Defenders Magazine

The Ungreening of America

One by one, the Bush administration is dismantling environmental protection laws

By Michelle Nijhuis

The Air We Breathe

For more than 30 years, the Clean Air Act has regulated pollution from coal-fired power plants, riding lawnmowers, and everything in between. If the Bush administration has its way, this venerable law is about to undergo a major makeover.

Late in 2002, the Environmental Protection Agency (EPA) announced revisions to the Clean Air Act's "New Source Review" rules. New Source Review requires power plants and other industrial facilities to install up-to-date pollution controls if they expand their operations. The revisions, which could take effect by the end of the year, would allow thousands of aging facilities to avoid these anti-pollution measures.

Ten northeastern states have challenged the rollback in court, charging that increased sulfur dioxide emissions would cause more acid rain in their region. "We're the tailpipe of the nation," says Alyssa Schuren, field director for the Vermont office of the Toxics Action Center. "Everything comes straight through here."

Sen. John Edwards, D-N.C., recently tried to delay the revisions with an amendment to the appropriations bill. His motion, though supported by five Senate Republicans from the Northeast, failed 50-46 in late January. Rep. John Dingell, D-Mich., has asked the EPA to extend its public comment period on the revisions by another two months.

The administration's "Clear Skies Initiative," proposed by the EPA in March 2002, has been widely criticized by environmental groups. The initiative ignores carbon dioxide pollution and would repeal existing state deadlines for air cleanup. "It's a retreat from a meaningful implementation of the Clean Air Act," says John Walke, clean air program director for the Natural Resources Defense Council.

Clear Skies bills were introduced in the Senate and House last year, but both measures failed to pass. The president gave the initiative another plug in his State of the Union address, and new Senate Environment and Public Works Committee Chair James Inhofe, R-Okla., has said he will introduce the bill.

Drilling & Mining

Environmentalists and their supporters in Congress have managed to prevent oil drilling in the Arctic National Wildlife Refuge, but the debate is certain to begin again this year. Though Congress is still fighting over the refuge and other aspects of Bush's energy policy, the nation's lawmakers control only a small part of the plan. The administration has already enacted several measures that invite the oil and gas industry into our public lands — "completely under the radar screen of the media and the American public," says Noah Matson, Defenders' director of public lands.

In May 2001, Bush signed an executive order requiring federal agencies to "expedite their review of permits" for energy projects. "That put everybody on notice that energy is the top priority of this administration," says Matson. Bush also established an energy task force to help smooth the way for oil and gas production.

These measures have hit the ground hard, most dramatically in the Powder River Basin of northeastern Wyoming. The wide-open basin has already been perforated with 12,000 coal-bed methane wells; now, the Bureau of Land Management plans to allow industry to punch in another 65,000 wells by the year 2010. The project will require 26,000 miles of new roads and 20,000 miles of new pipelines, and the wells are expected to pump 1.4 trillion gallons of groundwater to the surface of the basin. It's the largest natural gas project ever proposed by the Department of the Interior. "The magnitude of this is so disgusting," says Mac Blewer, outreach coordinator of the Wyoming Outdoor Council, "and people don't even know it's going on."

The outdoor council recently blocked a handful of gas leases in the basin by appealing to a federal land-use board. Though the decision does not directly affect the Powder River Basin project as a whole, it may be useful evidence in a pending federal court case over the gas leasing process.

Here Come the Judges

In this unfriendly political climate, legal action has become an especially crucial tool for environmentalists. The Bush administration's judicial nominations promise to have an enormous impact on environmental protections — one that will be felt for decades to come. "There's probably nothing President Bush will do that will have a longer-lasting impact on federal laws," says Defenders' litigation director Mike Senatore. "After all, these are appointments for life."

One of the key courts for environmental battles is the U.S. Court of Appeals for the D.C. Circuit, which has jurisdiction over most federal environmental regulations. The court is now evenly split between Democratic and Republican nominees, but the administration has nominated two very conservative private-practice lawyers to fill vacancies on the bench. John G. Roberts and Miguel Estrada were both nominated by Bush in the spring of 2001; Roberts is still awaiting a hearing, but Estrada's nomination was approved by the Senate Judiciary Committee on January 30. Estrada's sparse public record, along with his refusal to answer some specific questions about his views, has alarmed many environmentalists.

The 2002 election results required steadfast Bush critic Patrick Leahy, D-Vt., to hand over leadership of the Senate Judiciary Committee to Utah Republican Orrin Hatch. Hatch has said he will act quickly on the remaining Bush nominations.

Rivers, Streams & Wetlands

Though the Clean Water Act aims to make the nation's waters safe for swimming, drinking and fishing, the Bush administration seems to be doing its best to make our rivers and wetlands safe for mining and development.

In the densely forested mountains of southern West Virginia and eastern Kentucky, a particularly brutal form of coal mining has destroyed more than a thousand miles of streams and rivers. "Mountaintop removal" mining literally slices off mountain peaks, dumping tons of waste rock and soil into the steep valleys below. The practice transforms the mountains into "biological deserts," says Dave Cooper of the Ohio Valley Environmental Coalition, and it leaves low-lying towns vulnerable to deadly floods. "There's no vegetation left to soak up the rain — the mountain is like a giant Wal-Mart parking lot," Cooper says. "The water just comes screaming down."

