[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]





   APPROACHING MIDNIGHT: OVERSIGHT OF THE BUSH ADMINISTRATION'S LAST 
                           MINUTE RULEMAKINGS

=======================================================================

                                HEARING

                               before the
                          SELECT COMMITTEE ON
                          ENERGY INDEPENDENCE
                           AND GLOBAL WARMING
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                           DECEMBER 11, 2008

                               __________

                           Serial No. 110-52







             Printed for the use of the Select Committee on
                 Energy Independence and Global Warming

                        globalwarming.house.gov



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                SELECT COMMITTEE ON ENERGY INDEPENDENCE
                           AND GLOBAL WARMING

               EDWARD J. MARKEY, Massachusetts, Chairman
EARL BLUMENAUER, Oregon              F. JAMES SENSENBRENNER, Jr., 
JAY INSLEE, Washington                   Wisconsin, Ranking Member
JOHN B. LARSON, Connecticut          JOHN B. SHADEGG, Arizona
HILDA L. SOLIS, California           GREG WALDEN, Oregon
STEPHANIE HERSETH SANDLIN,           CANDICE S. MILLER, Michigan
  South Dakota                       JOHN SULLIVAN, Oklahoma
EMANUEL CLEAVER, Missouri            MARSHA BLACKBURN, Tennessee
JOHN J. HALL, New York
JERRY McNERNEY, California
                                 ------                                

                           Professional Staff

                    Gerard J. Waldron Staff Director
                       Aliya Brodsky, Chief Clerk
                 Thomas Weimer, Minority Staff Director














                            C O N T E N T S

                              ----------                              
                                                                   Page
Hon. Edward J. Markey, a Representative in Congress from the 
  Commonwealth of Massachusetts, opening statement...............     1
    Prepared statement...........................................     3
Hon. Emanuel Cleaver II, a Representative in Congress from the 
  State of Missouri, opening statement...........................     5
    Prepared statement...........................................     6
Hon. John Hall, a Representative in Congress from the State of 
  New York, opening statement....................................     7
Hon. Jay Inslee, a Representative in Congress from the State of 
  Washington, opening statement..................................     8

                               Witnesses

Robert Kennedy Jr., Chairman, Waterkeeper Alliance...............     8
    Prepared statement...........................................    12
Jamie Rappaport Clark, Executive Vice President, Defenders of 
  Wildlife.......................................................    22
    Prepared statement...........................................    25
    Answers to submitted questions...............................   128
Jeffrey Holmstead, Partner, Bracewell & Giuliani LLP.............    35
    Prepared statement...........................................    37
John Walke, Clean Air Director, Natural Resources Defense Council    40
    Prepared statement...........................................    43

 
   APPROACHING MIDNIGHT: OVERSIGHT OF THE BUSH ADMINISTRATION'S LAST 
                           MINUTE RULEMAKINGS

                              ----------                              


                      THURSDAY, DECEMBER 11, 2008

                  House of Representatives,
            Select Committee on Energy Independence
                                        and Global Warming,
                                                    Washington, DC.
    The committee met, pursuant to call, at 10:00 a.m. in Room 
210, Cannon House Office Building, Hon. Edward J. Markey 
[chairman of the committee] presiding.
    Present: Representatives Markey, Inslee, Cleaver, and Hall.
    Staff Present: Morgan Gray.
    The Chairman. Welcome, ladies and gentlemen, to this Select 
Committee on Energy Independence and Global Warming hearing. 
While the clock may be winding down on the Bush 
administration's time in office, its regulatory damage is 
unfortunately far from over. The administration is currently 
working on finalizing a number of last minute rule changes 
that, if enacted, will have serious negative impacts on our 
environment long after this administration has left office. 
Those proposed midnight rules are so numerous and far reaching 
that they would harm everything from the quality of our air and 
water to our public lands, to the survival of endangered 
species and our warming climate.
    Indeed, the Bush administration is on pace to do almost as 
much damage to our environment in its last 8 weeks in office as 
it did over the last 8 years. The administration has set its 
regulatory sights on two of our Nation's longest standing and 
most important environmental laws. The Environmental Protection 
Agency is attempting to push through multiple rules that will 
severely weaken clear air, degrading air quality of all 
Americans and worsening our climate crisis. Meanwhile, the 
Department of Interior is seeking to gut the Endangered Species 
Act by removing scientific input weakening protections for 
iconic species like the polar bear and preventing consideration 
of the impacts of global warming.
    The administration is seeking to make these sweeping 
changes to the Endangered Species Act while minimizing public 
input and review. Recently, the Bush administration rushed 
through consideration of 300,000 comments on the proposed rule 
in 32 hours. And then provided a mere ten days for the public 
to review the environmental assessment of the changes. The 
administration is also pushing to ease restrictions on some of 
the most destructive practices for our climate. The Interior 
Department is in the process of issuing rules that will remove 
key protections against mountaintop removal mining and allow 
the development of oil shale in 2 million acres of western 
public lands.
    With so much work to be done on the economy, energy and 
health care it is unfortunate that President-elect Obama and 
the Democratic Congress will have to expend so much time 
recovering from the regulatory nightmare of these midnight 
rulemakings. Sadly, these rule changes are not a deviation from 
the Bush administration record. They are the culmination of 8 
years of industry handouts and environmental deregulation. By 
ramming through these eleventh-hour regulations, President Bush 
will simply cement his legacy as the most anti-environmental 
President in our Nation's history.
    Today the Select Committee has convened an oversight 
hearing with a panel of environmental and regulatory experts to 
further examine some of the most egregious of those last-minute 
rule changes. It is imperative that the Bush administration not 
be allowed to finalize these rules under the cover of darkness 
without public scrutiny. It is amazing what casting a little 
sunlight on these midnight regulations can do. Late yesterday 
afternoon, the EPA announced that it would drop its attempt to 
issue a regulatory loophole that would have allowed dirty power 
plants to produce even more air pollution and heat trapping 
emissions, which had been recommended by the Cheney secret 
energy task force. This reversal prevented a rule change that 
would have increased global warming pollution by the equivalent 
of adding 50 million cars to the roads. In addition, the EPA 
subsequently confirmed reports that it would also abandon its 
push to roll back regulations on air pollution in our national 
parks and wilderness areas. The committee and this Congress 
will continue to keep a watchful eye on the Bush 
administration's regulatory actions until they have turned off 
the lights at 1600 Pennsylvania Avenue once and for all. Now, 
let me turn and recognize the gentleman from Missouri, Mr. 
Cleaver, for an opening statement.
    [The prepared statement of Mr. Markey follows:]



    
    Mr. Cleaver. Thank you, Mr. Chairman. And thank you for 
this hearing, because I think that it is important for the 
Nation to understand what is actually taking place. As the Bush 
administration winds down, they are also winding up their 
efforts to do further damage to the U.S. environment. And I 
would hope that through this hearing and testimony from our 
witnesses that we will be able to alert not only our colleagues 
here in Congress, but the people around this Nation who are 
concerned that their children and their children's children 
might not have the opportunity to live in an environment that 
is conducive for human habitation if these moves by the 
administration continues.
    The administration of Barack Obama to come in is hiring and 
bringing in new staff, but at the same time, we are going to 
have to look at this bold and reckless action that is taking 
place right now around irresponsible rule making. So I look 
forward, Mr. Chairman, to having the opportunity to become 
dialogical with our witnesses and to sound the alarm to the 
American public. I yield back the balance of my time.
    [The prepared statement of Mr. Cleaver follows:]



    
    The Chairman. Great. The gentleman's time is expired. The 
Chair recognizes the gentleman from New York, Mr. Hall.
    Mr. Hall. Thank you, Mr. Chairman, for holding this 
important hearing, and thank you to our witnesses today for 
being here, especially my fellow New Yorker, Mr. Kennedy. I am 
pleased that we are holding this hearing today to call 
attention to these several so-called midnight rules affecting 
the environment that the outgoing administration has proposed. 
They apply to very technical subject matter that is often 
overlooked by the media, particularly in the wake of all the 
press coverage associated with the incoming administration. But 
if allowed to stand, these rules could have very serious long-
term effects on human health, the environment. And Congress has 
a responsibility to conduct appropriate oversight of these 
actions. Take, for example, just three of the regulations under 
consideration here today. First, if allowed to be implemented 
the administration's rule changing, the section 7 consultation 
process under the Endangered Species Act could have far 
reaching implications for how the Federal Government protects 
endangered species. Section 7 of the ESA requires Federal 
agencies to conduct with the Fish and Wildlife Service and/or 
the National Marine Fishery Service. When either of the two 
agencies determine that a Federal agency's action could impact 
a threatened or endangered species the purpose of that 
consultation is to seek solutions to mitigate any harmful 
affects on wildlife.
    The proposed final rule awaiting action of OMB would 
reverse this process, instead allowing Federal agencies the 
discretion their own discretion as to whether they need to 
consult with the services. The effect of this rule would be to 
take away the decision making authority from trained biologists 
and instead place it in the hands of political appointees in 
the bureaucracy. It is yet another attempt to politicize 
decisions that should be based purely on sound science.
    The administration also proposes weakening the Clean Air 
Act with respect to pollution in the national parks. The EPA 
currently measures air pollution in the national parks based on 
a 3-hour and 24-hour increment. A proposed final rule awaiting 
action to OMB would change the measurement metric to annual 
pollution averages, thus allowing for significant spikes in 
pollution during the peak summer months. The practical effect 
of this rule change is to make the air dirtier in our national 
parks, expose visitors to all the risks ranging from asthma to 
heart disease and others that are associated with air 
pollution. The administration is also using a tortured 
interpretation of section 4(d) of the Endangered Species Act to 
avoid issuing regulations to polar bears recently listed as 
threatened under the Act.
    Section 4(d) requires that the Secretary issue regulations 
to protect threatened species. But in the regulations issued 
and awaiting final approval the Secretary effectively exempts 
oil and gas companies and their activities from having to 
develop plans to protect polar bears and to mitigate impacts on 
their habitat. It also limits the applicability of 
consideration of climate change with respect to the polar bear 
listing despite overwhelming evidence that climate change is 
responsible for habitat loss.
    These are just three examples of midnight regulations 
pending at OMB that will affect the environment, human health 
and wildlife. And the hearing today will touch on many more 
unfortunately. It is imperative that we examine these so that 
the House can take whatever actions necessary to reverse them 
or change them so they reflect the intent of Congress when it 
passed the statutes originally. Thank you, Mr. Chairman, and I 
look to the testimony of our witnesses and I yield back.
    The Chairman. The gentleman's time is expired. The Chair 
recognizes the gentleman from Washington State, Mr. Inslee.
    Mr. Inslee. Thank you. I want to thank our witnesses, all 
of who have been doing great service for the country and the 
environment during the long darkness, environmental darkness of 
the Bush administration. I want to thank you for keeping the 
hope alive during that long 8 years. I do want to express 
disappointment, if not shock, that this administration is going 
out the way they have governed, which is with great arrogance 
towards the public and great indifference to the species they 
have a responsibility to protect. And I want to thank the Chair 
for holding this hearing, because I would look at this as just 
sort of a final capping of the environmental nightmare of the 
Bush administration and the beginning of our effort to restore 
integrity to the law and to our environmental programs in this 
country. And I think we should use this as a springboard to be 
back here January 6th to really redouble our efforts to 
following the law. Thank you.
    The Chairman. Great. The gentleman's time has expired. Now, 
we will turn to our witnesses. And our first witness today is 
Mr. Robert F. Kennedy, Jr., who is President of the Waterkeeper 
Appliance. Mr. Kennedy is one of our Nation's foremost 
champions for clean water and clean air, who has led the fight 
to restore the Hudson River and protect New York City's water 
supply. For his environmental leadership, Mr. Kennedy was named 
one of Time Magazine's Heroes of the Planet. He is a tireless 
advocate, a prolific author and a living environmental legend.

