Changes To The ESA Rules

Floor Speech

Mr. INHOFE. Madam President, I was listening with some interest to the Senator from Alaska and what she is trying to do. I think, once again, we are faced with a backhanded attempt to regulate greenhouse gases without the transparency of public debate. Section 429 of the omnibus currently includes yet another congressional handout to some of the extremist groups and to the trial bar. This rider is clearly an attempt to legislate on a spending bill, 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 the omnibus section 429. This subject is particularly important to me since the EPW Committee holds jurisdiction over all issues impacted by the offending provision, including endangered species, the regulation of greenhouse gases, and the transportation infrastructure which we are going to be pursuing in the next few weeks.

Without the amendment, section 429 allows the agencies to make dramatic changes to the Endangered Species Act rules and regulations without having to comply with longstanding 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 in our economy.

Specifically, this activist-friendly rider would allow the Secretary of Interior and the Secretary of Commerce to undo a regulation making commonsense adjustments to the ESA as well as withdraw a special rule and listing for the polar bear. By ignoring the protections of the Administrative Procedures Act, the rules in question could be withdrawn within 60 days of adoption of the omnibus bill and then reissued in whatever form the agencies preferred, without having to go through any notice or public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.

This is exactly what the two Senators from Alaska are attempting to correct. 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 polar bear population. I might add that we have made quite a study of the 13 polar bear populations in Canada. All but one are increasing. The one that is not is the western Hudson Bay. That is due to some regulations in hunting that have adversely affected them. That is being corrected at this time. So if you stop and realize over the last 40 years, we have increased the population of polar bears in the world by fivefold, then there isn't a problem. However, let's assume that there is a problem, and we want to be sure that we are able not to have the intended consequences.

If enacted, implementation of section 429 would 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, and authorized by the Federal Government.

In other words, you could have someone who is cooking on his Hasty Bake in his backyard in Tulsa, OK and have a lawsuit filed saying: You are emitting greenhouse gases; therefore, you are affecting the polar bear. Any permit for a powerplant, refinery, or road project that increases the volume of traffic anywhere in the United States could be subject to litigation, if it contributes to local carbon emissions. Lawsuits and ESA-prompted delays could extend to past fossil fuel-linked projects, if those projects could increase greenhouse gas emissions or reduce natural carbon dioxide intake.

If this provision is allowed to stand, 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 impact to the polar bear. In other words, we passed the stimulus which I opposed. I had an amendment that would have actually provided a lot of jobs. That amendment they would not let me bring up. I believed that since it was an Inhofe-Boxer amendment, it would have passed. But it didn't.

So now we have a few jobs out there, a few things that are going to contribute to the employment problem of this country. If this provision is in there without the correction found in the bipartisan amendment by the two Senators from Alaska, then it is going to say the very thing we are trying to stimulate--in terms of jobs, construction, roads, bridges, and highways--cannot be done because of the section 7 consultation regarding the impacts on the polar bear. Ironically, President Obama today announced the release of $28 billion from the American Recovery and Reinvestment Act 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 throughout the country, totaling more than $750 million, where construction can start within the month. In other words, we have already undergone all of the environmental requirements. We have the environmental impact statements. We are ready right now. In my State of Oklahoma, we have $1.1 billion worth of work that could be started tomorrow.

Now, President Obama stated that the projects funded under 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 and 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 a main driver of immediate job growth in 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 redtape.

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 longstanding process where the agencies may 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 last year. We have 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 the 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.

I believe this is very important because, without this, there is so much uncertainty as to what the application would be in terms of the Endangered Species Act. So I encourage the adoption of that amendment.

I yield the floor.

Source