August 18, 2008

The Bush Administration has proposed changes to the Endangered Species Act (ESA) that would allow federal agencies to decide whether protected species would be threatened by agency construction projects. These changes were published in the Federal Register on August 15th, thus beginning a 30-day public comment period. The proposal does not require the approval of Congress, and is on course to go into effect before November’s presidential election. Congress and the new administration will have the ability to reverse or overturn the rules, but in both cases the process could take months.

If approved, revisions would represent the biggest overhaul of endangered species regulations since 1986. The major revisions are:

• Language to ensure that the Act isn’t used for what Interior Secretary Dirk Kempthorne calls a “back door” to regulate gases associated with climate change. According to the proposal, “[Greenhouse gas] emissions from building one highway are not an `essential cause’ of any impacts associated with global warming. Moreover, any such effects are later in time, but are not reasonably certain to occur… For both reasons, impacts associated with global warming do not constitute `effects of the action’ under the proposed revision to that definition.”
• The elimination of mandatory scientific review by government wildlife experts at the National Marine Fisheries Service or the Fish and Wildlife Service. Federal agencies would determine whether their projects could have negative effects on endangered species—if so, they are to request expert consultation. If they decide that no risk exists, they may proceed without review.
• A new 60-day limit on informal consultation. If experts do not make a decision within 60 days, the project can move ahead. The guidelines for formal consultations would remain the same.

According to the proposed rules, federal agencies have more expertise now than when the original rules were laid out, and are thus capable of identifying which projects warrant scientific review. The National Marine Fisheries Service and Fish and Wildlife Service reviewed unilateral ESA evaluations for wildfire prevention projects, however, and found that about half these evaluations were not legally or scientifically valid.

The regulations were drafted by attorneys at both the Interior and Commerce Departments. Scientists with both agencies were reportedly first briefed on the proposal last week during a conference call.

The Ecological Society of America will submit a letter during the public comment period, which ends on September 15, and encourages interested members to send in their own comments during this time.

There are two ways to submit comments:

1. Through the Federal eRulemaking Portal at www.regulations.gov.
2. By U.S. mail or hand-delivery to Public Comment Processing,

Attention: 1018-AT50, Division of Policy and Directives Management,
U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Suite 222,
Arlington, VA 22203.

In 2004, the Ecological Society of America took the lead in developing a position statement on scientific peer review, which you may find relevant to the issue at hand. The statement is available at: www.esa.org/pao/policyStatements/Statements/Position-Statement_ScientificPeerReview.php

After a lengthy partisan battle, Congress disbanded for the August break without moving any major energy legislation forward. The debate will likely escalate in September; with the November elections quickly approaching, both parties are attempting to reframe the debate for political gain.

In September, expect the following:

• Oil market speculation: The current debate should be informed by a Commodity Futures Trading Commission report, due to Congress by Sept. 15, detailing the scope of commodity index trading in oil markets and making recommendations for possible improvements.
• Offshore drilling: Republican senators say they will push to remove drilling bans through a continuing resolution (CR) to fund the government into next year. Whether they are willing to block a CR even if it means shutting down the federal government remains to be seen. The CR must be passed by October 1st in order to keep the government functioning.
• Bipartisan energy plan: Many hope that a new energy plan will provide enough incentives for both parties to break the stalemate.

The “Gang of 10,” a bipartisan group of senators, unveiled their broad energy plan on August 1st. It would relax some offshore drilling bans in the eastern Gulf of Mexico and on southeastern Atlantic coast (from Virginia to Georgia, if the states allow it) while repealing oil industry tax breaks and funding investments in renewable energy and conservation. Members of the group say the plan is designed to gain 60 Senate votes, the threshold for passing most major bills.

Total funding for the proposal’s various energy programs is $84 billion— $30 billion of this would come from oil companies. Other offsets have yet to be disclosed.

If enacted into law, it would provide:

• An extension of renewable energy and energy efficiency credits through 2012.
• $20 billion for an “Apollo Project” aimed at weaning 85 percent of America’s motor vehicles from oil-based fuels in 20 years.
• Grants and loan guarantees for building coal-to-liquids plants capable of capturing carbon dioxide emissions
• Funding to help automakers re-tool to make alternative fuel vehicles
• Tax credits of up to $7,500 per vehicle for consumers who buy cars that run primarily on non-petroleum fuels.
• Tax credits for highly efficient vehicles
• $2.5 billion in funding for development and demonstration of next-generation biofuels and infrastructure
• Provisions to expand domestic nuclear power, such as increasing staff at the Nuclear Regulatory Commission

On July 30, the House easily approved two bills to improve water conservation:

1. H.R. 3957, sponsored by Rep. Jim Matheson (D-UT), which directs the Environmental Protection Agency to create a research and development program to improve water efficiency and conservation technologies.