   STATEMENTS OF ROBERT KENNEDY, JR., CHAIRMAN, WATERKEEPER 
  ALLIANCE; JAMIE RAPPAPORT CLARK, EXECUTIVE VICE PRESIDENT, 
DEFENDERS OF WILDLIFE; JOHN WALKE, CLEAN AIR DIRECTOR, NATURAL 
  RESOURCES DEFENSE COUNCIL; AND JEFFREY HOLMSTEAD, PARTNER, 
                   BRACEWELL & GIULIANI LLP.

    The Chairman. And we welcome you, Mr. Kennedy. Whenever you 
are ready, please begin.

              STATEMENT OF ROBERT F. KENNEDY, JR.

    Mr. Kennedy. Thank you, Mr. Chairman. I want to start just 
by expressing my gratitude to the Capitol Police for incredible 
detective work this morning of recovering my suitcase, my 
briefcase from the taxicab that took off when I went to check 
whether the Capitol door was open. I think it involved looking 
at some tapes and enlarging a license plate. But they did get 
my testimony back to me only moments ago and they were 
incredibly nice. And I also want to thank you, Mr. Chairman, 
for your leadership on this issue, as well as my friend, 
Congressman Jay Inslee, Congressman John Hall and Congressman 
Cleaver all of whom have demonstrated extraordinary leadership 
on this issue. We have been fighting a rear door guard action. 
Over the past 8 years, we had the finest environmental laws in 
the world in this world that we passed, 28 major environmental 
laws that we passed after Earth Day 1970.
    The last 8 years--if you look at--as you pointed out, this 
is the worst environmental administration that we have ever had 
in American history, bar none. If you look at NRDC's Web site, 
you will see over 400 major environmental rollbacks that have 
been promoted or implemented by this White House over the past 
8 years as part of a deliberate concerted effort to eviscerate 
30 years of environmental law. It has been a stealth attack. 
The White House has used all kinds of ingenious machinations to 
conceal this radical agenda from the American people, including 
Orwellian rhetoric. When they wanted to shore the forests, they 
call it the Healthy Forest Act. When they wanted to shore the 
air they call it the Clear Skies Bill. Most insidiously, they 
put polluters in charge of virtually all the agencies of 
government that are supposed to be protecting Americans from 
pollution.
    In the head of the forest service, they put in a timber 
industry lobbyist Mark Ray, probably the most rapacious in 
history. As head of public lands and mining industry lobbyist, 
Steven J. Griles, now serving a ten-month jail sentence. But 
Mr. Griles, for 20 years, has been saying that he believes that 
public lands are unconstitutional. And they put him in charge 
of public lands. In the head of the air division, Mr. 
Holmstead, who is sitting to my left, who has been during 
virtually all of his career an attorney for the worst polluters 
in this country, particularly utility air polluters as second 
in command of EPA, a Monsanto lobbyist. As head of the 
Superfund, a woman whose last job was teaching corporate 
polluters how to evade Superfund. The President's chief 
environmental advisor Philip Cooney, the head of Council on 
Environmental Quality, was a lobbyist for the American 
Petroleum Institute.
    In addition to that, these people very cleverly and very 
ingeniously, over the past 5 years, because the American public 
supports these laws as you know, but they have deviously and 
ingeniously used riders, used all kinds of alternations and 
guidance and interpretations and then back-door regulatory 
manipulations in order to do this, in order to eviscerate these 
laws out of sight of the American public. And these last--this 
final effort that President Bush and his cronies are attempting 
is some of the most, we are seeing some of the most damaging 
efforts of all to finally, to take down the final safeguards of 
the environment and public health that have been erected by 
Congress, Republicans and Democrats in Congress in the White 
House over the past 30 years.
    I filed very detailed testimony about some of the worse of 
these actions. But I just wanted to give you a real life 
expression of what is going on. I flew over only a few weeks 
ago over the Appalachian Mountains over eastern Kentucky and 
West Virginia, mainly over the Cumberland plateau. If the 
American people could see what I saw on that trip there would 
be a revolution in this country. We are literally cutting down 
the Appalachian Mountains, these historic landscapes where 
Daniel Boone and Davey Crockett roamed. The Appalachians, 
Chairman, were a refuge during the place of the Ice Age 20,000, 
12,000 years ago, when where I live and where Congressman Hall 
at the district that he represents was under 2 miles of ice at 
that time. And the rest of North America turned into a tundra 
where there was no forests.
    And the last refuge for those forests was the Appalachian 
Mountains. And when the tundras withdrew when the glaciers 
withdraw all of North America was reseeded from the seed stock 
in those forests. So it is the mother forest of all of North 
America. And that is why it is the most diverse and abundant 
for tempered forests in the world, because it is the longest 
living. And today, these mining companies with the help of 
their indentured servants in the White House are doing what the 
glaciers couldn't accomplish, what the Pleistocene ice age 
couldn't accomplish, which is to flatten the Appalachian 
Mountains and destroy those forests.
    They are using these giant machines called drag lines which 
are 22 stories high. I flew under one of them in a Piper Cub. 
They cost half a billion dollars, and they practically dispense 
with the need for human labor, which indeed is the point. When 
my father was fighting strip mining in Appalachia back in the 
1960s I remember a conversation that I had with him when I was 
14 years old where he said to me, they are not just destroying 
the environment, they are permanently impoverishing these 
communities because there is no way that they will ever be able 
to regenerate an economy from those barren moonscapes that are 
left behind. And he said, they are doing it so they can break 
the unions.
    And that is exactly what happened. When he told me that 
there were 140,000 unionized mine workers in West Virginia 
digging coal out of tunnels in the ground. Today there are 
fewer than 11,000 miners left in the State. Very few of them 
are unionized because the strip industry isn't. They are taking 
more coal out of West Virginia than they were in 1968. The 
difference is back then at least some of that money was being 
left in the State for salaries and pensions and reinvestment in 
those communities. Today virtually all of it is leaving the 
State and going straight up to Wall Street to the big banking 
houses--well, to the corporate headquarters of Arch Coal, 
Massey Coal and PV Coal, mainly Massey Coal, and then to the 
big banking houses like Bank of America and Morgan which own 
these operations.
    Ninety-five percent of the coal in West Virginia is owned 
by out-of-State interest, which are liquidating the State cash 
literally, using these giant machines and 2,500 tons of 
explosives that they detonate every day in West Virginia. The 
power of a Hiroshima bomb once a week. They are blowing the 
tops off the mountains to get at the coal seams beneath. Then 
they take these giant machines and they scrape the rock and 
debris and rubble into the hollows and into the adjacent river 
valleys. They flatten out the landscapes, they flatten out the 
valleys, they have already flattened 400,000 acres of the 
Appalachian Mountains. By the time they get done within a 
decade, if this rule goes through and we don't, and you don't 
succeed in getting rid of it, they will have flattened 2,200 
miles, an area the size of Delaware. According to EPA, they 
have already buried 1,200 miles of America's rivers and 
streams, these critical headwater streams that are critical to 
the hydrology and to the water quality and to the abundance of 
the wildlife and the forests of those regions.
    It is all illegal. You cannot, in the United States, under 
the Clean Water Act, dump rock, debris and rubble into a 
waterway without a Clean Water Act permit, and you can never 
get such a permit. So in talking with the Commonwealth, my good 
friend, Joe Lovitt, sued the companies in Federal Court in 
front of a conservative Republican Federal judge, Judge Charles 
Hayden. And Judge Hayden, during that hearing, I want to tell 
you this, he said to the Corps of Engineers colonel who was 
there to testify, he said, you know this is illegal, it says so 
in the Clean Water Act, how did you happen to start writing 
these permits to allow these companies to break the law and 
engage in this criminal activity?
    And he said, quote--the colonel answered him and said, 
quote, unquote, ``I don't know, your Honor, we just kind of 
oozed into it.'' And Judge Hayden, at the end of that hearing, 
declared--said exactly what I just said, it is all illegal, it 
has been illegal since day one, and he enjoined all mountaintop 
mining. Two days from when we got that decision, lobbyists from 
PB Coal and Massey Coal met in the back door of the Interior 
Department with Gale Norton's first deputy chief, Steven J. 
Griles, who was a former lobbyist for those companies, and 
together they rewrote the interpretation of one word of the 
Clean Water Act, the definition of the word fill, to change 30 
years of statutory interpretation and make it legal as it is 
today, not just in West Virginia, but in every State in this 
country, to dump rock, debris, rubble, garbage, any solid 
material into any waterway of the United States without a Clean 
Water Act permit. All you need today, according to the 
administration, is a rubber stamp permit from the Corps of 
Engineers, which, in some districts, you can get over the 
telephone or through the mail.
    Now, the last vestige of protection that we had in West 
Virginia was a stream buffer zone law that was upheld also by 
Judge Charles Hayden, which said that you can't do this if you 
are within 100 feet of a stream. Well, this is the law today 
that this administration is trying to get rid of before it 
leaves office to make it so there is absolutely no way, there 
is not a single obstacle or impediment for these companies 
coming and just flattening the entire Appalachian chain.
    Now, I think I have run out of time for my prepared 
statement. I wanted to talk about CAFOs because they are even 
worse, but you have my testimony here.
    [The statement of Mr. Kennedy follows:]



    
    The Chairman. And I think you are going to have plenty of 
time and interest in the members continuing this discussion 
with you. We thank you, Mr. Kennedy. I might also note that one 
of the great citizens of the United States is here with us as 
well. Mr. Kennedy's mother, Ethel Kennedy, is sitting out here 
as well in this hearing. So let me now turn and recognize our 
second witness, Ms. Jamie Rappaport Clark, who is executive 
vice president for Defenders of Wildlife. She has spent 20 
years in government service, primarily with the U.S. Fish and 
Wildlife Service where she served as director from 1977 to 
2001. During her tenure as director, we added 2 million acres 
to the National Wildlife Refuge system and established 27 new 
wildlife refuges. Welcome Ms. Clark. Whenever you are ready, 
please begin.

