Several controversial regulations are being finalized during the waning weeks of the Bush Administration, making sweeping changes that the new Congress and Administration are vowing to try and stop, reports the Wildlife Management Institute. While the regulations are touching various areas including health care and traffic safety, those that impact natural resources and the environment seem to be most numerous.

In particular, rules that impact Endangered Species Act (ESA) consultation, mountaintop mining and oil shale development are raising substantial concerns.

President Bush could finalize as many as 45 new rules between Election Day and his last day in office reports the Mercatus Center, a public-policy group affiliated with George Mason University in Arlington, Virginia. However midnight regulations?the term used for the dramatic increase in new regulations in this "midnight" period of an Administration?is not necessarily unusual. President Jimmy Carter published more than 24,000 pages of new regulations in the midnight hours of his term, and President Bill Clinton pushed through last-minute regulations as late January 22. In addition, many rules and regulations take a substantial amount of time to prepare.

"The Administrative Procedure Act (generally known as the APA) governs the regulatory process, and it requires federal agencies to go through a series of time-consuming steps before issuing a regulation. For any significant regulation, this process takes at least 18 months and normally takes several years," noted Jeffrey Holmstead, partner in the law firm Bracewell & Giuliani and a former EPA official, during testimony in front of the House Select Committee on Energy Independence and Global Warming last December. "Officials in the Bush Administration, like officials in prior administrations, have been working on a wide range of regulatory issues and, like officials in prior administrations, they want to get them finished before they leave office?. I also think it would be irresponsible for a President to cease all regulatory work months before his term in office is over. We elect our Presidents for a specific term and we expect them to carry out their work during that entire term, and regulatory policy making is a crucial part of these duties."

This past summer, White House Chief of Staff Joshua Bolten requested agencies to propose by June 1 any rules they wanted finalized before the end of the Administration and that all rules become final by November 1 "except in extraordinary circumstances." Several key changes, including ESA consultation, were not proposed until later in the summer. Because many of the rules were posted in the Federal Register in November and December, they will go into effect in early January making it more difficult and time-consuming for the incoming Administration to stop or change them. Democrats on Capitol Hill are already saying they will use the Congressional Review Act to reject the rules.

ESA Consultations
On December 16, the departments of the Interior and Commerce published their final regulations on consultation requirements under the ESA; the rule will go into effect on January 15. The idea behind the rule change was discussed in concept for several years, but the listing of the polar bear as threatened under the ESA provided the impetus to move forward. When the rule change was proposed in August 2008 (see this September ONB article), it met with substantial criticism from environmental organizations.

Under existing regulations, managers of a proposed project must assess if there are any endangered species in the area and if there will be any likely impacts to those species. In addition, the agency must consider the cumulative and indirect effects of the action. Any of these instances would trigger a consultation with either the U.S. Fish and Wildlife Service or the National Marine Fisheries Service.

Some changes were made in the final regulations in response to public comments. Specifically, the rule was narrowed from the proposed regulation so there will be fewer opportunities for federal agencies to proceed without consultation. The final regulations require federal agencies to follow all existing consultation procedures except in instances whereby an action is not anticipated to impact adversely any member of a listed species and that action fulfills one of the following criteria:
??? ?it has no effect on a listed species or critical habitat;
??? ?it is wholly beneficial;
??? ?its effects can not be measured or detected in a manner that permits meaningful evaluation using the best available science;
??? ?its effects are the result of global processes and cannot be reliably predicted or measured on the scale of species current range, or would result in an insignificant impact to a listed species, or are such that the potential risk of harm to a species is remote.

However, action agencies still may engage voluntarily in the informal consultation process. The final provision was an effort to limit the consideration of climate change impacts when assessing impacts to species.

