Bills to permanently block oil exploration off West Coast introduced

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Ocean waters near Heceta Head lighthouse in Oregon would be among those protected from fossil fuel exploration activity if a bill introduced by West Coast senators becomes law. Photo courtesy Wikimedia.

California’s senior U.S. senator has introduced a bill that would permanently block fossil fuel exploration on the outer continental shelf along the coasts of California, Oregon, and Washington.

The measure, sponsored by veteran Sen. Dianne Feinstein, D-Calif., was introduced Jan. 4.

In her comments on the Senate floor on the day she introduced S.31 Feinstein highlighted the huge economic impact of coastal counties in California, explaining that they produce 80 percent of the state’s gross domestic product, and said the likely close proximity of any drilling to the beaches makes offshore energy exploration too dangerous.

“The fact is that those of us on the Pacific coast do not want any further offshore oil or gas development,” Feinstein said.

Wildlife conservation concerns are a powerful argument against energy exploration off the Pacific Coast. Among the marine animals that may be adversely affected by oil and natural gas drilling are a variety of sea birds and fish, orcas, otters, salmon, seals, sea lions, and migratory whale species (including blue whales).

Those wildlife resources have previously been harmed by oil extraction in the Pacific.

In 1969 a spill near Santa Barbara polluted the Pacific Ocean with about 3.36 million gallons of crude. That incident remains the most severe oil spill in California’s history and the third-most severe spill in American history.

The Santa Barbara oil spill killed thousands of sea birds and many dolphins, elephant seals, and sea lions. The mortality rate among small marine organisms in the inter-tidal zone was as high as 90 percent.

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This graphic shows the extent of ocean and beach area impacted by the 1969 Santa Barbara oil spill. Map courtesy Wikimedia.

Despite the warning provided by the Santa Barbara oil spill, there are still 24 oil drilling platforms operating in ocean areas off the California coast.

In 1994 the Golden State’s legislature largely  precluded any future drilling leases in the six kilometer-wide band of Pacific waters under its regulatory control. The California Coastal Sanctuary Act allows leasing only if the “State Lands Commission determines that oil and gas deposits contained in tidelands are being drained by means of wells upon adjacent federal lands and leasing of the tidelands for oil or gas production is in the best interest of the State.”

The California State Senate passed a bill in 2015 that would have permanently banned all oil leases off the state’s coast. S.B. 788 was not considered by the state’s General Assembly (a body akin to the House of Representatives in most other states).

California’s State Lands Commission had stopped authorizing nearly all new leases after the Santa Barbara spill.

No fossil fuel exploration in waters of the Pacific Ocean off California’s coast subject to the federal Outer Continental Shelf Lands Act has occurred since 1981. Congress included bans on leasing off California’s coast, as well as offshore of several East Coast states, in annual appropriations bills until 2008.

U.S. Presidents also included California’s (along with Oregon’s and Washington’s) coastal waters in exclusions from leasing included in executive orders. Presidents George H.W. Bush, in June 1990, and William J. Clinton, in June 1998, imposed a ban through 2012.

President George W. Bush lifted that ban by revoking those executive orders on July 14,  2008. He also said that he would veto any bill that continued the practice of banning leases off the coast of California and several other states.

President Barack Obama’s administration has returned to the long-time practice of keeping energy exploration activities away from California’s coast. The most recent five-year leasing plan for the Bureau of Ocean Energy Management precludes any leasing off the Pacific coast of the continental U.S. between 2017-2022.

The factors weighing against energy exploration off the coasts of Oregon and Washington are largely the same as in California.

According to one 2015 report, Oregon’s rural coast region had more than 21,000 jobs directly dependent on tourism, which also generated more than $1.8 billion in economic activity in that part of the state.

As for fishing, the value of the Beaver State’s commercial onshore fisheries was more than $136 million in 2015, according to the state’s Department of Fish and Wildlife, while spending on recreational fishing in coastal counties exceeded $68 million in 2014.