               STATEMENT OF JAMIE RAPPAPORT CLARK

    Ms. Clark. Thank you, Mr. Chairman. And I am delighted to 
be here this morning. Members of the committee, I appreciate 
your support. It is hard to follow the eloquent testimony of 
Mr. Kennedy. But what I will add to that is just the sheer 
frustration of the last 8 years. As you mentioned, I was a 
public servant my entire career up until the day Mr. Bush took 
office. And it is hard to describe what the last 8 years have 
done to my former colleagues trying their hardest to protect 
the environment and our natural resources over these years. 
They are demoralized and have really hit their limit. So I am 
delighted to see this oversight.
    I also appreciate the opportunity to shed some light on 
efforts by this administration to dismantle longstanding 
regulations and policies that protect endangered species in our 
cherished public lands. In its waning days, this administration 
is carrying out a calculated strategy to undo decades, decades 
of commitment to natural resources conservation when it has 
nothing more to lose and it can largely escape the scrutiny of 
this Congress and the general public. I am going to highlight 
just a few, there are plenty, but a few of the most damaging 
regulatory assaults this morning.
    First, as was mentioned, is the rewrite of the section 7 
regulations under the Endangered Species Act that implement 
inter-agency consultation proposed last August. The 
consultation regulations are the absolute heart of the 
Endangered Species Act. But the administration is on the verge 
of allowing any Federal agency to avoid consultation if the 
agency unilaterally decides that an action it sponsors is not 
anticipated to result and take of illicit species, and its 
other effects are insignificant or unlikely not defined.
    Now this might sound reasonable. I have been at this for 
many years on the ESA. And this notion that the government 
agencies can evaluate their own actions sure sounds reasonable. 
Why have consultation, if there is no effects? Sounds 
bureaucratic. But figuring out whether an action will cause 
take or other effects often is the issue at hand, and why we 
have an inter-agency consultation process. It is a very 
difficult and complex evaluation. On many occasions, the 
question of whether take will occur is not readily apparent. It 
requires an in-depth knowledge of the species' behavior, 
biology and extent throughout its entire range, just not in the 
area of the project.
    Current rules allow Federal agencies to decide whether 
there will be adverse effects from their actions today, but the 
agencies must obtain the concurrence from the experts at the 
Fish and Wildlife Service at the National Fishery Service. 
Under this administration's proposal, however independent 
species experts at one of the services no longer are in the 
review loop. They no longer review Federal agency judgments 
about the effects of actions that it sponsors, clearly allowing 
the fox to guard the chicken coop. This administration is also 
proposing to drastically narrow the consideration of Federal 
agency impacts even when consultation does occur.
    There will be no review of Federal agencies that contribute 
to affect other species, even if it is substantial impacts if 
the effects would still occur to some extent without the 
action. Even though scientific evidence builds every day the 
greenhouse gas pollution is a significant cause of adverse 
effects on wildlife the proposed rules would make it nearly 
impossible to consider these impacts on species, such as the 
polar bear that we all know is threatened by global warming.
    The Congress should act promptly to stop this dismantling 
of section 7 consultation. If legislation isn't successful by 
stopping the proposed rule, the incoming administration of 
President-elect Obama should prevent it from going into effect, 
if possible. Or take steps to minimize its effect while undoing 
the regulations finalized in the last days. Second, is this 
administration's repackaged effort to prematurely delist the 
gray wolf in the Northern Rocky Mountains, one of this 
country's most amazing and successful species recovery efforts 
of the last century.
    Although two separate Federal Court decisions have cast 
doubt on the Bush administration's delisting efforts due to 
concerns about genetic isolation and the adequacy of State 
management plans that hasn't kept this crowd from still trying 
to push its same failed delisting rule out the door before they 
leave office next month. Congress should act while it can to 
stop the proposed delisting of the gray wolf from going 
forward. Undermining one of the great conservation achievements 
of the last century should not be allowed at the 11\1/2\ hour.
    The incoming administration should be given the opportunity 
to address the inadequacies of this current rule, hold together 
all the stakeholders involved, develop a science based 
management plan that will guide recovery and address the 
concerns of both people and wolves. Third, is the Bush 
administration's abusive regulations to minimize protection for 
the polar bear. Last May compelled by a hearing held by you, 
Mr. Chairman, in the face of insurmountable scientific evidence 
indicating that polar bears in the United States face 
extinction by mid century in our lifetime due to global 
warming, the administration finally, after much delay, listed 
the polar bear as a threatened species.
    We had about a nanosecond to cheer when we realized that 
they lost no time in making sure that the listing would not 
result in any greater protection for the species by issuing 
concurrently a so-called section 4(d) rule under the Endangered 
Species Act with no notice and no opportunity for public 
comment. In my Federal career I have never seen that happen. 
The Bush administration has been unbelievable. They argue that 
other laws and international treaties make the Endangered 
Species Act protection superfluous.
    In other words, business as usual is good enough for the 
polar bear. If that were true, of course, then the polar bear 
wouldn't have needed the Endangered Species Act protections in 
the first place. The incoming Obama administration should 
rescind the illegal 4(d) rule and replace it with a rule that 
actually improves the polar bear's chances of actually 
surviving and recovering. And finally, Mr. Chairman, the Bush 
administration has launched an incredible assault of last 
minute rulemakings on our public lands, and we could go on and 
on and on about that, including efforts that threaten our 
national parks and fast tracking of oil shale development that 
fails to protect people, our wildlife and the U.S. Treasury.
    The Bush administration's assault on our Nation's 
stewardship of endangered species and public lands presents 
challenges of unprecedented magnitude and scope for Congress 
and the incoming administration of President-elect Obama. We 
look forward to working with you under your leadership to 
restore our commitment to protection of these magnificent and 
irreplaceable natural resources. Thank you.
    [The statement of Ms. Clark follows:]



    
    The Chairman. Thank you, Ms. Clark, very much. Our next 
witness is Mr. Jeffrey Holmstead. He is a partner at Bracewell 
and Giuliani. Previously, Mr. Holmstead served at the 
Environmental Protection Agency as assistant administrator for 
air and radiation. Prior to that, Mr. Holmstead was a partner 
at Latham and Watkins and served as associate counsel for 
President George H. W. Bush from 1989 to 1993. Welcome Mr. 
Holmstead. Whenever you are ready please begin.

               STATEMENT OF JEFFREY R. HOLMSTEAD

    Mr. Holmstead. Thank you, Mr. Chairman. I appreciate the 
chance to be here again today. And I always appreciate the 
opportunity to shed a little light on some of these issues. As 
you noted, my expertise is primarily in air pollution issues. 
And I am going to depart from my written statement. If I could 
just make a couple of points that I think should be interesting 
to everybody on this panel and folks up there as well. I always 
find these hearings interesting because of the failure to look 
at kind of the actual data that are out there. You and others 
on this panel have accused the Bush administration of 
eviscerating the Clean Water Act. I was amused to see your 
report about the radical anti-environmental agenda of the Bush 
administration.
    And so my question is this: How is it that air quality 
throughout the county is so much better today than it was 8 
years ago. How is it that pollution is down significantly 
compared to 8 years ago. The fact of the matter is the Bush 
administration, at least in the areas that I know, has tried to 
achieve our environmental goals in the most sensible cost 
effective way. And we haven't always been successful, and there 
are some things that I certainly wish we could have 
accomplished that we were not able to. But last night on the 
computer, as I was thinking about this hearing, I looked up on 
the EPA Web site where they actually track emissions, and these 
are actual emissions from coal-fired power plants, and I know 
my friend John Walke cares about those, Mr. Kennedy does as 
well.
    Eight years ago, SO2 emissions from coal-fired 
power plants were just a little over 13 million tons a year. 
Last year, the last year for which we have emissions 
measurements, those are now below 9 million tons a year. So 
that is roughly a 35 percent reduction. The reduction in 
NOX emissions is even greater. In 1999, the 
emissions were about 2.4, I am sorry, 5.5 million tons of 
NOX, and last year they were 3.5 million. There are 
legitimate kind of regulatory policy questions. You may have a 
different view of the way we ought to do things, whether it is 
through aggressive enforcement or whether it is sort of through 
more effective regulatory programs. But the fact of the matter 
is the air is cleaner today in the United States because of 
actions taken by the first Bush administration, the Clinton 
administration and this Bush administration. It is an ongoing 
legacy that we all should be proud of.
    And the other thing that I would like to mention is EPA 
does careful analysis, and there is what 17,000 employees and a 
handful of political appointees, and most of the folks there 
are career staff who are dedicated public servants. They did an 
analysis of the most important health protections achieved by 
EPA in its history, and they found three rules that were 
substantially more--that were far and away the most important 
rules that EPA has ever done. Number one was the phase down of 
lead in gasoline which took place back in the 1970s, 1980s.
    Number two was the Clean Air Interstate Rule which is now 
kind of in legal limbo because of a court case. But the second 
most important rule in terms of improving public health was 
issued under this administration, and the third was also issued 
under this administration, having to do with reducing diesel 
emissions. So again, I am entertained by some of the comments 
that have been made, but I find them troubling insofar as they 
are completely devoid of what has actually happened out there.
    So I know that there is a lot more force covered now in the 
U.S. than there was 20, 30 years ago. I am not an expert on 
public lands. I know something about the Endangered Species 
Act. And I just think it is a little disingenuous to suggest 
that the Endangered Species Act is the tool that anybody 
intended to deal with climate change. Climate change is an 
important issue. We have got to think about how to deal with 
it. But the way to deal with it is not by doing an Endangered 
Species Act consultation on hundreds of individual projects 
which collectively have less than a trivial impact on 
CO2 emissions.
    Let's talk about the best way to achieve our goals instead 
of somehow suggesting that there is a calculated effort here by 
the Bush administration which has really made a lot of progress 
on all these environmental issues. Now, I can't see the clock. 
I may be well past my time already. But rather than talking 
about midnight regulations, let's talk about individual 
specific issues and what is the best way to achieve the 
objectives that I think we all share. Thank you very much and I 
really would be quite happy to answer any questions that 
anybody has.
    The Chairman. Thank you, Mr. Holmstead, very much.
    [The statement of Mr. Holmstead follows:]



    
    The Chairman. And our final witness, Mr. John Walke, is the 
Clean Air Director at Natural Resources Defense Council. He, 
prior to joining the NRDC, Mr. Walke served at the 
Environmental Protection Agency where he helped implement the 
Clean Air Act. Mr. Walke is one of the preeminent experts on 
clean air issues in our country. We welcome you, sir. Whenever 
you are ready, please begin.

