[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
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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.]