Washington’s coastal economy is similarly dependent on tourism and fishing. In 2011 tourism and recreation contributed about $3.4 billion to the Evergreen State’s “ocean economy,” while fishing is responsible for at least 16,000 jobs and half of billion dollars of economic activity in Washington.

Pacific waters off the coasts of the two northwestern states have not generally been considered likely to produce significant oil resources. In 1964 the Department of Interior issued leases for 2,400 square kilometers of ocean areas off the coasts of Oregon and Washington. Oil companies drilled 13 test wells before those leases expired in 1969.

In 1977 the Department of Interior ranked Oregon and Washington as being lowest among all potential lease areas in the country for “resource potential.” That assessment was essentially confirmed by a 2009 report by Environment America and Sierra Club, which concluded that the amount of oil and natural gas off the Oregon and Washington coasts is “miniscule.”

“The planning area is estimated to contain (i.e., undiscovered economically recoverable resource) approximately 0.3 billion barrels of oil and 1.28 trillion cubic feet of natural gas at recent price estimates, representing about 0.6% of total OCS resources for both oil and gas. At recent prices and usage, the oil and natural gas economically available from the Washington/Oregon planning area could supply the nation with 15 days of oil and 20 days of natural gas with a value of $26 billion.”

Oregon and Washington have nevertheless moved to toughen their laws on offshore energy development.

In 2007 Oregon imposed a three-year moratorium on new exlporatory activity and then, in 2010, extended it for 10 more  years.

Washington law forbids marine oil exploration only in the area “extending from mean high tide seaward three miles along the Washington coast from Cape Flattery south to Cape Disappointment, nor in Grays Harbor, Willapa Bay, and the Columbia river downstream from the Longview bridge . . .”

Feinstein’s co-sponsors include all of the senators representing the three west coast states covered by her bill: Democrats Kamala Harris of California, Jeff Merkley and Ron Wyden of Oregon, and Maria Cantwell and Patty Murray of Washington.

The California senator’s effort to ban drilling off the Pacific coast is not the first attempt she has made. She has introduced similar bills in several previous Congresses. Nor is her bill the first Pacific coast state oil drilling ban to be co-sponsored by West Coast senators.

S.31 has been assigned to the Senate Energy & Natural Resources Committee for consideration. Cantwell and Wyden are members of that committee.

Similar legislation, known as the West Coast Ocean Protection Act, has been introduced in the U.S. House of Representatives by Democrat Jared Huffman of California and 13 co-sponsors. They include California Democratic Reps. John Garamendi, Derek Kilmer, Barbara Lee, Ted Lieu, Alan Lowenthal, Doris Matsui, Jimmy Panetta, Scott Peters, Jackie Speier, Eric Swalwell, and Mike Thompson, Oregon Democrats Earl Blumenauer and Peter DeFazio, and Washington Democrat Suzan DelBene.

 

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House of Representatives clears REINS Act

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The Republican-dominated 115th Congress has launched an assault on the federal government’s system of regulation. A bill passed by the House of Representatives on Jan. 5 would require Congress to approve all administrative rules, including those that limit pollution. Image courtesy Wikimedia.

Republicans eager to take a wrecking ball to the system of administrative law in place for seven decades have moved the second of three bills central to that effort through the U.S. House of Representatives.

The majority GOP pushed through the proposed “Regulations From the Executive in Need of Scrutiny Act” Thursday on a 237-187 vote.

Before doing so legislators adopted several amendments, including one by Rep. Steve King, R-Iowa, that subjects all existing regulations to the requirements that would be imposed by the bill and another by Rep. Luke Messer, R-Ind., that would require agencies to offset the costs of new regulations by repealing or amending those already in effect.

The House rejected Democratic amendments that would exempt regulations that affect children’s health, protect public health and safety, reduce the concentration of lead in drinking water, and assure the safety of children’s toys.

Affecting most regulations issued by federal agencies that might cost business at least $100 million per year in compliance costs, and establishing a 70-day period in which Congress either approves the rule or renders it void, the bill flips on its head the system by which Presidents and their appointees have administered statutes since the 1940s.

