[Congressional Record Volume 155, Number 37 (Tuesday, March 3, 2009)]
[Senate]
[Pages S2679-S2680]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        CHANGES TO THE ESA RULES

  Mr. INHOFE. Madam President, I was listening with some interest to 
the Senator from Alaska and what she is trying to do. I think, once 
again, we are faced with a backhanded attempt to regulate greenhouse 
gases without the transparency of public debate. Section 429 of the 
omnibus currently includes yet another congressional handout to some of 
the extremist groups and to the trial bar. This rider is clearly an 
attempt to legislate on a spending bill, the sort of bad habit that 
Democrats in Congress and the White House promised to give up during 
the last election.
  As ranking member of the Environment and Public Works Committee, I 
strongly support the bipartisan amendment offered by Senators Murkowski 
and Begich to revise the omnibus section 429. This subject is 
particularly important to me since the EPW Committee holds jurisdiction 
over all issues impacted by the offending provision, including 
endangered species, the regulation of greenhouse gases, and the 
transportation infrastructure which we are going to be pursuing in the 
next few weeks.
  Without the amendment, section 429 allows the agencies to make 
dramatic changes to the Endangered Species Act rules and regulations 
without having to comply with longstanding Federal laws that require 
public notice and public comment by the American people and 
knowledgeable scientists. These changes have the potential for far-
reaching and unintended consequences in our economy.
  Specifically, this activist-friendly rider would allow the Secretary 
of Interior and the Secretary of Commerce to undo a regulation making 
commonsense adjustments to the ESA as well as withdraw a special rule 
and listing for the polar bear. By ignoring the protections of the 
Administrative Procedures Act, the rules in question could be withdrawn 
within 60 days of adoption of the omnibus bill and then reissued in 
whatever form the agencies preferred, without having to go through any 
notice or public comment period and without being subject to any 
judicial review as to whether their actions were responsible or 
justified.

  This is exactly what the two Senators from Alaska are attempting to 
correct. Existing ESA rules clearly lay out the U.S. Fish and Wildlife 
Service position that oil and gas development in the Arctic and Alaska 
Native subsistence activities are not the reason for the polar bear's 
recent listing status and are not affecting polar bear population. I 
might add that we have made quite a study of the 13 polar bear 
populations in Canada. All but one are increasing. The one that is not 
is the western Hudson Bay. That is due to some regulations in hunting 
that have adversely affected them. That is being corrected at this 
time. So if you stop and realize over the last 40 years, we have 
increased the population of polar bears in the world by fivefold, then 
there isn't a problem. However, let's assume that there is a problem, 
and we want to be sure that we are able not to have the intended 
consequences.
  If enacted, implementation of section 429 would mean that any 
increase in carbon dioxide or greenhouse gas emissions anywhere in the 
country could be subject to legal challenges due to assertions that 
those activities are harming a polar bear or that there has not been 
sufficient consultation with the U.S. Fish and Wildlife Service 
regarding activities that are funded, carried out, and authorized by 
the Federal Government.
  In other words, you could have someone who is cooking on his Hasty 
Bake in his backyard in Tulsa, OK and have a lawsuit filed saying: You 
are emitting greenhouse gases; therefore, you are affecting the polar 
bear. Any permit for a powerplant, refinery, or road project that 
increases the volume of traffic anywhere in the United States could be 
subject to litigation, if it contributes to local carbon emissions. 
Lawsuits and ESA-prompted delays could extend to past fossil fuel-
linked projects, if those projects could increase greenhouse gas 
emissions or reduce natural carbon dioxide intake.
  If this provision is allowed to stand, it will likely endanger the 
delivery of the majority of the construction projects funded by the 
recent stimulus bill since these projects have not gone through a 
section 7 consultation regarding their impact to the polar bear. In 
other words, we passed the stimulus which I opposed. I had an amendment 
that would have actually provided a lot of jobs. That amendment they 
would not let me bring up. I believed that since it was an Inhofe-Boxer 
amendment, it would have passed. But it didn't.
  So now we have a few jobs out there, a few things that are going to 
contribute to the employment problem of this country. If this provision 
is in there without the correction found in the bipartisan amendment by 
the two Senators from Alaska, then it is going to say the very thing we 
are trying to stimulate--in terms of jobs, construction, roads, 
bridges, and highways--cannot be done because of the section 7 
consultation regarding the impacts on the polar bear. Ironically, 
President Obama today announced the release of $28 billion from the 
American Recovery and Reinvestment Act to States and local 
transportation authorities to repair and build highways, roads, and 
bridges. This investment will lead to

[[Page S2680]]

150,000 jobs saved or created by the end of 2010. State highway 
departments have already identified more than 100 transportation 
projects throughout the country, totaling more than $750 million, where 
construction can start within the month. In other words, we have 
already undergone all of the environmental requirements. We have the 
environmental impact statements. We are ready right now. In my State of 
Oklahoma, we have $1.1 billion worth of work that could be started 
tomorrow.
  Now, President Obama stated that the projects funded under the ARRA 
are deemed so important to America's economic recovery that they will 
bear a newly designed emblem. The emblem is a symbol of President 
Obama's commitment to the American people to invest their tax dollars 
wisely and to put Americans back to work. Rest assured that section 429 
of the omnibus bill will not bear this emblem.
  I applaud the President for highlighting infrastructure spending as a 
main driver of immediate job growth in the stimulus plan, but I am 
concerned by the conflicting priorities created by section 429. You 
cannot support large infrastructure spending as an economic stimulus 
while simultaneously endangering its translation into job growth with 
more redtape.
  The Murkowski-Begich amendment correctly requires that if these ESA 
rules are withdrawn or revised, the action is subject to the 
requirements of the Administrative Procedures Act, with at least a 60-
day comment period. This is a good government amendment. The fact that 
this amendment is even needed to restore the public participation 
protections is exactly the sort of nonsense that makes the American 
taxpayer so suspicious of Congress. From the public's perspective, the 
effect of this amendment would be to bring us back to the longstanding 
process where the agencies may withdraw and revise regulations by 
following the law established to do so.
  We have heard from the Democratic managers of this bill that nothing 
new was added to this bill since last year. We have been told there is 
no controversial legislative language in this bill.
  We have been misinformed. This rider was not a part of the 
negotiations or the appropriations bills last year, and I assure you, 
it is very controversial. I urge the leadership to allow the Senate to 
vote on the Murkowski-Begich amendment, and I ask for my colleagues' 
support for ensuring regulatory transparency.
  I believe this is very important because, without this, there is so 
much uncertainty as to what the application would be in terms of the 
Endangered Species Act. So I encourage the adoption of that amendment.
  I yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. INHOFE. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Gillibrand). Without objection, it is so 
ordered.

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