"What we are doing is clarifying the threshold for consultation to occur. If science cannot draw a direct causal link between an action and an effect on a listed species, as is currently the case for global processes like climate change, then consultation under the ESA is not necessary," commented Department of the Interior Secretary Dirk Kempthorne when he announced the final rule. "I recognize that any modifications involving the ESA are inherently controversial. The law evokes great emotion across the country. Will everyone agree with me on this decision?? I don't expect so. Even within my own Department of 70,000 there are differences of opinion as to the process that was taken in making this decision. But I am confident that we have taken a common sense approach, developed over months of work, to adopt needed and legally appropriate changes to our existing regulations."

Mountaintop Mining Rule
On January 12, a new rule by the Office of Surface Mining, Reclamation and Enforcement (OSM) that weakens regulation of waste disposal during mountaintop mining went into effect. A 1983 rule prohibited companies from depositing the fill from mountaintop surface mining within 100 feet of streams, though enforcement of the restriction has been lax. The new regulation expands the 100-foot buffer to all waterways, but would allow mining companies to get a permit for waste disposal as long as they show, on a case-by-case basis, that they are trying to minimize the waste. In addition, certain practices, including permanent spoil fills and coal-waste disposal facilities, or altering a waterway's flow, would be exempted, provided the mining company will repair the damage later.

Mountaintop mining is a practice used predominantly in Appalachia, where coal is mined by blasting the tops of mountains then the debris is pushed into nearby valleys to reveal the coal seams. Mountaintop mining accounts for 10 percent of the nation's coal production and is cheaper and safer than underground mining. It is estimated that 1,600 miles of streams have been filled since the 1980s and that 100 miles per year could be filled under the new rule.

The Administration and mining companies claim the rule change is necessary to end litigation over whether the Surface Mining Control and Reclamation Act of 1977 was intended to allow these valley fills. A series of court decisions provided conflicting interpretations leading OSM to begin the rule-making process five years ago. The first version of the proposed rules were issued in January 2004 and a revised proposal in August 2007. The rule received final approval by the Office of Management and Budget and the Environmental Protection Agency (EPA) in early December. EPA's approval was given after receiving concession from the OSM that mining activity that would impact water quality must be approved under the Clean Water Act.

Oil Shale Development
New regulations to create an oil shale leasing program within the Bureau of Land Management (BLM) will go into effect on January 17. In addition, in early January, the Department of the Interior lifted a 1930 executive order banning oil shale development in Utah and Wyoming. The new orders will go into effect on February 9 and will affect nearly 2 million acres in Utah and roughly 6 million acres in Wyoming. According to the BLM, the new rule and the revocation of the ban on oil shale development are in response to the Energy Policy Act of 2005, which required the Department to craft plans to make public lands available for conducting oil shale research and development activities.

Oil shale is a fine-grained sedimentary rock containing organic matter (undecayed algae called "kerogen") from which shale oil can be extracted and refined into synthetic crude oil. Oil shale is solid rock and must be mined and treated in place to release the kerogen from the rock. Over the past 60 years, researchers for energy companies have developed and tested a variety of technologies for extracting the oil shale and producing fuels. The 16,000-mile Green River Formation in Colorado, Utah and Wyoming is the world's largest known deposit and is estimated to contain the equivalent of 1.5 and 1.8 trillion barrels of oil. Eighty-two percent of the oil shale resources in the Green River formation are under federal public lands.

The new rules provide the regulatory framework for commercial oil shale development including royalty rates and lease sizes. Royalty rates for oil shale will be substantially less than conventional oil?5 percent during the first five years of production compared with 12.5 percent?because the Department says companies will have to spend hundreds of millions to develop the oil shale.

Opening federal lands for oil shale development has been highly controversial, largely because of the expansive area that would be opened for development but also because of the environmental impacts of current oil shale production technology. Senator Ken Salazar, President-elect Obama's nominee for Secretary of the Interior, has been a vocal critic of the rapid push for oil shale development. He criticized the rules as being hasty and without due consideration for the environmental impacts, particularly the effect on limited water supplies in the West.

"Rather than completing the necessary research and development, the Bush Administration is rushing ahead with rules for a development process they know little about," Salazar said. (jas)