Under current law a regulation is valid unless Congress nullifies it, something that is possible to do but rarely accomplished.The existing system of law that governs the way in which all agencies write regulations also provides safeguards to assure that public opinion and appropriate commercial, scientific, or technical information is considered by agencies. The Administrative Procedure Act of 1946, provides for comment periods and required time intervals between proposed and final regulations. Judicial review of regulations is also available in most cases.

By delegating rulemaking to agencies staffed by professional civil service members, Congress has traditionally recognized that those federal government institutions and employees are better suited to write regulations that can often be technical in nature and involve extensive development of a factual record.

H.R. 26 reverses that longstanding approach and instead mandates that Congress, the most politically attuned entity of the federal government, deliberate and decide on the appropriateness or necessity of a regulation.

The bill would also severely limit the time available to Congress to accomplish the task. Aside from the 70-day approval limit, H.R. 26 would also limit the time of debate for any rule under consideration.

Given that it is not unusual for an administration to propose more regulations than there are legislative days in a Congressional session, it is likely that Congress would not be able to keep up with the flow of requests to approve new regulations.

Some critics say that H.R. 26 also sets up a potential constitutional crisis.

First, the measure might constitute an invasion by Congress of the President’s authority to “faithfully execute the laws,” as demanded by Article 2 of the Constitution.

Second, H.R. 26 would establish a form of a legal device called the legislative veto, which the Supreme Court has twice ruled unconstitutional. As explained by Professor Ronald M. Levin of Washington University in St. Louis, an expert on administrative law:

“The problem with the REINS Act is that, with regard to major rules, it would accomplish virtually the same result as the “traditional” one-house veto—namely, it would enable a single house of Congress to nullify an agency rule, regardless of the wishes of the other house, let alone the President. The question, then, is whether the Supreme Court would accept what amounts to a 180 degree change of direction if the one-house veto were repackaged in a different format, even though the risks of unchecked action by the legislative branch would be as great in the later version as in the earlier one. My suggestion is that it would not.”
Other constitutional law scholars have disagreed with this perspective, but at minimum the issue of the validity of the REINS Act would set off a long litigation battle that might pit a current or future President against Congress.

Finally, as David Goldston, a historian and former Congressional staff member now affiliated with Natural Resources Defense Council, wrote Jan. 4, it is possible a federal court would order a regulation to be issued by an agency even as Congress refuses to approve that regulation.

Under the Constitution, a court presumably can’t require Congress to act, so the statute could not be enforced,” Goldston wrote. “But it also would not actually have been repealed.”

The GOP’s first assault on the regulatory system during the 115th Congress came Jan. 4 as H.R. 21, the so-called Midnight Rules Relief Act, cleared the House of Representatives. That bill would give Congress the power to revoke, in one fell swoop, most regulations finalized by the Obama administration since May 2016.

A Senate version of the “Midnight Rules Relief Act” has been referred to that chamber’s Government Affairs and Homeland Security Committee. A militant regulation skeptic, Ron Johnson of Wisconsin, chairs that committee.

Legislators in the U.S. Senate will also consider the proposed REINS Act. S.21 was introduced on Jan. 4 and is sponsored by Republican Rand Paul of Kentucky and 27 other senators.

President-elect Donald J. Trump has said that he will sign the proposed REINS Act if it reaches his desk.

The last bill in the Republicans’ anti-regulatory triumvirate is H.R. 5, which is styled as the “Regulatory Accountability Act of 2017.”

That measure would increase the procedural hurdles to rulemaking and forbid federal judges from deferring, in some circumstances, to agency interpretations of statutes.

Republicans waste no time in re-introducing “Midnight Rules Relief Act”

Republicans intent on erasing regulations finalized in the last months of the Obama administration have already introduced legislation in the 115th Congress that could lead to a wholesale rejection of agency actions since May 2016.

Rep. Darrell Issa, R-Calif., introduced the proposed “Midnight Rules Relief Act” on Tuesday, which was opening day for the new Congress.

