In the final days of the Bush Administration, there was a flurry of activity as the White House worked to finalize a laundry list of controversial federal regulations weakening protections for clean air, clean water, endangered species, and public lands. One of the most harmful new rules makes it easier for coal companies to dump rock and dirt from mountaintop removal/valley fill mining operations into nearby streams and valleys. The rapidly declining Cerulean Warbler, which relies on mature forests, and whose range includes the Appalachian coal fields, would be particularly negatively impacted by this rule. Mountaintop mining destroys the large tracts of mature, structurally diverse deciduous forests required by Ceruleans, reducing their breeding densities and nesting success.

Another rule permits federal agencies to determine on their own, without having to consult with endangered species experts at FWS, whether their actions will have any effect on endangered species. These agencies typically have no biological expertise to make such determinations, potentially endangering the 90 birds and 1,263 other animals and plants that are currently on the Endangered Species List. For example, the Bureau of Land Management would decide whether proposed activities on their forested land in the Pacific Northwest would be detrimental to Northern Spotted Owl habitat. This rule would eliminate external accountability, and when dealing with endangered species, that is a risk that should not be taken.

The Obama Administration’s first response to these rule changes occurred just hours after he took the oath of office.  Chief of Staff Rahm Emanuel issued a memo to executive branch agency heads putting a freeze on all regulations that were still in the pipeline.  The memo also gave the agency heads the discretion to decide how they wanted to deal with rules that had already been finalized but which had not taken effect yet.  The Director of Office of Management and Budget Peter Orszag issued a follow up memo a day later outlining some of the options  available to agency heads which included extending the effective date of a rule to reopen the notice and comment period to allow interested parties to submit comments;  issuing an interim final rule while undertaking a new rule making process to revise or replace a questionable rule; and deciding not to defend or to settle court challenges to rules that were finalized by the Bush Administration.

Congress can take action by using the 1996 Congressional Review Act (CRA) to roll back the regulations. Under the CRA, all that is required is a majority vote in both the House and the Senate, along with the President’s signature, to cancel a rule within 60 days of its submission to Congress. Chairman of the House Resources Committee Nick Rahall has proposed a House Resolution (H.J.Res. 18) to use the CRA to overturn the Section 7 rule change.  Congress can also decide to withhold funding for the implementation of these regulations by adding language to the FY 09 Omnibus Appropriations bill which would only be in effect until the end of the fiscal year. 

--American Bird Conservancy

Lawmakers have expressed their eagerness to block these “midnight” regulations and are currently working with the Obama administration to decide what the best course of action would be in each case.  For more information, contact Anne Law, American Bird Conservancy, alaw@abcbirds.org.