                   STATEMENT OF JOHN D. WALKE

    Mr. Walke. Thank you, Chairman Markey and members of the 
committee. I am pleased to appear before the committee for this 
important hearing. I am even more pleased that two harmful air 
pollution rules I addressed at length in my written testimony 
were abruptly abandoned by EPA yesterday, which renders nearly 
all of my written testimony moot, so I look forward to 
questions from the committee.
    In all seriousness, though, let me first answer Jeff's 
question. How is it that the air is cleaner today? 
Fundamentally, because of steps taken by the Clinton 
administration and the first Bush administration, and even 
before that the Reagan administration, it is important to 
recognize something about clean air laws and rules in this 
country. There is basically an 8- to 10-year lag time between 
the time a rule is adopted and the time that the effects of a 
rule are felt.
    So important rules like the acid rain program passed by 
this Congress in 1990, the NOX SIP Call passed by 
the Clinton administration in the late 1990s are bearing fruit 
today and are responsible for the reductions that Mr. Holmstead 
mentioned. The rules adopted by the Bush administration are 
not. The diesel rule that they adopted, a positive rule, based 
upon successes they inherited from the Clinton administration 
and continued with the fine professional staff at EPA, and they 
deserve credit for that, the compliance states for that rule 
will not occur, by and large, to achieve their measurable 
meaningful reductions until after they leave office.
    The Clean Air Interstate rule, which was struck down in 
court, had compliance dates of 2010 and 2015. Their mercury 
rule 2010, 2015, clear skies 2018. Again, there is a lag time 
and we will enjoy some of the benefits of their diesel rule, 
but thankfully will not enjoy the disbenefits of the rules that 
were struck down in court. Abandoning the two rules that were 
announced yesterday was the right thing to do. The power plant 
rule would have resulted in enormous emissions increase of smog 
and soot pollution.
    Mr. Holmstead. John, how can you say that? That is just not 
true.
    Mr. Walke. I thought I was testifying now, but if you would 
like to testify again.
    The Chairman. There will be plenty of time.
    Mr. Holmstead. Very good. I look forward to that.
    Mr. Walke. EPA's rulemaking record itself projected that 
the rule would have increased pollution in entire counties 
throughout states like Indiana, Tennessee, Michigan, Arizona, 
Georgia, Ohio, Wisconsin, Pennsylvania, New York, Illinois and 
others. I took that from EPA's own projections. As the chairman 
mentioned in his opening statement, EPA projected in a letter 
to Congressman Waxman that the rule would have allowed a carbon 
dioxide emissions increase of 74 million tons per year. That is 
roughly equivalent to the total annual CO2 emissions 
of about 14 average coal-fired power plants or the annual 
emissions from 50 million vehicles.
    There are about 250 million vehicles in this country. That 
is one-fifth of the total U.S. population. Adding 74 million 
tons of CO2 to the atmosphere each year would nearly 
double the amount that EPA removes under its voluntary Energy 
Star program. These were enormous emissions increases, and it 
is a very good thing that the rule was abandoned. The EPA 
yesterday acknowledged in scrapping these two highly 
controversial air pollution rules that they were classic 
midnight regulations and that EPA would not issue them for that 
reason. You can look at today's Washington Post and New York 
Times articles.
    I welcome those explanations, but at the same time, we 
should recognize that they are deeply questionable 
explanations. On the very same day the EPA scrapped these two 
rules it issued, guess what, a midnight deregulation weakening 
a Clean Air Act rule governing emissions from factory farms and 
mines. The question of midnight regulations is unfortunately 
one that is not going away despite announcements like 
yesterday. With permission of the chairman, I would like to 
enter into the record a 60-page document prepared by EPA, it is 
an internal document that I obtained, and I don't believe has 
been publicly released before. But it contains EPA's own list 
of rules that they plan to adopt in 60 days from the 
Environmental Protection Agency. It is startling the number of 
days--the number of rules that will be issued and signed in 
December and January according to this own list.
    So I commend it to the Committee's attention. EPA will 
issue controversial rules and harmful rules under the Clean Air 
Act by January 20th. They have told us they will do so. One, 
for example, will allow increased emissions from chemical 
plants, oil refineries, pharmaceutical plants and the like that 
have multiple uses of equipment. They also issued a rule just 
last month actually that will reduce the number of lead 
monitors that should be required in this country. After the 
rule was directly overruled by the White House less than 24 
hours before the rule's signature, it prohibited EPA from 
monitoring lead emissions from facilities that emit more than 
1,000 pounds per year of lead.
    Instead, the White House allowed EPA only to monitor 
facilities emissions emitting more than 2,000 pounds of lead 
resulting in more than 200 lead polluters nationwide that will 
now go unmonitored. This will affect residents in Indiana, 
Michigan, Pennsylvania, Ohio, New York, Texas and Minnesota 
that will not have the benefit of lead monitors downwind of 
cement plants, oil refineries or lead smelters in their 
communities thanks to this irresponsible White House 
intervention.
    In conclusion I will just note that the Obama 
administration already has a lot to do to clean up air 
pollution and global warming pollution from power plants. We 
really should not saddle them with the additional insult and 
injury of these midnight regulations. Thank you.
    The Chairman. Thank you, Mr. Walke, very much.
    [The statement of Mr. Walke follows:]