The bill would permit Congress to void, by joint resolution, to cast aside multiple regulations in one fell swoop. Regulations would have to be deemed economically “significant” to be subjected to the nullification procedure.

The text of Issa’s bill was not available at the time this post was published. If H.R. 21 resembles similar legislation considered during the 114th Congress, it would apply to regulations finalized during the last six months of a President’s term.

An agency would be permanently barred from again creating any regulation blocked by a joint resolution unless Congress granted permission.

In that sense, the Midnight Rules Relief Act proposal represents a radical shift from existing doctrines of administrative law, which require Congress to attempt erasure of regulations on a one-by-one basis.

Among the regulations that could be eliminated if the Midnight Rules Relief Act clears both chambers of Congress and is signed by President-elect Donald J. Trump after his Jan. 20 inauguration are 19 Environmental Protection Agency rules, 13 Department of Energy rules, and 10 Department of Interior rules.

Under the Congressional Review Act, which was enacted in 1996, Congress can use a joint resolution to eliminate most regulations adopted within a period of about eight months before a new President is inaugurated.

While more than 100 attempts to exorcise regulations through the CRA have been made, only one has succeeded.

Congress can also stamp out regulations by specifying in appropriations bills that they are unenforceable or by amending the statutes that provide authority for the regulations.

The House of Representatives approved an earlier version of the Midnight Rules Relief Act last November.

UPDATE, Jan. 4, 2017, 9:00 pm MST: The House of Representatives passed H.R. 21 Wednesday on a 238-184 vote, according to The Hill. Legislators rejected a Democratic attempt to send the bill back to committee.

UPDATE, Jan. 5, 2017, 5:26 pm MST: Four Democrats voted for H.R. 21 Wednesday night. They are Reps. Henry Cuellar of Texas, Josh Gottheimer of New Jersey, Collin Peterson of Minnesota, and Kyrsten Sinema of Arizona. No Republican opposed the bill.

115th Congress opens Tuesday; assaults on Obama environment regulations, focus on REINS Act expected

Members of the U.S. House of Representatives and Senate will be sworn in today as the Republican-dominated new Congress begins its work, which is expected to include efforts to derail a number of Obama administration environmental regulations and alter the nation’s bedrock environmental laws.

The GOP will hold a 241-194 majority in the House of Representatives, down seven seats from the last Congress. Republicans will dominate each of the key committees that deal with environmental policy matters. Speaker Paul Ryan, R-Wis., said last June that he hopes to rescind many Obama administration regulations by statute, including the Clean Power Plan and “all climate change regulations under the Clean Air Act.”

Ryan has also explicitly called for nullification of the Waters of the United States rule, which extends Clean Water Act jurisdiction to water bodies that are hydrologically connected to rivers and lakes.

Last month, the speaker said that he would fight to rescind Obama’s removal of Atlantic and Arctic ocean waters from oil exploration and drilling.

On the Appropriations Committee, where so-called riders to bills that allow the federal government to spend money have often sought to undermine or nullify protective regulations, New Jersey’s Rodney Frelinghuysen will become chair. President-elect Donald J. Trump’s promises to lower funding for the U.S. Environmental Protection Agency, federal renewable energy programs at the Department of Energy, and climate science research at NASA would be considered by this committee, as well as the Budget Committee.

Rep. Gregory P. Walden, R-Ore., will chair the Energy and Commerce Committee, while public lands opponent Rob Bishop of Utah will continue to helm the Natural Resources Committee.

Walden, who was first elected in 1998 and is the only Republican in Oregon’s Congressional delegation, has said little about his specific plans for the Energy and Commerce Committee. A statement released after his selection as chair on Dec. 1 said that he would push the “Better Way Agenda” proposed by Ryan last year.

Walden’s website says that he supports the REINS Act, legislation that would subject many federal regulations to a requirement of Congressional approval, and that he opposes designation of new wilderness areas in Oregon. Walden’s website also highlights his advocacy of legislative changes intended to increase timber production in national forests.

A July video statement by Walden celebrated passage of legislation that precluded listing of the sage grouse under the Endangered Species Act and designation of a national monument in rural Oregon.

