Providing For Consideration Of H.R. 1105, Omnibus Appropriations Act,
Mr. Speaker, I oppose this totally closed rule. As the ranking Republican on the House Natural Resources Committee, I especially object to a very dangerous policy rider that could seriously threaten new job creation and economic growth…
Mr. Speaker, I oppose this totally closed rule. As the ranking Republican on the House Natural Resources Committee, I especially object to a very dangerous policy rider that could seriously threaten new job creation and economic growth across our entire country.
Section 429 of this bill allows the Secretary of the Interior to withdraw, with no public notice and no public comment, two rules established during the Bush administration that ensure the listing of the polar bear as threatened under the Endangered Species Act is not transformed into a vast new expansion of government power to impose greenhouse gas emission regulations on economic activity across America.
Section 429 empowers the Interior Department or a Federal judge to limit potentially any carbon dioxide or other greenhouse gas emission in all 50 States using the polar bear and the Endangered Species Act as a regulatory vehicle.
We all want to protect the polar bear. As the Washington Post editorialized last year, ``Though the polar bear deserves protection, the Endangered Species Act is not the means, and the Fish and Wildlife Service is not the agency to arrest global warming.''
By wiping out this rule under 429, any increase in carbon dioxide or greenhouse gas emission would be subject to a potential lawsuit on the grounds that the action must first require consultation with the Fish and Wildlife Service to mitigate emissions.
What emits greenhouse gases? I will name a few examples, Mr. Speaker. It's building a new factory in Pennsylvania or a new school on an Indian reservation, it's farming and cattle ranching. Most all of the shovel-ready projects on the trillion-dollar stimulus bill would, in fact, be at risk.
Democrats know section 429 is extremely controversial so they slipped this into this massive spending bill behind closed doors. Mr. Speaker, why the secrecy? The reason is obvious. Section 429 threatens the creation of new jobs in every State and can do real harm to our already troubled economy. This is a backdoor maneuver to warp the original purpose and intent of the Endangered Species Act to invent vast new climate change powers for the Federal Government to control economic activities.
Democrats claim section 429 is just an attempt to stop midnight rules completed at the end of the Bush administration. Yet, Mr. Speaker, these rules in the Bush administration were written in full compliance with the law. Democrats have written section 429 to say ``forget all the laws; forget public comment from the American people. We don't have to follow the laws. Just wipe these legal rules off the books that put jobs and our economy at risk.''
Mr. Speaker, I want to make note that last night the junior Democrat Senator from Alaska wrote to the Senate Democrat leadership expressing his deep concern and objections to this provision, the harm it could do to economic activity and that it should be removed from this legislation. That's exactly what we should be doing here today. And I ask my colleagues to support that action.
Again, Mr. Speaker, I strongly oppose this measure, and I urge my colleagues to open up the omnibus appropriations bill to amendment.
U.S. Senate,
Washington, DC, February 24, 2009.
Hon. Daniel Inouye,
Chairman, Senate Appropriations Committee, U.S. Capitol,
Washington, DC.
Dear Chairman Inouye: I write to express my serious concern
over Section 429 of the just-released House version of the
Fiscal Year (FY) 2009 Omnibus Appropriations Bill, H.R. 1005,
now being considered in the House of Representatives. This
section, which was included in the bill without any advance
notice, would provide significant new authority to the
Secretaries of Commerce and Interior to potentially overturn
two of the regulations the Bush Administration adopted under
the Endangered Species Act. One of the rules is the Polar
Bear Special 4(d) Rule, which has provided some much-needed
legal certainty to the application of the Endangered Species
Act to the North Slope of Alaska. The Secretary of the
Interior would have 60 days from the date of enactment of the
Omnibus Bill to withdraw or ``reissue'' the Special Rule for
the polar bear issued on December 10, 2008.
The language of Section 429 is attached. If Section 429 is
enacted as is, the Secretary would not have to comply with
any statutory or regulatory provision that would normally
affect such an action, including public notice or comments or
consultation requirements. Significantly, Section 429 also
authorizes the Secretary of the Interior to ``reissue'' the
4(d) Rule for the Polar Bear. It is unclear what actions the
Secretary may take in reissuing the rule. While it is
possible that the Secretary would only be authorized to
reissue the Special 4(d) Rule as it was previously published,
under an alternative interpretation, the Secretary may be
able to issue a revised rule, with major changes, without
having to comply with the typical procedural requirements of
the Administrative Procedure Act or the Endangered Species
Act. The existing legislative history of the Omnibus Bill
does not explain how Congress intends the term ``reissue'' to
be interpreted. This lack of clarity will only cause more
legal uncertainty, in an area of law where litigation already
is rampant. Activities of numerous businesses operating in
Alaska, and of the Inupiat people of the North Slope, will be
caught in this void.
Additionally, there would be no ``incidental take''
protection if Section 429 is enacted and the polar bear 4(d)
Rule is withdrawn, without a similar Rule in its place.
Should the Secretary decide to withdraw the 4(d) Rule under
Section 429, the polar bear would remain listed as a
threatened species under the Endangered Species Act. Under
the Department of the Interior's regulations, the full range
of Section 9 prohibitions apply to all threatened species
unless a species is subject to its own Section 4(d) rule. As
such, the activities currently covered, and protected, by the
4(d) Rule would be at risk for incurring liability under the
Endangered Species Act, should a take of a polar bear occur.
This liability would extend even to minor, incidental impacts
on polar bears from otherwise entirely lawful activities.
This could endanger the public if a polar bear wanders onto a
North Slope playground or village. This liability risk will
remain until the Secretary promulgates new Section 4(d)
regulations for the polar bear. Under this section, the
protections built into the current 4(d) Rule could disappear
without a replacement 4(d) Rule in the works.
I see no valid public policy reason to inflict on the
people of the North Slope significant legal uncertainly and
potential liability under the ESA, by congressionally waiving
ordinary public notice and comment requirements that
routinely apply in virtually all other settings. The
inclusion of Section 429 is particularly disturbing in that
it effectively ``cherry-picks'' and exempts certain
regulations and has the effect of depriving the public of due
process. Irrespective of whether one agrees or disagrees with
the substance of rules adopted by the prior administration,
this action sets a bad precedent. If the current
administration disagrees with a rule previously adopted,
there exists a process by which the rule can be reviewed and
the notice and participation rights so citizens respected.
Finally, the underlying policy goal at issue here--using the
Endangered Species Act to regulate climate change--is far too
important a matter to be decided without debate as a non-
germane portion of an appropriations bill.
I understand that the House may move to strike Section 429
as an extraneous rider. If the motion to strike is not
adopted, I respectfully request your assistance and
leadership in seeking to omit the language from a Senate
bill, or seeking to have the language omitted from any final
House-Senate agreement.
Thank you for your consideration and assistance in this
important matter.
Sincerely,
Mark Begich,
U.S. Senator.
Will the gentleman yield on that point?
I thank the gentleman for yielding.
Two points. The reason this ruling came about was because of the listing of the polar bear and that the Bush administration started this process, which is required by law----
Will the gentleman yield?
There's probably some disagreement on the rule. But why not go through the regular process to change the rule? You're doing it without any regular process.