Midnight Regs: Many Environmental Items on Final Bush Agenda (Part 1)

As the Bush administration closes out its terms in office, a number of rules, policies, orders, and other actions related to the environment are expected by Jan. 19, 2009. We've highlighted some of these, and provided a few general resources for tracking various issues. Other moves by the administration will turn up in coming months.

The Bush administration criticized the "midnight regulations" of the outgoing Clinton administration in 2001. While the ostensible purpose of a May 9, 2008, memo by White House Chief of Staff Joshua Bolten is to avoid midnight regs, some critics say it's an exhortation to get them done early.

One thing's likely: regulations and their timing over the next seven months could impact — or be impacted by — the presidential election. Bolten's memo gave agencies a deadline of June 1 to propose regs and a deadline of Nov. 1 to finalize them.

Since there are so many forthcoming regulatory and administrative actions related to the environment, this edition of the TipSheet will publish a selected list of those likely to be acted on first. A fuller list of actions, almost twice as many, will be published here July 9, 2008.

• "Bush Wants Sun to Set on Midnight Regulations," Washington Post, June 3, 2008, by Cindy Skrzycki.
• "Administration Moves to Avert a Late Rules Rush," New York Times, May 31, 2008, by Charlie Savage and Robert Pear.
• "Analysis of White House Memo on Midnight Regulations," OMB Watch, June 2, 2008.

GENERAL RESOURCES

• The federal government's "Unified Agenda of Regulatory and Deregulatory Actions" is a good tracking tool.

  Select a department, agency, commission, etc. to peruse (e.g., Dept. of Agriculture, Environmental Protection Agency, Nuclear Regulatory Commission). You'll get a list of many actions in various stages. Those in the "Final Rule Stage" are among those that could wrap up before Bush leaves office, but so are some in the "Proposed Rule Stage." You can then click on a link associated with any item to find out more, including a target date for when the rule may be finalized. Or if you know what you're looking for, you can search by key word(s). However, you have to know exactly what you're looking for. If you search for the words "gun" or "weapon," you won't turn up any hits if the only term used to describe it in the Agenda is "firearm."

• Some federal organizations maintain their own list of upcoming actions that may turn up other, or additional, information. For instance, EPA maintains an Action Initiation List, which describes processes that have begun in the past two months, and provides a link to similar actions begun in earlier months.

The Bush administration has put into place many policies, procedures, and directives that have significantly altered how environmental issues are handled, and will strongly influence how the next administration can deal with these issues (unless the new administration takes the initiative and time to revise them). Similar actions may be enacted in the next few months, though they often stay under the radar. To get a sense of past actions:

• Union of Concerned Scientists, February 2008, "Federal Science and the Public Good," Lisa Nurnberger, 202-331-6959.
• A list of organizations and expert sources who can comment on many of these subjects can be found in the final section of this article.

MIDNIGHT REGS: POTENTIAL FINAL ACTIONS

SMALL ENGINE EMISSIONS STANDARD

Emissions from small engines, such as those in lawn mowers and some boats, can be important contributors to an area's smog problems. An EPA rule that could reduce such emissions has been in the works for many years. Final approval of the rule could come at any time, though the many political machinations that have been part of the process so far could again influence the timing.

• EPA Rule.
• Example of previous media coverage: New York Times, April 24, 2006, by Felicity Barringer, "A Greener Way to Cut the Grass Runs Afoul of a Powerful Lobby."

DISCHARGES FROM SHIPS

In response to a US District Court ruling that is under appeal, EPA is in the process of adopting new procedures and requirements for issuing permits for discharges from ships and boats. The action could affect up to 91,000 commercial vessels, 13 million recreational boats, and 8,000 foreign-flagged vessels. The new permits are expected to be in place by Sept. 30, 2008, but are supposed to be only temporary until the agency and Congress agree on a long-term solution. According to EPA, its current proposal will provide a "practical," and "common sense" approach "without imposing new permits on millions of boaters."

The last of three public meetings in the field will be held June 26, 2008, in Chicago. There will be a public Webcast July 2, and a hearing July 21 in Washington, DC.

• EPA Web site; June 16, 2008, press release.

Many potential sources are noted in TipSheets of Feb. 18, 2004; and Nov. 1, 2000. Groups that represent owners and operators of smaller boats will also be sources.

FEEDLOTS AND CLEAN WATER ACT PERMITS

If a feedlot's operators declare that they aren't discharging any pollutants into their watershed, they won't be required to get a Clean Water Act permit, under a new rule being developed by EPA. Such reliance on an industrial operator's self-assessment could result in no monitoring, inspections, reporting, or other regulatory actions, says the Sierra Club's Ed Hopkins, 202-675-7908. The rule, which has been revised following a US Court of Appeals rejection of an earlier rule, is scheduled to be finalized in July 2008.

• EPA Rule and March 7, 2008, Federal Register, Supplemental notice of proposed rulemaking.

MINING ON USFS LANDS

The US Forest Service is developing a rule that would revise how mining could occur on the lands it manages. Critics say the changes would allow easier approval for smaller mining operations, transfer the costs for environmental impacts from mining companies to the public, and reduce the ability of the public to comment on proposed mines. Timing for finalization of the rule is unknown, but it could occur before Bush leaves office. The public comment period ended in late May 2008, and an anticipated extension of the comment period was canceled at the last minute.