In May 2002, after a judge ruled that the federal government was violating its own regulations by permitting waste dumping in streams, the EPA changed its regulations to allow the practice. Though the judge again ruled that the dumping was illegal, an appeals court overturned his decision in late January. Bipartisan legislation in the House would reverse the EPA rule change.

The rich wildlife habitat provided by the nation's wetlands has taken a double hit from the administration. The U.S. Army Corps of Engineers axed the "no net loss" wetland policy established by Bush's father, a change that allows developers to "replace" wetlands with dry acreage.

In January, the administration proposed to gut protections of "isolated wetlands" under the Clean Water Act. The revised rules could open up to 20 percent of the nation's wetlands to development. House and Senate Democrats are expected to introduce bills that would reverse the proposal.

Chipping Away at Bedrock Law

If you've ever written a comment letter to the Forest Service, attended a public hearing at a local Bureau of Land Management office or waded through an environmental impact statement from your favorite national park, you've participated in the 30-year-old public process established by the National Environmental Policy Act (NEPA). NEPA requires all federal agencies to analyze proposed projects that may have a significant impact on the environment, consider alternatives to the proposal and ask for public comments.

The Bush administration, charging that NEPA reviews result in "analysis paralysis," has been chipping away at this bedrock environmental law. "It's been an attack of a thousand cuts," says Susan Prolman, Defenders' government relations associate.

In May 2002, the administration created a task force to review NEPA and recommend changes in its implementation. Though those recommendations have not yet been made public, the administration has already ditched many public participation requirements for forest management, federal highway projects and oil and gas drilling.

The administration also maintains that NEPA should not apply to the Exclusive Economic Zone, the massive swath of ocean that lies between three and 200 miles off the U.S. coastline. Though a federal court recently rejected that argument, the decision could still be appealed — leaving millions of square miles of whale, dolphin and sea turtle habitat hanging in the balance.

Transportation & Urban Sprawl

Just days before the midterm elections, a handful of Republican candidates got lucky. Bush released a list of "high-priority" transportation projects, promising that the federal government would give them speedy environmental reviews. The list gave a boost to several Republican hopefuls: In Vermont, for example, the administration's fast-tracking of a delayed highway project may have helped Republican Jim Douglas win a tight governor's race.

Bush isn't the only politician in a rush to build roads. Though a recent Federal Highway Administration survey showed that the majority of transportation projects are held up by funding shortages, local controversy or technical problems, members of the House and Senate have introduced legislation to "streamline" environmental reviews of road and transit projects. The bills would weaken review requirements and set short, strict deadlines for analysis of project impacts.

Environmentalists and smart-growth activists are also keeping an eye on the Transportation Equity Act for the 21st Century (TEA-21), which is up for reauthorization this year. The law, which determines how states spend almost $200 billion in federal transportation funds, has a huge influence on both people and wildlife. "This is the big enchilada," says Trisha White, transportation associate for Defenders. "This is how states get transportation money and decide where to spend it."

Smart-growth advocates are pushing for more mass-transit funding in the new version of TEA-21. Defenders and other environmental groups are also hoping the law will require transportation officials to consider wildlife, air and water early in the planning process — before states pour money and time into proposed projects. "States get big bucks for transportation," White says. "Spending it on more congested roads not only destroys wildlife habitat, it fails to meet the mobility needs of Americans."

National Forests at Risk

The national forest system stretches over 191 million acres  —including the temperate rainforests of the Northwest, the hardwood forests of the Southeast, and the high-desert pines and junipers of the Great Basin. Under the Bush administration, these forests' wildlife, watersheds and roadless areas are in jeopardy.

Bush has all but abandoned the National Forest Roadless Area Conservation Rule, a Clinton-era measure that protects almost 60 million acres of roadless areas in national forests. In December, an appeals court lifted an injunction blocking the roadless rule in a case in which the Bush administration refused to defend the rule from an industry lawsuit, so it is now in effect nationwide. Forest Service officials have hinted they will rewrite the policy once the remaining court cases are decided.

In November 2002, the administration proposed sweeping changes to the regulations for managing national forests under the National Forest Management Act (NFMA). The revisions would undo longstanding requirements for wildlife protection as well as scientist and public input into public forest management. Even forest plans, which govern the management of entire forests, could be exempted from all environmental analysis and amended without public notice or comment. "It basically returns national forests to a 'Trust us' approach," says Mike Leahy, natural resources counsel for Defenders of Wildlife. "The same approach that brought us endangered species and clearcuts from horizon to horizon."

These revisions threaten wild places such as western Montana's Rocky Mountain Front, which was closed to oil and gas drilling five years ago by Lewis and Clark National Forest supervisor Gloria Flora. Since Flora's decision was part of a forest plan, it could be quickly and quietly overturned under the administration's new forest rules.

The administration's actions have angered both Democrats and moderate Republicans; Rep. Sherwood Boehlert, a Republican from New York, blasted the NFMA revisions in a letter to the Secretary of Agriculture.