    
    The Chairman. So let's have a little discussion then, 
because some have asserted that the Bush administration's 
midnight regulations are not really rushed and they are not 
really secretive. And that is a contention which is being made 
and that they are being properly implemented with all 
deliberation and proper review. Mr. Kennedy, could you respond 
to this assertion that they are, in fact, going through a 
proper regulatory process in their destruction of these rules.
    Mr. Kennedy. There are many, many examples. I mean, 
normally, regulations, what the Bush administration has even 
said in the past in a court case over power plant regulations 
that I argued. We recently had Bush administration attorneys 
argue that it takes 8 years to pass a regulation.
    These regulations, many of them in many, many of these 
instances, I mean, John Walke is just--I mean, this is actually 
a very heavy document that appears to have hundreds of rules in 
it, there is supposed to be notice and comment, there is 
supposed to be an opportunity for the public to comment on 
these rules to participate in the regulatory process, and I 
just don't see how it is possible to issue--the public doesn't 
even know this at this point. So this is--for the 
administration to claim that these are going through a normal 
regulatory process is just, is specious.
    The Chairman. Let me go to Mr. Walke and then we will go to 
you, Mr. Holmstead. Mr. Walke.
    Mr. Walke. Chairman Markey, there is one easy task to 
determine whether a rule is being rushed or not. And that is 
when and whether the rule has been lodged for review at the 
White House. The Office of Management and Budget has either a 
60- or a 90-day review period under executive order to look at 
final rules. And before I came, I looked at the OMB Web site 
and many, many of these rules, including ones that we know will 
be adopted by January 20th, have not even been sent over to the 
White House. They are not going to have their normal review, 
they are going to have a review that is by definition rushed.
    Now, that is a classic definition of midnight regulation to 
me. They are hurrying up these rules. The reason the rules were 
scrapped yesterday is not because they passed the November 1st 
deadline in the Josh Bolten memo as the White House is now 
claiming. Count the number of rules that have been issued since 
November 1st. There are many. By their own standard, they 
should not issue any more rules for the rest of the 
administration. Because as they said in The Post today, that 
would be a midnight regulation. They will not meet that test. 
This list proves it. And there are rules that the White House 
is looking at now that are going to be jammed out by the 20th.
    The Chairman. Mr. Holmstead what do you have to say about 
that.
    Mr. Holmstead. All I know is that EPA follows the 
Administrative Procedures Act. John is incorrect in saying that 
all these rules go through OMB review. Most of them don't 
because OMB only reviews rules that are considered to be 
significant rules. And there is an ongoing discussion between 
OMB and many agencies. Look, it is a historical fact that near 
the end of every administration, there is a lot of things that 
get done because people respond to deadlines. All of the issues 
that I know about have been in the regulatory process for 
years, right? And they have to go through a common period, and 
the ones that John doesn't like have been out for public 
comment. And so the question is, is there something nefarious 
about trying to clean up the issues that you have been working 
on for years.
    Now, I don't have privy to this particular list, and so I 
am a little surprised to hear that John and Mr. Kennedy both 
accusing the administration of violating the law. You would 
have to look at each one of these and say okay, was this a rule 
that went out for notice and comment? Is it a rule that 
qualifies as a significant rule? But the idea, and again, there 
are several articles that I refer to in my written testimony 
where there is a natural tendency in our system for every 
administration to try to finish its work before it leaves 
office.
    The record is held by the way by the Clinton 
administration, in terms of number of regulations or pages. The 
second most is the Carter administration. We will see how this 
administration ends up, but there is always a slug of things 
that people are trying to finish up before they leave office. 
But if they don't the follow proper procedures they are clearly 
illegal.
    The Chairman. So we will come back to you, Mr. Walke, and 
Mr. Kennedy. What do you have to say to Mr. Holmstead?
    Mr. Walke. Well, the Bush administration significantly 
expanded review by OMB down to guidance documents that they 
look at that don't meet anyone's definition of significant or 
impacts of $100 million or more. So they have been very 
selective in how they follow their own rules. But I think it is 
clear that these rules will be pushed out. And I should say, 
the rules in this list, as far as I can tell, have undergone 
public review and notice and comment.
    But that would be true of any midnight deregulation as well 
by definition unless they were flagrantly violating the EPA as 
Jeff said. But that still doesn't obviate the fact that these 
are harmful midnight deregulations that they will----
    Mr. Holmstead. But how can you say that without looking at 
the regulation and seeing what it says?
    Mr. Kennedy. I have looked at the clean air regulations.
    Mr. Holmstead. There is that long list. You have got to 
look at the regulations and say is this a good one or is this a 
bad one.
    Mr. Kennedy. That is why it is being entered into the 
record.
    Mr. Holmstead. Good.
    The Chairman. Mr. Kennedy, do you have any comment you 
would like to add at this point.
    Mr. Kennedy. I think Mr. Walke has covered it.
    The Chairman. Great. Thank you. My time has expired. We 
will turn and recognize the gentleman from Missouri, Mr. 
Cleaver.
    Mr. Cleaver. Thank you, Mr. Chairman. I am sure that all 
the administrations are trying to finish up their agenda. I 
don't think that is any different. Do you think there has been 
this much activity by past Presidents, whether they were 
Democratic or Republican, with regard to the environment? Mr. 
Holmstead.
    Mr. Holmstead. You know, I am not sure. And the studies 
that have been done are not entirely satisfactory because they 
just look at the number of pages in the Federal Register that 
were issued during the last three months, so I honestly don't 
know the answer to that. But as you mentioned it is really 
quite clear that we all respond to deadlines and we know we are 
running out of time and we try to get our work done.
    So I know that there was a number of things done by the EPA 
right before the Clinton administration. And because of a 
concern about midnight regs when I got there one of the first 
things we did was review all the midnight regs. And what we 
discovered is that they had done a darn good job, with only one 
exception. There was one thing that we thought was done 
improperly. But a lot of these things were very controversial.
    Mr. Cleaver. With regard to environment?
    Mr. Holmstead. Yes, these were all environmental. But we 
looked at some controversial rules and we decided the Clinton 
administration had done the right thing, even though they 
issued the rules on the last week of the administration.
    Mr. Cleaver. Let me ask the other three witnesses, 
beginning with Ms. Clark. The Obama administration will take 
office on the 20th. Of the midnight rulings that you have seen, 
and those, Mr. Walke, in your testimony are the most egregious 
and that the Obama administration will need to move quickly to 
either reverse or halt. What have you seen thus far that you 
think would require as rapid a response as possible.
    Ms. Clark. I will start. Certainly the attempts to 
undermine the Endangered Species Act. What this administration 
has failed to do legislatively, and goodness they have tried, 
they have been quite persistent over the last 8 years, they 
failed to do it legislatively, they have tried to now 
accomplish administratively in the eleventh hour. So the 
section 7 regs have got to be overturned or thwarted. Clearly, 
regulations that impact or really undermine chances of survival 
for species we care deeply about, like the gray wolf, the polar 
bear, will need to be addressed.
    And then there is a whole host of public lands. This recent 
oil shale regulation that is devastating to over 11 million 
acres of land in Colorado, Utah and Wyoming. BLM, the Bureau of 
Land Management, has been particularly hard hit by this 
administration's zeal to pay homage to their industry friends. 
And that whole agency deserves a look. There are a lot of 
regulations being finalized against the wishes of governors 
even in the west that will need to be addressed right out of 
the box.
    Mr. Kennedy. Well, number one on my list would be the 
mountaintop removal that I talked about, the 100-foot stream 
buffer zone. Because the damage that will be caused as a result 
of--that will be allowed as a result of that rule will be 
welcome quick and it will be irreparable and it will be 
monumental literally destroying entire mountain ranges. Already 
460 of the largest mountains in West Virginia have been taken 
down and are just holes in the ground. You can actually go to 
Google Earth and go to the home page and type in your zip code 
and you can look at the mountain that has been removed in order 
to heat your home. This will move the final restraints on that 
practice.
    So I would say that that would be number one on my list. 
The factory farming regulations removing the efforts by the 
administration to remove factory farms from not only the Clean 
Water Act but also from CERCLA and EPCRA which regulate the air 
discharges from those facilities. But as you know, these are 
facilities that over the past 20-years farming has been 
transformed in this country and taken off the farms by a few 
large corporations which shoehorn millions of chickens into 
tiny cages where they literally can't turn around and then dose 
them with hormones and arsenic so that they literally lay their 
guts out over a short miserable life.
    Hundreds of thousands of hogs are put into warehouses, 
again in tiny cages, where they produce millions of tons of 
waste. A hog produces ten times the amount of waste as a human 
being. So a facility with 100,000 hogs produces the same amount 
of fecal waste as a city of a million people. Well, the waste 
is as virulent and obnoxious and as dangerous as human waste 
and it should be regulated by the Clean Water Act, and under 
the law it was. But this administration has removed it from 
that regulation so that these big corporations could simply 
dump the waste into the waters or onto the land.
    And there was--the Bush administration, for 8 years, has 
been trying to completely remove all legal restraints on these 
practices. And this final regulation will, in fact, do that. So 
I would say that the regulations on factory farms are probably 
some of the worst.
    Mr. Walke. Congressman, I would mention just two air 
pollution regulations. One recently in which EPA rejected the 
unanimous advice of its scientific advisors to weaken the 
health standards that govern smog pollution, our protections 
against smog pollution; EPA rejected those unanimous scientific 
recommendations when it adopted the ozone standard. And 
secondly a rule that we expect to be issued by the end of the 
term that I refer to in my written testimony in which EPA will 
create essentially a loophole in accounting gimmicks to allow 
oil refineries and chemical plants to pollute more under the 
Clean Air Act, carcinogens and smog and soot pollution.
    Mr. Cleaver. Thank you, Mr. Chairman.
    I yield back.
    The Chairman. The gentleman's time has expired.
    The Chair recognizes the gentleman from New York, Mr. Hall.
    Mr. Hall. Thank you, Mr. Chairman.
    Ms. Clark, in the rules that you have seen issued or 
cancelled or in any actions that you would have noticed over 
the last 8 years, has there been any effective regulation that 
you have seen that may help the overfishing and the 
depopulation of the fisheries of the northeast, something that 
has been written about a lot lately?
    Ms. Clark. Unfortunately, not to my knowledge. And, in 
fact, the undermining of the Endangered Species Act changes 
that they have underway will potentially harm all listed 
species, 1,400 listed species, and those that are trending 
towards imperilment as well. So for those species that are in 
trouble in the ocean environment and may, in fact, deserve 
protection of the Endangered Species Act, this regulation will 
certainly hurt them. So I expect that the way that this 
government has gone about managing imperiled species will 
certainly result in more species being imperiled than less.
    Mr. Hall. And in your opinion, Ms. Clark, could the Fish 
and Wildlife Service have possibly adequately reviewed the 
300,000 public comments on the administration's proposed 
Section 7 rule in the time they allotted for that work?
    Ms. Clark. Absolutely not. Because I know enough about a 
number of the comments, including many from this body, that 
were quite substantive in nature and to see from a career 
official this all-hands-on-deck call that went across the 
agency in an e-mail calling for anybody and anybody to come in 
from Tuesday through Friday to work 8 hours a day to analyze 
the almost 300,000 comments to then forward onto the Department 
of the Interior's Solicitor's Office, there is no way they 
could do much more than stack them in categories.
    What was also, though, significant about that e-mail and 
about the way the process was handled is indicative of what has 
happened in this administration, and that is, they have totally 
taken away the opinion--or disregarded is maybe another word--
disregarded the opinion of the career biologist and in essence 
have totally politicized implementation of environmental law. 
So they in essence asked Section 7 biologists, experts on the 
law to come to town, and in fact, they couldn't get enough of 
them. So they brought them from the Park Service and other 
agencies and said, okay, stack the comments so that you can 
then forward them to the Solicitor's Office where they will be 
reviewed and analyzed for policy response. That just didn't 
happen in my entire time in government. We had a very collegial 
relationship with the lawyers in the Solicitor's Office, but 
they didn't unilaterally make policy without biological 
understanding of the impacts of implementation of law.
    Mr. Hall. Thank you.
    Mr. Kennedy, I was wondering, have you seen or heard of any 
attempts or any machines being built to remediate the removal 
of mountain tops to try to restore the topography as it 
previously was, and have you any idea how expensive that would 
