Midnight Enviro Rules Expose the Real Bush Agenda: Preventing Change

The latest addition to Bush Administration's tidal wave of midnight regulations is a new rule -- imposed without required public comment -- that limits the definition of navigable waters.  Sound innocent enough, but it serves to remove protections for important wetlands under the Clean Water Act.

Among the countless small bodies of water to be affected: the wildlife-rich, though intermittent, Los Angeles River. (When a government biologist kayaked a 20-mile portion of the river in July to prove it was navigable, despite new definitions to the contrary, she was threatened with suspension.)

This is just one of a long list of President Bush's last-minute changes to regulations regarding smog, toxics, global warming, and endangered species protections. The new rules and policies have been widely condemned (or celebrated, depending on your point of view) as a last-gasp bid to impose epic change on American environmentalism -- to the benefit of oil companies, the coal industry, climate change deniers, developers, and polluters of all sorts.

But beyond the specifics of the new rules, the larger perception that President Bush is trying to change things by doing all this is false. The regulatory makeover, from wetlands to walruses, is really about preventing change.

At their core, the midnight rules represent a plan to perpetuate what the Bush Administration has been doing all along: blocking action on greenhouse gas emissions, consigning imperiled species to extinction, and opening up record amounts of irreplaceable public forests, wildlands and parks to private exploitation.

Bush did all this without new regulations, or to be more precise, he did all this despite existing laws and regulations that required him to do the opposite. The midnight rules, then, are really about handcuffing the next president from reversing the actions of an outlaw administration -- an attempt to make the illegal conduct of the last eight years into the law of the land that Barack Obama will inherit.

"Outlaw" is the correct term when it comes to Bush and the environment. He and his cabinet members have near-constantly violated the Endangered Species Act since taking office, and have regularly violated provisions of the National Environmental Policy Act and other environmental laws and regulations.

62 species have been listed under the Endangered Species Act during the Bush years. (That averages out to around 7.6 listings a year -- the lowest annual rate of any president since species protections began, during the Johnson administration).  They were made only under court order, or after lawsuits pointed out the administration's violations of the law.

This week, the Interior Department's inspector general reported that a Bush appointee broke the law while interfering in at least 15 endangered species decisions.

The Bush administration's latest decisions on the environmental front make it even clearer that the midnight rules are about preventing change rather than promoting it:

• The administration has refused to list as endangered the Emperor penguin and two other species, whose survival is threatened by polar ice melting.  (The administration, under court order, has proposed listing five penguin species as threatened and one as endangered.)
• 110,000 acres adjacent to treasured national parks in Utah have been opened up for oil and gas drilling, over the objections of every major environmental group in the country -- as well as the National Park Service.

In both cases, these actions were taken despite a legal requirement that the administration consider global warming and greenhouse gas emissions as possible threats to imperiled species and their habitats, and despite a legal requirement that scientists from the Fish and Wildlife Service and other agencies be consulted, and their findings given precedence over economic considerations. Lawsuits are planned or have already been filed by coalitions of environmental groups to overturn both actions.

The penguin and oil lease actions were taken not under the new midnight rules, but under old regulations that Bush has largely ignored or defied throughout his presidency. The next president likely would handle these issues differently.  This is why the midnight rules would, among other things, take global warming off the table when considering extinction threats under the Endangered Species Act. They would also eliminate the need to consult federal scientists from outside the agencies championing a project that could affect endangered species.

Under the new regs, the Bureau of Land Management, for example, could issue oil leases after consulting itself, rather than being forced to consider the scientific opinions of other government agencies, such as the Fish and Wildlife Service.

Bush's midnight rulemaking retroactively legalizes his administration's past eight years of environmental lawlessness.   Says Kassie Siegel, head of the climate program for the Center for Biological Diversity: "The Bush administration has repackaged the same old lump of coal as a holiday present."

But these last-minute regulations can still be fought: by the next president, by Congress, and by citizen lawsuits that challenge them for violating the laws they are supposed to be enacting.

Image: Emperor penguins with young. Photographer: Giuseppe Zibordi. Credit: Michael Van Woert, NOAA NESDIS, ORA