• USFS Rule.

FIREARMS IN PARKS

Loaded, concealed weapons could be carried by visitors to some National Parks, under a rule being developed by the National Park Service. Under current law, firearms are allowed if they are unloaded and safely stored. NPS says the new rule would allow loaded weapons where a park is in a state that allows loaded firearms in its parks. Critics, including many park rangers and former directors of the NPS, say the change could increase the potential for dangerous conflicts, and would create a confusing situation for visitors, since policies differ from state to state. In addition, some states have variable policies that allow loaded weapons in some parks or under certain conditions, but not others. Supporters of the new rule include groups such as the National Rifle Association. The date for finalization of the new rule is uncertain, but it could occur this summer, or around early November.

• NPS Rule.
• EJToday, May 1, 2008, "Kempthorne Proposal Would Ease Ban on Guns in National Parks."

ENDANGERED SPECIES: CHANGING THE RULES

The BLM is revising its Special Status Species Manual in ways that may lessen protection of endangered and threatened species. The altered policy directives could lead to reduced protection of critical habitat, reduced or eliminated protection for species declared endangered or threatened by states (but not BLM), reduced protection for species awaiting listing as endangered or threatened, and deletion of some species reviews by the US Fish and Wildlife Service. Timing for completion of the revisions is uncertain.

• Center for Native Ecosystems, Lisa Belenky (attorney for the Center for Biological Diversity), 415-436-9682 x307; June 4, 2008, release (includes a link to a draft of the BLM manual).

ENDANGERED SPECIES: CANADA LYNX (US HABITAT)

The US Fish and Wildlife Service is revising its definition of critical habitat for the US range of the Canada lynx. This could affect the states of ME, MN, MT, WA, and WY. Critics say it should also include states such as CO and ID. In some cases, private landowners are asking that their properties be excluded from being designated as critical habitat, which could drastically reduce the amount of protected land. By court order, FWS must issue its determination by Feb. 15, 2009, but the decision could come before Bush leaves office. A supplemental notice of proposed rulemaking is expected in July 2008.

The decision on Canada lynx is one of seven endangered species findings that FWS is reviewing after the agency acknowledged excessive political interference from former Deputy Assistant Secretary Julie MacDonald, who resigned in 2007. Findings on several dozen other species are also under investigation.

• FWS Rule.

ENDANGERED SPECIES: NORTHERN SPOTTED OWL

A decision on the designation of critical habitat in CA, OR, and WA for the northern spotted owl is expected at any time.

• FWS Rule.

NEPA REVISIONS

Throughout this administration's years in office, agencies and departments have been revising their National Environmental Policy Act(NEPA) processes (with BLM being a recent example). One common thread has been reductions in the public participation process. Agencies and offices that are working on NEPA revisions that may come out in the next few months include the Dept. of the Interior, the US Forest Service, USDA's Animal and Plant Health Inspection Service, and the White House's Council on Environmental Quality, which is looking at how NEPA and the National Historic Preservation Act interact.

• TipSheet of May 25, 2005.

MIDNIGHT REGS: ONE-STATE ISSUES THAT COULD HAVE IMPLICATIONS ELSEWHERE

• Exemption allowing importation of PCB-contaminated waste in Port Arthur, TX, by a waste incineration company called Veolia ES Technical Solutions.
• Allowing use of US Forest Service roads to access large-scale residential development on privately-held timber company lands in MT. Example of media coverage: The Missoulian, June 9, 2008, by Michael Jamison, "Rey to Explain Plum Creek Deal."
• Designation of areas where the Preble's meadow jumping mouse is threatened. This decision, which would affect Colorado, and possibly WY and other states, could come at any time. It follows numerous controversies, including court action, over whether these animals represent a distinct subspecies, and whether and where their existence is threatened. The mouse is another of the species whose status was influenced by alleged political interference by the now-resigned Julie MacDonald with the US Fish and Wildlife Service. FWS Rule.

MIDNIGHT REGS: OTHER POTENTIALLY NEWSWORTHY ACTIONS

CATEGORICAL EXCLUSIONS

• For environmental review of some ski area development, scheduled to be finalized in July 2008.
• For environmental review of selected Dept. of Transportation projects, scheduled to be finalized in June 2008.

SOME KEY SOURCES

• Air Issues: Clean Air Watch, Frank O'Donnell, 202-302-2065.
• Parks: National Parks Conservation Association, Mark Wenzler, 202-223-6722 x101.
• Parks: Coalition of National Park Service Retirees, Bill Wade, 520-615-9417.
• Endangered Species and EPA Issues: Earthjustice, Joan Mulhern, 202-667-4500 x223.
• Forest, Wildlife, Land Issues: Sierra Club, Ed Hopkins, 202-675-7908.
• Mining Issues: Earthworks, Lauren Pagel, 202-887-1872 x207.
• Mining Issues: National Mining Association, Luke Popovich, 202-463-2620.
• Agriculture Issues: American Farm Bureau Federation, media, 202-406-3642.
• Air Pollution Issues: National Assn. of Manufacturers, 202-637-3134.
• Business Issues: US Chamber of Commerce, Bill Kovacs, 202-463-5533.