In December, the administration went a step further, proposing to slash environmental review requirements for any logging project — of any size — that is aimed at reducing wildfire risk. Bush offered similar changes in the so-called Healthy Forests Initiative, a proposal to deal with forest fires solely through widespread weakening of environmental and public participation laws. Lawmakers failed to reach a compromise on the initiative, so the president took advantage of an exemption in forest regulations and put much of his plan in place without a congressional blessing.

Parks & Monuments

Our national parks and monuments have long been the most visible part of the public-lands system. The Park Service manages nearly 80 million acres of parks, monuments and other protected areas and hosts almost 300 million visitors every year. President Clinton's Interior Secretary Bruce Babbitt also gave some monumental responsibility to the Bureau of Land Management. That agency now oversees more than 20 monuments in the western United States, ranging from the Sonoran Desert National Monument in southern Arizona to the Upper Missouri River Breaks National Monument in eastern Montana.

The Bush administration is threatening these world-class lands. In June 2001, it suspended a proposed ban on snowmobiles in Yellowstone and Grand Teton national parks, and in November of last year the Park Service announced that snowmobiling would continue in the parks. The noisy machines have been shown to cause higher levels of stress hormones in wild wolves, which live in both parks. They're also a major headache for park employees: Snowmobile use at Yellowstone is so heavy that entrance-booth workers complain of nausea and dizziness caused by the clouds of exhaust fumes.

The administration has also watered down protections for the nearly 6 million acres of national monuments designated by President Clinton. In August 2002, Interior Secretary Gale Norton approved energy exploration within the artifact-rich Canyons of the Ancients National Monument in southwestern Colorado. The exploration was quickly halted by a lawsuit from environmental groups.

The administration's lax off-road vehicle rules are another serious menace to monument resources. "There are two tracks in these monuments that travel over archaeological sites and through endangered species habitat," says the Sierra Club's Julie Sherman, who works to protect the five new monuments in Arizona. The Sierra Club and Defenders are part of the National Monuments Coalition, a network of local and national environmental groups.

On Christmas Eve, the administration poked yet another hole in park and monument protections. It released a new rule that may make it easier for local governments to claim control of thousands of miles of roads and trails on public lands — including routes within parks and monuments. Norton is expected to issue a formal policy on these "RS 2477" routes this year.

Stripping Protections From Wildlife

The Endangered Species Act has long been a bugaboo for anti-environmental lawmakers, who have unsuccessfully attacked it from every imaginable direction. In recent months, Congress has been relatively quiet about the nation's most important wildlife protection law, leaving much of the dirty work to the White House.

The Bush administration has been especially hard on imperiled fish. Last summer, the administration released irrigation water to 1,400 farmers in the Klamath Basin of southern Oregon, resulting in the deaths of tens of thousands of chinook and coho salmon in the lower Klamath River. The federal government decided not to restore salmon habitat by breaching the Snake River dams in Washington state. On New Year's Eve, 2002, the administration proposed new, weaker standards for dolphin-safe tuna labeling, provoking a lawsuit from Defenders and other groups.

Bush administration lawyers have also refused to back habitat protections for just about every run of Pacific Salmon — not to mention similar protections for the cactus ferruginous pygmy-owl and the red-legged frog. "Instead of defending these designations from industry lawsuits, the administration immediately throws in the towel," says Defenders' litigation director Mike Senatore.

Habitat protections on the nation's military lands are under attack by the Department of Defense, which wants Congress to grant it exemptions to federal environmental laws. The department's proposal is likely to appear in a bill later this year.

Environmentalists have claimed some recent court victories on behalf of wildlife. In January a judge ruled that the federal government must promptly identify critical habitat for the threatened Canada lynx. Defenders has also reached a settlement with the government that will expand sanctuaries for the endangered manatee.

Back-Door Maneuvering

Environmental champions in Congress have played an effective defensive game for the past two years, but their opponents claimed a few significant victories in the 108th Congress. The timber industry worked through its champion, Senate Appropriations Committee Chairman Ted Stevens of Alaska, to attach add-ons to the massive fiscal 2003 budget bill that threatens to undo years of forest protections. Thanks to the protests of Defenders and other environmentalists, some of the worst provisions were dropped, including one to allow the cutting of enough of the Tongass National Forest to meet "market demand." But the final bill still allows more than double the 20-year average cut from the Tongass. And more broadly, it permits the Forest Service to sign "stewardship" contracts letting logging companies decide which trees nationwide should be cut.

Robert Dewey, Defenders' vice president for government relations, worries that the Tongass provision is a grim prediction of the future. "We're going to get ganged up on here," he says. "The administration and Congress are systematically trying to undermine our ability to have a meaningful check on their powers."

Senate anti-environmentalists are expected to attach a measure allowing oil drilling in the Arctic National Wildlife Refuge to the upcoming budget bill — a move that could prevent all congressional debate on the issue. Drilling would destroy America's greatest wildlife preserve. "It's the ultimate back-door tactic," Dewey says.

Michelle Nijhuis is a freelance writer living in Paonia, Colorado.