Midnight for the 'Environmental Awakening'

Not that long ago, a U.S. president rousingly declared a national "environmental awakening:"

It marks a new sensitivity of the American spirit and a new maturity of American public life. It is working a revolution in values, as commitment to responsible partnership with nature replaces cavalier assumptions that we can play God with our surroundings and survive.

These words might bring to mind Teddy Roosevelt, or perhaps Jimmy Carter in his energy-crisis cardigan, but no, this acclaim for an earth-friendly "revolution" was delivered to Congress in 1972 by none other than Richard M. Nixon. On Nixon's watch was born such epic bipartisan accomplishments as the Clean Water Act, expansion of the Clean Air Act, the National Environmental Policy Act, the Marine Mammal Protection Act, creation of the EPA and, the most powerful environmental law of any era, the Endangered Species Act.

You know things are bad when Richard Nixon, he of Watergate and secret bombings and the Southern Strategy, represents the good ol' days. But so he does, at least on the ecological front, as six administrations later, we have an outgoing president intent on putting Nixon's environmental awakening to bed. Permanently.

With an unprecedented flurry of "midnight rule-making," President George W. Bush is pushing through dozens of last-minute regulations that go far beyond merely hamstringing his successor. If they stand, they could worsen air and water pollution in wilderness areas; damage national parks, refuges and forests with favorable deals for mining, drilling and coal-fired power plants; consign ever more species to extinction and wildlands to private exploitation; and make certain the feds do as little as possible to rein in greenhouse gas emissions and the climate change the fuel.

"They clearly have a Christmas list of gifts they want to hand to industry," says Kieran Suckling, executive director of the Center for Biological Diversity. "And they're scurrying like Santa's little rats to get them delivered in time."

The irony: Since taking office, the Bush administration has been all about rule-breaking, not rule-making. In researching my upcoming book, ECO BARONS: The Dreamers, Schemers & Millionaires Who Are Saving Our Planet, I found President Bush and his appointees have been constant environmental outlaws - not just one violation, but hundreds of them. Politics and corporate interests trumped science in at least 57 cases. As many as 10 species have gone extinct that the administration was legally required to protect, but didn't. Now the goal seems to be to enshrine what previously has been illegal in a web of new regulations:

• In an attempt to hobble the Endangered Species Act, new regulations will instruct federal agencies to ignore global warming (or any other "global process") as a potential cause of extinction. Sensible regulation of coal-fired power plants, urban sprawl, gas-guzzling vehicles, deforestation and other major contributors to climate change - and to the current worldwide extinction crisis -- will be swept off the table if these new regs stand. The impetus: Interior Secretary Dirk Kempthorne was incensed earlier this year that the Endangered Species Act compelled him to make a legal finding that the polar bear is threatened and must be protected because global warming is melting its sea ice habitat.
• Bush wants to scrap current law that requires all federal agencies to consult with biologists at the Fish and Wildlife Service or National Marine Fisheries Service before taking any action that could affect endangered species or their habitats. The intent of this practice was to put science ahead of politics in assessing threats to endangered species, but the new Bush policy would let each agency consult itself on pursuing the projects and permits it wishes to approve -- putting political appointees and corporate lobbyists in the driver's seat.
• National park visitors would be permitted to carry loaded, concealed firearms under the new Bush rules.
• The practice of mountain-top removal to extract coal would be expanded under new regulations that would allow dumping of waste closer to rivers and streams.
• New rules would lift restrictions on power plant construction and air pollution near national parks and other protected wilderness areas.
• Industrial farms would be allowed to self-regulate under new rules exempting them from Clean Water Act regulation of harmful run-off.
• New rules would allow the EPA to treat more than 100,000 tons of hazardous waste as if it were ordinary fuel, so that it could be burned without safeguards against toxic emissions.
• New rules would open two million acres of public lands in the West to the extraction of oil shale, with a costly and dirty process that uses tremendous quantities of water and emits many times the greenhouse gases as conventional oil drilling.
• Endangered species protections under new rules would be limited to areas currently occupied by a species, rather than their historic habitats. Throughout the existence of the Endangered Species Act, restoring species to their original range has always been the goal, from condors and bald eagles to grizzlies and wolves. If these new rules had been in place all along, America's national symbol would likely be extinct.

These rule changes (and some 200 others across the government) are justified by administration officials as attempts to restore "balance" and what Interior Secretary Dirk Kempthorne calls "flexibility" in the face of "radical" environmental regulations such as the Endangered Species Act.  But what Kempthorne calls flexibility, environmentalists tend to view as an abdication of oversight and a license to pollute and exploit public lands - with the new rules serving as a regulatory codification of what the Bush Administration's unofficial policy has been all along. As for the supposedly radical and inflexible nature of the Endangered Species Act, long a Bush talking point, it must be pointed out that not only did a Republican president praise and sign the legislation 35 years ago, but the law passed the Senate on a unanimous vote, and with only four dissents in the House.

Some of the Bush midnight rules can be undone with the stroke of a new President Obama's pen, and environmental groups are already petitioning him to do so. But some of the most harmful regulations are being rammed through accelerated public comment periods, and those may take years to change. Congress may be able to overturn some, using a 1996 regulatory review act originally adopted by a Republican-controlled House and Senate intent on foiling President Bill Clinton.

As for the rest, many last-minute changes - such as the self-consulting rule and the elimination of global warming as an extinction threat - almost certainly will be challenged in court as violating the very laws these regulations are supposed to implement.

"We have the lawsuits already written up and ready to go," says Suckling. "The upside is that it will be the Obama Administration, not the Bush Administration, that will be defending these regulations in court, and we're hoping they won't even bother trying."

Image: View of Earth from Apollo 7, October 1968.  Source: Life photo archive, hosted by Google