charge of clearing federal regulations. But, with suspect rationale, OIRA rejected NOAA's proposal.

OIRA's administrator, Susan Dudley, complained NOAA did not adequately identify the need for regulation since krill is "completely unexploited" and "there are no known plans for exploitation."

True, NOAA proposed the policy even though krill is not currently fished in U.S. waters. However, NOAA experts recognized an opportunity to take a proactive step toward maintaining a sustainable marine ecosystem. In its proposal, NOAA's Pacific Fishery Management Council states, "The Council has agreed it is critical to take preventive action at this time to ensure that a krill fishery will not develop that could potentially harm krill stocks, and in turn harm other fish and non-fish stocks."

The good news is, on Tuesday, the rule was released in basically the same form as NOAA had initially proposed to OIRA. It seems OIRA did not object to the nature of the rule but rather the argument in favor of it.

In order to meet OIRA's objections, NOAA simply couched the need for the rule differently. Originally, NOAA did not acknowledge the existence of a market for krill, instead arguing the measure was precautionary. OIRA complained that since there is no market, there is no reason to regulate. Now, NOAA says, "A market for krill currently exists in Washington and Oregon, where salmon farms use krill products as a supplemental feed." It seems that magic sentence allowed the rule to gain the approval of OIRA.

But bottom line, krill and the marine species that depend on it are one step closer to receiving federal protections. Michael LeVine of Oceana, a nonprofit conservation group, called the proposal "a watershed moment for responsible ocean management and conservation." He added, "We commend all the policymakers involved in implementing the kind of proactive visionary protection we need to move forward with healthy and resilient ocean ecosystems."

Comments on the rule are due June 19.

Posted by Matt Madia, 03:47:13 PM

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