Recess

Floor Speech

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Ms. MURKOWSKI. The amendment I bring forward this evening would modify section 429 of the bill we have before us. This amendment does not cost us any money. It will, in fact, eliminate a major obstacle to job creation, including many of the construction projects that were funded under the recently passed stimulus bill.

To be more specific, I am introducing an amendment to modify section 429 to require the Departments of Interior and Commerce to follow the process provided by existing law to withdraw and alter two provisions that were essential ingredients last year in the decision by former Secretary of the Interior Dirk Kempthorne when he listed the polar bears of northern Alaska as threatened under the Endangered Species Act.

Section 429, as it now stands, would allow those agencies to withdraw those regulations arbitrarily and then reissue them immediately without public comment. My amendment does not overturn the listing of the polar bears as threatened, even though up in Alaska most of us feel the listing was premature and perhaps totally unnecessary, but it will require the Department to follow existing public notice and comment statutes, if they want to modify last year's listing decision and the related carbon emissions rule in the future.

We are asking that you follow the process that is in place. Section 429 of the omnibus provides a provision that allows the Secretaries of Interior and Commerce to withdraw the final rule relating to the interagency cooperation under the Endangered Species Act and the final rule relating to endangered and threatened wildlife plants, the special rule for the polar bear.

This section allows the Secretaries of either Commerce or Interior, or both, to withdraw the two Endangered Species Act rules promulgated under section 7 of that act within 60 days of adoption of the omnibus bill and then reissue the rule without having to go through any notice or any public comment period, or be subject to any judicial review as to whether their actions were responsible.

Last year, after years of comment and review, the Interior Department elected to list the polar bear as threatened, solely because of the fear that greenhouse gas emissions will raise temperatures sufficiently in the future, causing the Arctic pack ice that the bear relies on for habitat to melt, making it more difficult for the bears to feed.

During the scientific review that was conducted before the listing decision, there was very little to no evidence that indicated that neither very carefully limited subsistence hunting activities by the Alaska Natives, nor onshore or offshore oil and gas exploration or production activities in any way would disturb the bears or place stress on their population.

So it was for that reason, based on all the science and the research, for that reason that the listing decision specifically provided, and this was set forth in section 4(d) of the act, it provided that oil or gas development or subsistence hunting will not be impacted by any action plan the Department will craft to remedy bear population issues in the future. Those provisions were added after extensive public comment and based on a full scientific review.

Now, without any scientific review, at the last minute, someone in the House of Representatives has decided to impose as fact their opinion that the bears should be listed as threatened without limitation. This provision makes a mockery of what we know and accept and applaud with the scientific review process.

In all the science leading up to the listing, there was no evidence that oil or gas exploration and development were having any effect on the bears which are already carefully regulated under the Marine Mammal Protection Act. In fact, the populations of both the Beaufort and Chukchi Sea areas have actually risen by around 500 bears since 1972, and any anecdotal evidence of minor recent declines is purely anecdotal.

Now, yes, Fish and Wildlife researchers have some evidence that bears may have dietary issues that may impact juvenile survival rates if the ice melt causes dislocation of the seal populations. But that problem has nothing to do directly with oil or gas or subsistence activities.

Withdrawal of the 4(d) protections could prompt lawsuits to stop any action that would increase carbon dioxide or any greenhouse gas emissions anywhere in the country, not just in the State of Alaska but anywhere in the country, if the project had not first consulted with U.S. Fish and Wildlife on potential impacts.

What this means, the potential for this is that every powerplant permit anywhere that might increase carbon emissions could face a lawsuit. Damage could extend past fossil fuel projects to include an incredible array, agricultural practices, any increase in livestock numbers, new road construction, literally any project or activity that might increase greenhouse gas emissions.

Suits that could be triggered by this seemingly limited change could stop many of the construction projects that this body has provided funding for in this stimulus bill to help get this Nation's economy moving again.

Now, the Center for Biological Diversity has already stated it intends to use the polar bear listing to regulate greenhouse gas emissions. But I am afraid such overreaching could actually harm environmental protections. That is because such an effort to overreach could trigger such a backlash that it harms support for the entire Endangered Species Act.

The administration is planning to ask Congress to pass cap-and-trade legislation this year to regulate greenhouse gasses. Debate over that bill is the proper place for this issue to be tackled, not through a back-door amendment to this key appropriations bill that will not permit public process.

For my home State of Alaska, the amendment's impacts are immediate and they are far reaching. It is almost certain to result in lawsuits to stop oil and gas development in northern Alaska, both onshore and off. Such suits certainly could stop the exploration needed to produce new natural gas finds. We know this is vital to the viability of an Alaska natural gas line to bring our clean-burning natural gas to the lower 48.

This project has been supported by the administration and most every Member of this body. We recognize that such sites could endanger Native subsistence activities, not just for the bears and marine mammals that the bears prey upon but for any species, such as the western and central Arctic caribou herds. These are vital food sources for our Alaska Natives.

So what my amendment does is it requires that if either the carbon emissions consultation rule or the polar bear 4(d) rule is to be withdrawn or reissued, such action is subject to the requirements of the Administrative Procedures Act, with at least a 60-day comment period.

What this does, it essentially gets us back to the status quo, where the Secretaries can now withdraw or repromulgate these regulations, but they have to follow the APA. Nothing Earth shattering, we are not plowing new ground. We are saying, follow the process we set up. The provision in the budget bill does much more than overturn Bush administration rules, it violates the public process and scientific review called for in the Endangered Species Act, and by doing that it weakens and risks support for the act.

As it stands, under section 429, the Secretaries can make dramatic and far-reaching changes with their rules and regulations and do so without having to comply with the longstanding Federal process requiring public notice and comment by the American public and by knowledgeable scientists. We should not make a mockery of the formal ESA review process and the APA, the Administrative Procedures Act. We should support this amendment to strike the House waiver of those acts and require that those laws be enforced.

I cannot stress how important this is to the Nation, to the American energy production of the workings of the stimulus bill, and eventually to the integrity of the Endangered Species Act and this Nation's administrative process.

Now, this afternoon President Obama issued a new directive on the ESA. But it is only pertaining to the optional consultation portion of section 7. The directive requests the Secretaries of the Interior and Commerce to review the regulation issued on December 16, 2008, and determine whether to undertake new rulemaking. Until such review is completed, the President requested the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence process.

But this Presidential order did not address the issue of the polar bear 4(d) rule and does not remove the House omnibus rider. It does not maintain the Administrative Procedures Act requirement, and it does not negate the need for my amendment.

I yield the floor.

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