be?
    Mr. Kennedy. The law says that once the mountains are moved 
and the coal has been extracted, that the company then has to 
restore the mountain top to its natural state and the soils to 
their natural state. They have to take the soils and put them 
back on and reclaim the area. But I have actually been on the 
reclaimed mountain tops. And what happened is at the State 
agency, which is a classic captured agency that is basically 
just a hand puppet for the regulated industry, along with the 
Office of Surface Mining and EPA under the Bush administration 
have approved an interpretation of the law to say that rock is 
the equivalent of soil, so that instead of putting soil on the 
mountain top, they can put rock on the mountain tops. And so 
they just take the rock and put it back. And when you walk on 
it, you are just walking on a huge rock pile where nothing can 
grow. There is some little kind of an exotic grass and some 
lichens that can grow on it. But these were areas that had some 
of the finest tempered forests on earth, and you will never see 
those forests again, ever, until we have another ice age.
    That is the kind of the level of deception, of public 
deception and the manipulation of these laws that we have seen 
unprecedented come out of the Bush administration. And the 
people who dream up these schemes are so venal and mendacious 
and dishonest because the law is there that says you have to 
grow the forest back. Everybody knows it. Everybody can read 
that law. And yet you have a conspiracy among these regulatory 
officials who, you know, who are basically just, as I said, 
indentured servants for the lobbying groups and for the 
industries that they regulated. And they come in there and 
plunder our natural resources and plunder the best of our 
country.
    I say one other thing just in answer to your earlier 
question. We just argued this week against EPA a case in the 
Supreme Court in which the Bush administration is trying to 
remove all regulations or weaken the regulations for fish kills 
at power plants. Now, power plants are the single greatest 
killer of fish in the oceans. The East Coast power plants by 
their own records kill a trillion fish a year on their intake 
screens, a trillion fish a year on their intake screens. There 
is a single power plant, the Salem Nuclear Plant in the 
Delaware River, that sucks up the entire fresh water flow of 
the Delaware every day. And it literally combs the life out of 
it. Martin Marietta, which is the company that put the man on 
the moon, that was hired by Salem Nuclear Power Plant to do its 
fish kill studies said that that plant alone kills 175 billion 
bay anchovies every year, 165 billion weakfish every year. And 
it stopped counting after that and said this is going to cause 
the crash of all the fish in the Delaware Estuary System which, 
in fact, happened.
    And so these power plants, you know, more than the 
commercial fishery, are impacting huge, huge, mortalities on 
our oceangoing fish, and the Bush administration is doing 
everything in its power to try to fight the regulations that 
would require these plants to install the best available 
technology for preserving fish.
    Mr. Hall. Thank you.
    I will just, if I may, just wrap up by saying, in response 
to comments by Mr. Holmstead and Mr. Walke, that in New York, 
first of all, the last couple of summers we have had hot 
spells, extended heat spells where the entire State has been 
under an air quality alert. Now, I remember--I have grown up in 
Elmira and spent most of my life in the Hudson Valley. And I 
remember many times having cities be under an air quality 
alert, the City of Poughkeepsie, the City of Peekskill, the 
City of New York, Albany, what have you. But having the farm 
land and the forest land and the Adirondacks, the entire State, 
be under an air quality alert where people with asthma or 
respiratory problems, the elderly and the young are told to 
stay indoors--not in specific cities, but in the entire State--
to me that has only happened in the last couple of years, and 
it is inconsistent with a statement that air quality is better. 
I realize that is not a scientific sample of the entire 
country, but it is an experience that this State has had.
    And lastly, regarding whether or not this is intentional 
and systematic, you know, responding once again to you, Mr. 
Holmstead and those who say that this is somehow different, we 
had the administrator of EPA sit here on the 1-year anniversary 
of the Supreme Court decision in Mass. V. EPA and refuse to 
give us the internal documents that the staff at EPA had been 
working on. And we were unanimously, both sides of the aisle, 
forced to vote for a subpoena for those documents because the 
administration, as they do with the VA and as they do with the 
Justice Department and as they do across all branches of the 
executive, refused to produce documents for our oversight. So I 
do believe it is systematic, and I am looking forward to 
working with a more legal administration and one that believes 
in the law and in the Constitution and checks and balances.
    And I yield back.
    The Chairman. The gentleman's time has expired.
    The Chair recognizes the gentleman from Washington, Mr. 
Inslee.
    Mr. Inslee. Thank you.
    Mr. Holmstead, you made a comment in your opening statement 
that you are entertained by some of the statements that were 
made by some of your witnesses, and I want to tell you that 
this was not an entertaining experience for us. Maybe you think 
it is a joyous occasion because it is the last hearing the U.S. 
Congress will hear about the multiple depredations and failures 
of environmental policy by this administration. But it is not 
something that I find entertaining.
    I just find it flabbergasting that you come before us to 
crow about the achievements of this administration, saying that 
pollution is better than when this administration came in. In 
fact, the carbon dioxide levels of the planet have risen 
significantly, which is the number one, most dangerous, most 
threatening pollution. And while that has been occurring, the 
only strategy that the Bush administration has had to deal with 
it is, one, to gut the listing of the polar bear to make sure 
that it really didn't mean anything; it didn't occasion the 
reduction of carbon dioxide. And, number two, the only other 
strategy the administration has had is to be at least partially 
responsible for a major recession that might reduce economic 
activity, which is not the preferred global warming strategy we 
ought to have.
    Now, I am upset about it. I think a lot of people are. I 
got to be a grandfather for the first time about a week and a 
half ago. And If my son lives to the ripe age of 100, 35 
percent of the birds in the world may be endangered; 52 percent 
of the amphibians; and 71 percent of the corals may no longer 
exist. And for 8 years, the Bush administration fiddled while 
the most dangerous gas in the atmosphere increased while the 
Bush administration fiddled around. I would like to think that 
the administration would leave on some note of grace on this 
last hearing during the Bush administration. And I would like 
to give you an opportunity to express some sorrow that this 
administration did not act to deal with this most dangerous 
pollutant to the great disadvantage of our grandkids. And I 
want to give you that opportunity to leave on some note of 
grace.
    Mr. Holmstead. Well, I appreciate your kind invitation, but 
I find your question somewhat disingenuous.
    When I talked about pollution, I was very specific. If you 
look at air quality in New York or your State or anywhere else, 
air quality, as measured by scientists around the country, is 
significantly improved. Now, no one has ever talked about 
CO2 as an air quality issue because it is not 
dangerous to breathe unless you happen to--unless it is at 
levels or orders of magnitude higher than we talk about today.
    It is clear that climate change is a major issue, but don't 
tell me that CO2 is the most dangerous gas we face 
today when there is still people who are dying because of fine 
particle pollution and other things. When it comes to 
CO2 emissions, this administration has done at least 
as well as every other country in the world and at least as 
well as the Clinton administration. The Clinton administration 
said they had authority under the Clean Air Act to regulate 
CO2, they chose not to exercise it very carefully.
    When this administration came in, it has undertaken many 
things to reduce the energy intensity of our economy. And if 
you look at the Europeans, if you look at the Japanese, if you 
look at any other economy since the beginning of this 
administration, they have performed no better than we have. It 
is a huge, huge challenge that we have, sir, but to somehow 
suggest that this administration has failed in its efforts; it 
has spent more time and more effort, and although many other 
countries talk a good story, they have not achieved anything 
either. You know why? It is enormously difficult. I think all 
of us need to be engaged in that opportunity, but it is going 
to take decades and billions and trillions of dollars to reduce 
our emissions of CO2.
    Mr. Inslee. Thank you, Mr. Holmstead.
    I think you have answered my question, which is you do not 
intend to leave on a note of grace, of showing you are sorry--
and I will report to my grandchild when he is at the 
appropriate age that you were proud of your record to watch 
this international global disaster unfold and do nothing about 
it. That is what I will report about your last opportunity.
    I want to ask Ms. Clark and Mr. Kennedy, procedurally, what 
do we need to do to roll back these onerous provisions? How can 
we do that in the quickest, most efficacious way during the 
Obama administration? What do we need to do day one? How do we 
hasten this process?
    Ms. Clark. Well, I will speak as a nonlawyer, as a wildlife 
biologist just to be clear. There are a couple of things. It 
would be, speaking of grace, it would be nice, like they have 
done on the air regulations, for them to decline to finalize 
the Section 7 regulations. That would be a point of grace. And 
for an administration that has touted their desire for an 
orderly transition, that would be incredibly helpful for the 
incoming Secretary of the Interior, because it is a huge issue 
to have to inherit.
    Absent that, and if they do go forward to finalize, know 
that there are a host of environmental groups, conservation 
groups like Defenders of Wildlife that is poised to file suit 
against implementation of the regulations. And so I imagine we 
will be involved in some dialogue. Also there is certainly the 
opportunity for the new administration to issue executive 
orders and in essence dictating how they expect the incoming 
departments to address global warming considerations that 
impact on the environment, including endangered species, while 
they move with due haste to repropose and undo the regulations.
    And just to point it out about these regulations I forgot 
to mention, but it is of interest in the chairman's comment 
earlier on about how we can assert that these are midnight and 
last ditch and a bit over the top, the Section 7 regulations, 
when a bureau wants to issue regulations of this magnitude, 
regulations like Section 7 that affect every discretionary 
action of any Federal agency--so it has wide, broad impact on 
the Federal Government. And I know from personal experience 
that the debate and the hand-wringing and the wrangling that 
goes on in the interagency clearance process, not the least of 
which this regulation ran under the radar screen, didn't show 
up on the dockets that these regs normally show up on, whether 
it is in the Department of Interior or the Office of Management 
and Budget. But I heard from at least three of the bureaus, the 
Department of Agriculture, the Environmental Protection Agency 
and even the Department of Defense that, in essence, they were 
persuaded to, quote, stand down, because what typically happens 
is these bureaus and individual agencies will provide all this 
comment that has to be reconciled before these regs can go 
forward. What, in fact, happened is they were in essence 
ordered to--you know, it is kind of like what your mother says, 
if you can't say something nice, don't say anything at all. And 
because they couldn't agree with these regulations, they said 
nothing.
    So the notion that there was unanimity and everybody agreed 
with these regs in the Federal Government is quite the 
contrary. In fact, you know, Forest Service, Department of 
Defense, EPA is very concerned about now having that 
responsibility unilaterally as well as the accountability unto 
themselves without the expert backup of the wildlife agencies. 
So this issue has got to be fixed for the inherent forward 
movement. And the only time in this administration they really 
got away with this in toto has been on the national fire plan 
for the Bureau of Land Management and the Forest Service to 
implement unilaterally decision-making on fire management and 
fire planning. Albeit late, the Fish and Wildlife Service 
finally got around to monitoring the impact of decisions made 
during this self-consultation process and have now determined 
that over--almost 70 percent of the unilateral decisions made 
by the Forest Service and the BLM on this fire management plan 
implementation have been wrong. And BLM and the Forest Service 
have wildlife experts. Therein lies the problem. So it is a big 
challenge.
    Mr. Inslee. Mr. Kennedy, did you want to add something to 
that?
    Mr. Kennedy. There are three things they should be doing. 
One is, the Obama administration should stay all rules that are 
still pending, and they should prevent publication of those 
rules in the Federal Register, all new rules in the Federal 
Register. That is something that the Bush-Cheney administration 
did beginning the first day of that administration with the 
Clinton administration's last-minute rules.
    Second, the Obama administration should begin talks with 
Congress under the Congressional Review Act. The Congressional 
Review Act as you know is a statute that gives Congress the 
power to review regulations after 100 days and then to--if they 
disapprove of those regulations or believe they are 
inconsistent with the law, the public interest, Congress has 
the power to pass a resolution of disapproval which then the 
President can sign, which effectively vetoes the regulation. 
That is a real choice that I hope you will exercise.
    And then, of course, the Obama administration ought to do 
what--again, take a page from the Bush-Cheney playbook and 
refuse to defend regulations that it doesn't like in court so 
that when environmental groups, when citizens groups, when 
public health groups sue the administration over the 
regulations that we can achieve a regulation that protects 