The legislation would create:

• A water-use efficiency plan generated by EPA and the National Academy of Sciences, which would investigate strategies for managing water supply, wastewater, and stormwater.
• Four water-efficiency technology projects in residential and commercial buildings
• A national clearinghouse on technologies and processes to promote conservation

2. H.R. 2339, sponsored by Rep. Ralph Hall (R-TX), which directs the Energy Department to establish a program aimed at improving technologies that allow farmers and municipalities to use water extracted from energy projects. The measure would authorize $20 million annually from fiscal 2008 through 2016.

A package of 34 largely noncontroversial bills, including several key oceans research provisions, fell eight votes short of cloture on July 28th. The Senate will not likely return to the measure this year— Senate Majority Leader Harry Reid (D-NV) said he would not bring the measure back up for consideration again until a new Congress is in place.

Reid had lumped the small, noncontroversial bills together in an effort to expedite their passage, but Republicans, most notably Senator Tom Coburn (R-OK) stood firm in their insistence that the Senate address gas prices before taking up any other measures. Although most of the bills cleared committees with bipartisan votes, Coburn objected to higher spending authorizations and put a hold on most of the bills, forcing debate and votes on the Senate floor.

The omnibus measure included bills in areas ranging from health to foreign relations, but also included many important pieces of environmental legislation, such as:

• The BEACH Act (S.2844): Would require the Environmental Protection Agency to help states utilize the latest technology to test beach waters for contaminants. It would increase the amount of money available for water quality monitoring.
• Two bills for the National Oceanic and Atmospheric Administration: S.1581, which would create program to research and monitor the effects of ocean acidification on the marine environment and S.950, which would authorize the National Integrated Oceans Observing System, a program designed to feed data from U.S. coastal waters and the Great Lakes into the Global Earth Observation System of Systems, an international project to continuously monitor the global environment and improve environmental forecasts.
• A primate measure (S.1498): Would curb the trade of primates as pets by amending the Lacey Act to bar the transport of pet primates over state lines.
• Debt for Nature Program reauthorization (S.2020): Would reauthorize a program that helps countries conserve tropical forests, and expand it to include coral reefs and marine habitats. The original statute has helped conserve 50 million acres of forest around the world.
• National Sea Grant College Program reauthorization (S.3160): Would reauthorize a network of 32 university-based programs that work with coastal communities around the country, promoting the research of topics including water quality and biotechnology.
• Overseas Private Investment Corporation extension (H.R. 2798): Would extend the authority of a federal fund that invests in U.S.-based companies working on projects in developing countries, by requiring projects to comply with climate change mitigation policies.

Congress made limited progress on 2009 appropriations before the August recess. The Senate Appropriations Committee has now approved 9 of its 12 appropriations bills, but the full Senate has not debated any of them yet. Neither the House nor the Senate approved the Interior spending bill. As a result, a continuing resolution will likely maintain 2008 funding for associated agencies, most notably the Environmental Protection Agency and the U.S. Geological Survey, through March 2009.

The Commerce-Justice-Science spending bill (S. 3182) fared better, however, and was approved by appropriation committees in both the House and the Senate. The Senate’s version of the bill would match the Bush Administration’s request for a 12.5 percent increase in the National Science Foundation (NSF) budget (for a total of $6.9 billion)—this would keep NSF on track to double its budget between 2006 and 2016. The plan would also invest a total of $5.2 billion in NSF research and development (R and D), a 15.1 percent increase and an all-time high.

The 2009 NSF request and the Senate bill favor the physical sciences, however; programs such as engineering would see funding increases of almost 20 percent, compared to a 10 percent increase for the biological sciences.

Due to the tight overhaul of the budget, Commerce’s other main R and D agency, the National Oceanic and Atmospheric Administration, whose portfolio is oriented toward environmental R and D rather than the physical sciences, would be in line for cuts like most domestic programs. The Senate has a more generous domestic allocation to work with, though, and would grant an 8.9 percent ($52 million) increase.

Within Oceanic and Atmospheric Research:

• The Climate Research program would increase by 11 percent to $214 million
• The National Sea Grant College Program would remain stable at $57 million, instead of receiving a proposed cut
• The National Ocean Service would gain $13 million, primarily from the addition of Senate earmarked research projects.

The August recess is an ideal time for ESA members to bring up issues of concern with representatives in their home districts. Home office contact information is available on the Member’s website, and ESA’s Public Affairs Office is happy to assist interested members as needed.