public health and that protects the environment.
    I just want to make one comment in reaction to some of the 
things that Mr. Holmstead--some of the claims that Mr. 
Holmstead just made. One is that nobody has ever, ever called 
carbon an air quality problem. In fact, that was a pretense 
that the administration has tried to put over on the American 
people for the past 8 years, but NRDC sued the administration, 
won the case in court, in the Supreme Court, and the Supreme 
Court has said, indeed, carbon is a pollutant, a regulated 
pollutant. It was one of the games that they played to try to 
avoid regulation of, as you called, the most dangerous 
pollutant in the world, which is carbon right now.
    I also have to say I was somewhat surprised to hear Mr. 
Holmstead talk about his great concern for the worst pollutant, 
which was ozone and particulates, since the Bush administration 
under his leadership did everything in its power to make sure 
that there was no regulation of ozone and particulates. As you 
know, ozone particulates----
    Mr. Holmstead. I am just puzzled. That is factually 
incorrect.
    Mr. Kennedy. Ozone and particulate emissions were supposed 
to be removed from coal-burning power plants 18 years ago under 
the Clean Air Act. The----
    Mr. Holmstead. I'm sorry, but that is just incorrect. As a 
matter----
    Mr. Kennedy. That is correct.
    Mr. Holmstead. I am sorry, it is not.
    Mr. Kennedy. The Clinton administration, when this 
administration came in--because many of the plants did, 
including in the State of Massachusetts, all of the plants 
installed scrubbing mechanisms to remove the ozone and 
particulates. Other States didn't do that, states where 
corporations can easily dominate the State political 
landscapes. The Clinton administration, there were 400 plants 
that did not remove ozone and particulates. The Clinton 
administration was prosecuting the worst 52 of those plants 
criminally and civilly. They were investigating 200 other 
plants. One of the first things that the Bush administration 
did when it came into office was to order the Justice 
Department and EPA to drop all those lawsuits. As a result, the 
top three enforcers at EPA, Bruce Buckheit, Sylvia Lawrence and 
Eric Schaeffer, all resigned their jobs in protest. These were 
not Democrats. These were people that served under the Bush 
administration and the previous Reagan administration. They 
left their jobs because they were ordered by this 
administration not to do their jobs to reduce ozone and 
particulates.
    Immediately after that, the administration, under Mr. 
Holmstead's leadership, abolished illegally as it turns out, 
because we won the lawsuit after 7 years, the New Source Rule, 
which was the heart and soul of the Clean Air Act, the most 
important provision in that statute. That is the rule that 
required those companies to clean up 18 years ago. So I have 
three sons. I have asthma. One out of every four black children 
in American cities have asthma. One out of every eight kids 
born in this country today have asthma. We have a pediatric 
asthma epidemic. The principal cause of asthma attacks is ozone 
and particulates. A million asthma attacks a year, a million 
lost work days. This is stuff that really hurts our country and 
causes tremendous pain to people. And this administration went 
and abolished those controls, so that all those plants in 
Massachusetts that installed that expensive equipment are now 
at a profound disadvantage in the marketplace, and I am going 
to be able to watch my children gasping for air on bad air days 
because somebody gave money to a politician. And if you go to 
EPA's Web site today, EPA's Web site, not NRDC, you will see 
that that single decision alone by EPA kills and--and by this 
White House--kills 18,000 Americans every year at minimum and 
probably 20,000 a year.
    Mr. Holmstead. Just a second. I can't--I don't know 
anything about mountain-top mining, but I know a lot about the 
Clean Air Act. And maybe we should have a little more polite 
discussion about this. The things that you are saying are 
fabricated. They are not true.
    Mr. Inslee. Mr. Holmstead, if you would like to write a 
letter----
    Mr. Holmstead. I would be happy to, but I think people 
ought to----
    Mr. Inslee. My time has expired. Mr. Holmstead, we will be 
happy to put into the record a letter from you. But my time has 
expired, and thankfully, this administration's time has 
expired. And as my last comment, I look forward to changing and 
closing this book and opening a new one of an administration 
that I hope and do believe will reverse this sorry record and 
bring back the law and the environmental value of this country. 
Thank you.
    The Chairman. The gentleman's time has expired.
    The Chair will recognize himself again for a round of 
questions.
    Let me go to you, Ms. Rappaport Clark. Let's go to the 
environment, to the Endangered Species Act. Let's lay out the 
state of play right now of the Endangered Species Act, what the 
administration is planning, and what would be the impact if 
they were successful, and how difficult it would be, then, for 
the Obama administration to reverse what they are right now 
still presently contemplating. Could you first lay out the 
danger, where are they in the regulatory system and then, what 
are the consequences if they are successful?
    Ms. Clark. Certainly, Mr. Chairman.
    First, over the course of this administration, they have 
had numerous attempts, many caught, thankfully, by you and 
colleagues up here in an oversight capacity, to undermine the 
Endangered Species Act administratively when they couldn't 
accomplish it legislatively. This big issue, though, the 
significant issue underway now, though, is the change, the 
unilateral change to the interagency consultation process, 
which is the heart of the Endangered Species Act. By doing 
that, what they in essence have allowed are agencies to 
unilaterally decide whether or not their activities have 
effect. There is no check and balance. There is a reason for 
the different Federal agencies, and there is a reason that they 
are aligned to follow different yet complementary missions.
    This interagency Section 7 reg cuts out the check and 
balance of the wildlife experts in either the Fish and Wildlife 
Service or the National Fisheries Service, the two agencies set 
up to protect species and habitat in this country. That is not 
to say that there aren't wildlife biologists in other agencies. 
There are, and they are quite competent, but they are often 
challenged by conflicting missions. The Forest Service, the 
BLM, they have multiple-use missions. The Fish and Wildlife 
Service has a wildlife conservation mission.
    So by passing this sweeping change, we will lose the 
ability to monitor the condition of species across the 
landscape because you will have agencies unilaterally kind of 
checker boarding impacts on species themselves and there will 
be no ability to evaluate a species' condition across its 
range. That will affect all 1,400 listed species today and the 
many more ultimately that will deserve protection now as a 
result of implementation of this reg if finalized. So I expect 
it will result in more species being put in jeopardy than less. 
It provides an opportunity to cut corners.
    The other issue it does is it allows the agencies to 
disregard certain effects, and that is how they get at global 
warming. In their zeal to deregulate if you will all of the 
protections afforded the polar bear by finally listing it a 
number of months ago through this 4(d) rule, they in essence 
have excised global warming from consideration. And that is 
just unprecedented. I am not here to say that this Nation's 
consideration of global warming and how to deal with the 
threats of global warming should be borne on the back of the 
Endangered Species Act but I think it is ridiculous to take 
something as scientifically proven as the impacts of global 
warming on species and say disregard it under the Endangered 
Species Act. We didn't do it with invasive species. We didn't 
do it with timber harvesting. We didn't do it with the 
registration of pesticides. How can we unilaterally overturn 
the Intergovernmental Panel on Climate Changes' acknowledgement 
to the impact of global warming on species and say, oh, by the 
way, ESA, leave it alone? That will occur if this regulation is 
passed.
    The Chairman. Thank you. My time has expired.
    The gentleman from Missouri, do you have any additional 
questions.
    Mr. Cleaver. Yes. Thank you, Mr. Chairman.
    I sat in the House last night and nervously awaited a vote, 
the final vote on a rescue package for the automobile 
manufacturers. And I sat there probably longer than anybody 
else trying to understand how we could put ideology ahead of 
the best welfare of the country. And I think everybody up here, 
I really in my heart would at least want to believe that 
everybody here is trying to do the best thing.
    I do get nervous when I hear that CO2 is not a 
pollutant. I mean, I listened to a debate on television and I 
don't--I am losing hair right here, so I don't have a lot to 
pull out. And I wanted to pull some hair out because I couldn't 
believe that, in 2008, people are arguing whether 
CO2 is a pollutant.
    Mr. Holmstead. I don't think there is any question about 
that. CO2 is a pollutant.
    Mr. Cleaver. Are you suggesting it is a nice pollutant?
    Mr. Holmstead. No, no. There is a difference between--sir, 
air quality has always meant the air that we breathe and----
    Mr. Cleaver. Ambient air?
    Mr. Holmstead. The air that we breathe and its effect on 
us.
    Mr. Cleaver. Ambient air?
    Mr. Holmstead. Ambient air, yeah, the air that we--I am not 
suggesting that CO2 is not a pollutant or that it is 
not a problem. That was never my point, and I am sorry if I----
    Mr. Cleaver. Maybe I misunderstood. What were you saying?
    Mr. Holmstead. I was making a distinction between all of 
the other pollutants that have historically been regulated 
under the Clean Air Act in order to protect air quality, the 
air that we breathe. CO2, no one is claiming that by 
breathing CO2 we are doing any harm to ourselves. It 
is a very different kind of an issue. But it is, the Supreme 
Court has said that it is a pollutant under the Clean Air Act, 
and there is a lot of kind of detailed legal issues there. But 
please don't misunderstand, I think CO2 is an issue 
we have to deal with, yes.
    Mr. Cleaver. I guess if someone wanted to measure where we 
are in this struggle--I do--I mean, I had to do a funeral of 
Randy Crawford Jr., his father is probably watching this. And 
he runs out on the lawn in his underwear, falls down dead of an 
asthma attack. And it is probably, next to diabetes, it is the 
most dangerous--it has the most dangerous impact on African 
Americans. It is so pervasive.
    I grew up about 300 yards from what we called at the time 
``the cesspool'' which of the city's treatment plant, and I was 
about another 200 yards, 500 yards from the landfill, because 
they historically, as you know, are placed in minority 
communities. And so I try to speak dispassionately in this 
committee, but in my spirit, I am screaming. I mean, I am 
screaming. I know too many people who are in cemeteries because 
of this. And that is not your fault. I just became very 
concerned over what I thought you had said. But then I look at 
the fact that, in 8 years, the EPA administrator has testified 
before Congress--do you know how many times?
    Mr. Holmstead. I don't know.
    Mr. Cleaver. Two. One of the most significant agencies----
    Mr. Holmstead. Sir, that can't be right because I have sat 
behind him in numerous hearings. I was at EPA, and I sat 
behind----
    Mr. Cleaver. Mr. Johnson?
    Mr. Holmstead. Mr. Johnson, I don't know. But the EPA 
administrator----
    Mr. Cleaver. I am talking about Mr. Johnson.
    Mr. Holmstead. Mr. Johnson. Okay. Yeah, I know I sat behind 
numerous hearings for EPA administrators.
    The Chairman. Would the gentlemen yield just briefly?
    Just for the record, the EPA administrator did not appear 
before the house Energy and Commerce Committee, which has the 
legislative jurisdiction over the EPA for the first 6 years of 
the Bush administration; that is the committee with 
jurisdiction over it. So just for the record, it was the most 
successful witness protection program in the history of the 
United States, Republican Congress, Republican committee, 
Republican agency, Republican President, the head of the EPA, 
that is the environmental minister of the United States, as the 
rest of the world's environmental ministers are looking for 
leadership is not asked to testify before the committee in the 
United States House of Representatives with jurisdiction over 
that agency.
    So I would say that, you know, when Daniel Patrick 
Moynihan--if the gentleman will continue to yield--when Daniel 
Patrick Moynihan used to say the way to avoid dealing with an 
issue is to engage in benign neglect: Don't do anything 
positive; don't do anything negative. However, this was really 
a policy of designed neglect, you know, an actual policy 
designed to ensure that these environmental issues would not be 
dealt with, and it required a Republican Congress in not 
calling in the EPA administrator for 6 consecutive years to 
testify before the House of Representatives. So I know that is 
a fact.
    Mr. Inslee and I sit on the Energy and Commerce Committee. 
And for most of that time, if you put the EPA administrator on 
a panel of two people, the committee would have had a 50 
percent chance of picking him out of a lineup of two people. So 
it was a very successful program. If you don't know the name of 
the EPA administrator--people remember Mr. Rucklehouse's name. 
People remember names of 30 years ago better than they know the 
name of the EPA administrator today. It is just a fact of the 
matter.
    I apologize.
    Mr. Cleaver. No. Thank you, Mr. Chairman. The point I was 
trying to make you have already made quite eloquently, which 
was that the statement that this administration--we have done, 
quote, as well as any other country in the world with 
environmental issues. And I think when we start trying to meet 
the lowest common denominator of success, we are falling like a 
rock with regard to our leadership in the world. And I will 
just close out by asking you--I mean, if you think that with 
the EPA not appearing before congressional committees is a sign 
that we are really committed to cleaning up this environment 
for unborn generations?
    Mr. Holmstead. I have certainly had the opportunity on a 
number of occasions to testify, and I appreciate your 
thoughtful questions. In my heart of heart, I believe that the 
best way to determine our commitment to the environment is to 
look at the state of our environment and to ask ourselves, is 
the air cleaner today than was 8 years ago? The answer is yes. 
I don't--the other measurements are harder to come by. There is 
no doubt that CO2 emissions have increased over the 
last decade. There is no doubt about that. But air quality, as 
we measure the air we breathe, is significantly cleaner. In 
CO2, we have a major challenge, a worldwide 
challenge. And as I said, we are doing--no other country, 
despite their rhetoric, is doing better than we are when it 
comes to reducing CO2 because it is an enormous 
challenge.
    Mr. Cleaver. I agree.
    If Mr. Kennedy was correct when he provided us with opening 
comments about the people who are now in positions of 
significance with regard to our environment who are at least 
opposed to most of the things that we are for and I think the 
majority of the American public, I mean, is it, like, you know, 
like putting a werewolf in charge of the silver bullet store? I 
mean, first of all, are all of the people he mentioned--they 
are strong environmentalists, you would argue they are strong 
environmentalists?
    Mr. Holmstead. What I can tell you, and he said some things 
about me that were not right. I never represented a coal-fired 
power plant before I----
    Mr. Cleaver. Well, let's eliminate you.
    Mr. Holmstead. But I think what you have to do is look at 
people and what they have done, and are there people in the 
Obama administration who have worked for industries who will 
now have these positions? I think the answer is probably yes. 
But those are people who understand the issues, who truly want 
to do what is right for the country.
    And I know that Mr. Kennedy has--does not support some of 
the people or maybe all of the people in the Bush 
administration. But I think you need to judge them by actually 
what has been accomplished under their leadership. And I think 
that is the same way we should judge the Obama administration. 
I don't think my view, we don't look at regulatory controversy 
or number of hearings. What we look at, is the air cleaner? Are 
our emissions decreasing? Is the water cleaner? Is the land 
better protected? Those are the kind of measures that I think 
we can all agree on. And I think we will have a much more 
productive conversation if collectively we have that in mind, 
because I think that is kind of an ultimate goal that we can 
all agree on.
    Mr. Cleaver. Thank you, Mr. Chairman.
    The Chairman. The gentleman's time has expired.
    The gentleman from Washington State?
    Here is what I would ask then in conclusion, and that would 
be that each one of you give us your 2-minute, your 2-minute 
summary to us as to what you think we should be thinking about 
with these final 35 or 40 days or so of the Bush administration 
in terms of this midnight of regulatory attack and the 
perspective you think not only this committee but the country 
should have as this last-minute review of regulations and 
attempts to remove them from the books or modify them are being 
engaged in by the Bush administration.
    We will begin with you Mr. Holmstead, reverse order of the 
way in which we began the hearing. Two minutes to each one of 
you.
    Mr. Holmstead. Thank you, again, Mr. Chairman, for giving 
me the opportunity to be here today.
    I am concerned that we are not doing a good job of having 
constructive conversations about all of these issues, and I 
just urge this committee to look at the merits of each of these 
issues, to put aside the political rhetoric and say, in light 
of our shared goals to have a cleaner environment, is this the 
most effective way that we can do it? I am not an ESA expert, 
but I do know that the ESA is not the way that Congress 
intended to deal with climate change, and I think it is not the 
way that can have any meaningful impact at all. So let's talk 
about climate change and how we can deal with it.
    And I think if we keep the conversation over the next 45 
days and over the next 4 years at that level, we can all have a 
much more constructive conversation about climate change, which 
I know is of great interest to you and other members of the 
committee, about more traditional clean air issues, about clean 
water issues, about all of these things. My own hope is that 
some of the partisanship that has even been maybe in evidence 
here today can be put aside and that we can work constructively 
together on these issues.
    The Chairman. Thank you, Mr. Holmstead.
    Mr. Walke.
    Mr. Walke. Chairman Markey and members of the committee, 
first of all, thank you. I am grateful and the country should 
be grateful to you for holding this hearing and shining an 
important light on this problem that all too often goes 
unnoticed inside the beltway and in the broader country.
    You know, I am in agreement with a Supreme Court Justice 
who once said that sunlight is the best disinfectant, and that 
is starting here.
    But let's test the proposition of the administration's 
pride in these matters. With these deeply controversial rules 
that we have discussed and others that we have not, let's 
invite the administration to share their internal documents and 
professional staff and invite them to discuss what they believe 
is important, and let's take Mr. Holmstead at his word and 
discuss the content of these matters. Let's have the staff and 
have the materials under discussion now be made available to 
the public and to this committee and to the Senate to examine.
    I daresay the administration would not cooperate because, 
you know, let's be serious here. These are deeply 
controversial, pro-industry matters that they are trying to 
push out no matter what spin the administration is trying to 
put on them.
    So I would encourage this committee to look ahead to the 
transition team and the incoming administration to sit down 
seriously to discuss ways to go back and reverse abuses that 
are being committed today and will be committed up until noon 
on January 20th, because the American people deserve no less.
    Thank you.
    The Chairman. Thank you, Mr. Walke.
    Ms. Rappaport Clark.
    Ms. Clark. Thank you, Mr. Chairman. Thank you, Mr. Chairman 
and members of the committee.
    You know, given the magnitude of challenges facing 
President-elect Obama and this Congress on the economy and 
foreign policy, I hope that through this oversight and 
continued diligence, we won't lose sight of the pressing 
effects of what this administration has done, the unprecedented 
attacks on key rules that govern how we steward our public 
lands, our endangered species, our air and water. And we 
shouldn't play to the lowest common denominator. That is just 
not acceptable.
    I do think, however, we need to be ever vigilant because 
when President-elect Obama takes office on January 20th, there 
will not be a light switch that just flips and all will be 
fine. We need to be aware and sensitive to how deep the 
challenges are in these Federal agencies. Beyond just the 
political appointees packing up and going home, there are 
serious budgetary and administrative processes that have now 
embedded in these organizations, these agencies, that will need 
significant and continuing oversight so that we can once again 
restore our stewardship responsibilities and obligations.
    I am guided by my 9-year-old son, and he deserves what I 
have had over my time. And the fact that our children and our 
grandchildren will not be able to enjoy this wonderful--these 
wonderful natural resources should put us all to shame, and I 
look forward to working with you to right these wrongs.
    The Chairman. Thank you, Ms. Rappaport Clark.
    And Mr. Kennedy.
    Mr. Kennedy. Thank you, Mr. Chairman and members of the 
committee.
    I want to respond to one of the things that Mr. Holmstead 
said because I think it is really important for this committee 
and for Congress to understand at every level, which is that 
criticizing the administration is not partisanship. I have been 
disciplined over 25 years as an environmental advocate about 
being nonpartisan and bipartisan in my approach to these 
issues. I don't think there is any such thing as Republican 
children or Democratic children. I think the worst thing that 
can happen to the environment is if it becomes the province of 
a single political party.
    But it is hard to talk about the environment in any context 
honestly today without speaking about this administration and 
about what it has done to our environment over the past 8 
years. And if we don't understand the mechanisms by which this 
happened and if we don't discuss those honestly--when we 
discuss them, it is not an attack on Republicans. It is just we 
have a responsibility to tell the truth, and if we see somebody 
doing something that is wicked, we need to talk about it, 
whether Republican or Democrat. I wrote a book about this 
administration. I would have written the exact same book if 
they were Democrats. It is a critical book, but it is not 
partisan. My father was absolutely against partisanship because 
it is dishonest ultimately.
    But I want to give you one example of what this 
administration has done. You know, Mr. Holmstead just said air 
quality has improved. He has a very narrowly and carefully 
constructed world view in which he is able to make these 
intricate and very narrow arguments. But in the real world, we 
are experiencing something very different which is a decline in 
quality of life for all of the people of our country. About 8 
years ago, the EPA announced that in 19 States it is now unsafe 
to eat any fresh water fish caught in the State because of 
mercury contamination. The mercury is coming from those coal-
burning power plants. In 49 States, at least some of the fish 
are unsafe to eat. In fact, the only State where all of the 
fish are safe to eat is Dick Cheney's home state of Wyoming 
where the Republican-controlled legislature has refused to 
appropriate the money to test the fish. We know a lot about 
mercury now. According to CDC, the mercury--one out of every 
six American women now has so much mercury in her womb that her 
children are at risk for a grim inventory of diseases, autism, 
blindness, mental retardation, heart, liver and kidney disease. 
I have so much mercury in my body just from eating fish, two 
and a half times what EPA has considered safe. I was told by 
Dr. David Carpenter, who is the principal authority on mercury 
toxicity in this country, that a woman with my levels of 
mercury in her blood would have children with cognitive 
impairment, with permanent brain neurological injury. Today, 
according to CDC, there are 640,000 children born in this 
country every year who have been exposed to dangerous levels of 
mercury in their mother's womb.
    The Clinton administration recognizing the gravity of this 
national health epidemic reclassified mercury as a hazardous 
pollutant under the Clean Air Act. That triggered a requirement 
that all of those plants remove 90 percent of the mercury 
within 3 and a half years. It would have cost them less than 1 
percent of plant revenues, and we know that it works. When they 
stop emitting the mercury, it disappears within 5 years mostly 
from the fish and waterways downwind of those plants. But this 
is an industry that received--that donated $156 million to 
President Bush and his party since the 2000 election cycle, and 
they got--their reward was leaders like Mr. Holmstead here who 
came in and eviscerated that rule and instead replaced a rule 
that was written by utility industry lobbyists, his own law 
firm, Latham & Watkins, which ended essentially the regulation, 
that tight regulation of mercury and allows these utilities to 
continue to discharge mercury at huge rates for endless periods 
of time. That is the cost of doing this. And this is why one of 
the important things, what Mr. Walke said, is to shine light on 
this situation. It is not partisanship. It is just honesty, and 
the American public is entitled to that.
    The Chairman. Mr. Holmstead, I am going to give you an 
opportunity if you would like to say something.
    Mr. Holmstead. Yeah. I certainly agree that we need to be 
honest about all of these issues, and mercury is a much more 
complicated issue. And I won't try to address that.
    I just would again thank you for the chance to at least 
share the opportunity to be with others, and I am hoping that 
Mr. Kennedy and I can maybe talk a little more civilly about 
these issues, and we could maybe come to a better understanding 
of what really has and hasn't happened, because I certainly 
respect his expertise in many areas. But on some of these Clean 
Air Act issues, I think we just need to sit down and talk them 
through.
    But thank you for giving me the chance to say something.
    The Chairman. Thank you, Mr. Holmstead, very much.
    We thank each of you for appearing with us here today. 
There are 40 days left to go until noon on January 20th. We are 
not going to turn out the lights in this hearing room. The 
staff is not going away. What we are going to do on a daily 
basis for the next 40 days is monitor everything that the 
Department of Interior is doing, everything that OMB is doing, 
everything that the Department of Energy is doing, everything 
that the EPA is doing. We are going to be on their case. They 
should understand that if they make a decision or they move 
towards making a decision, they will get a response from this 
committee. We are going to be there every single minute so that 
the American people understand what is being done by the Bush 
administration in these final days that could have a negative 
impact upon the environment. We have no intention of resting.
    If they plan on New Year's Eve to issue a new regulation 
thinking everyone will be preoccupied, we will be working. If 
they intend on doing it on Christmas Eve and delivering lumps 
of coal to the American people in new environmental regulation, 
we will be working on this committee. They should just 
understand we are not going to take off. It is unfortunate, but 
it has to be the way in which we expect the Bush administration 
to act because that is the way in which they have acted for the 
last 8 years.
    So we plan on assuming that regulations will be promulgated 
at the point in a day where they think the least amount of 
media attention will be paid to it. I hope that is not the 
case. We are being told it won't be. But I think just the 
attention that we are paying to these issues resulted in a 
decision yesterday to withdraw a couple of these poorly 
thought-out new regulatory actions by the Bush administration. 
There are many others right now being considered covertly 
inside of this administration as going-away presents to 
industries. We don't intend on allowing it to happen without 
the full light of this committee's attention being drawn to it. 
We thank each of you for your testimony here today. This 
hearing is adjourned.
    [Whereupon, at 12:00 p.m., the committee was adjourned.]





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