The Natural Resources Committee is expected to consider bills that would reduce or eliminate the President’s authority to declare national monuments on federal land.

Bishop reportedly met with Trump’s transition team last month to discuss ways to roll back President Barack Obama’s declaration of Bears Ears National Monument in Utah, as well as other decisions Obama has made under the Antiquities Act of 1906. The question whether a President lacks the authority to revoke a predecessor’s designation of a national monument has not been tested in court, though a U.S. attorney general’s opinion from the 1930s indicates that he does not have that power. Congress would likely have to pass legislation if it desires to alter or rescind any of Mr. Obama’s national monument designations.

Texas Republican Lamar S. Smith will continue to lead the Science, Space and Technology Committee, which has proven to be an active agent of the GOP’s anti-climate science agenda in recent years.

Among the first priorities to be considered by the House is the proposed REINS Act. That bill has been passed by the Republican-dominated House at least three times, most recently late in 2016, but has been blocked in the Senate each time. It is not clear whether its prospects in the Senate are any better this time than in the past, given that there will be fewer Republicans in the Senate during the 115th Congress than in the just-concluded 114th Congress.

Both chambers are likely to consider Congressional Review Act resolutions to overturn Obama administration environmental regulations.

Vice President Joseph R. Biden, Jr., who remains in office until Jan. 20, will preside over the ceremony welcoming new senators at 12 pm EST. The Republicans will have a 52-48 margin in that chamber.

The Environment and Public Works Committee of the Senate gets a new chair, Wyoming’s John Barrasso, and new ranking member, Delaware’s Thomas Carper.

Alaska’s Lisa Murkowski will again chair the Energy and Natural Resources Committee, with Maria Cantwell of Washington serving as ranking member.

California legislators drop goal to reduce petroleum use in vehicles, bill increasing renewable energy mandate to advance

A California proposal to strive for a fifty percent cut in petroleum-based fuel use by 2030 died this week. Image of Nissan Leaf electric vehicle courtesy Wikimedia.
A California proposal to strive for a fifty percent cut in petroleum-based fuel use by 2030 died this week. Image of Nissan Leaf electric vehicle courtesy Wikimedia.

A proposal to commit California to a goal of reducing motor vehicle petroleum use by 50 percent within 15 years has died.

Democratic Gov. Edmund G. Brown, along with the leaders of the state’s senate and assembly, said at a news conference Wednesday that the provision, which had been included in a more expansive bill aimed at lowering greenhouse gas emissions in the nation’s most populous state, would be removed before the assembly takes up the measure.

“We raced for the Triple Crown but, with the clock ticking, the stakes are way too high to allow the perfect to be the enemy of the great,” Sen. Kevin DeLeon, D-Los Angeles and the chamber’s president pro tempore, said. “And so we have together agreed to amend SB 350 to remove the petroleum section and move forward with the other two sections — which, by any standard, are in and of themselves landmark achievements.”

The bill, known as the Clean Energy and Pollution Reduction Act of 2015, would also require electric utilities to generate half of the power they sell to customers from renewable sources and ask the state to achieve a 50 percent increase in the energy efficiency of buildings.

The petroleum use reduction objective would not have been a mandate to eliminate gasoline- or diesel-powered vehicles or to limit the sale of petroleum-based fuels. Instead, the provision would have relied on fuel economy standards set by the federal government, increased production of electric vehicles, and greater integration of alternative fuel technologies into the motor vehicle market.

Timothy O’Connor, the director of the Environmental Defense Fund’s California Climate Initiative, explained that the proposal was a “marker” for California.

“The goal in the bill was really, in my mind, something that was a coordinating effort of the state’s existing policies aimed at reducing pollution from transportation,” he said.

Brown had called for the objective of cutting California’s petroleum use by 50 percent during an address in January. The state senate agreed to the goal when it cleared SB 350 in June.

The oil industry then launched an all-out public relations attack on the measure, wildly exaggerating its impact in an effort to stir up moderate Democrats in the assembly against it. The industry’s public relations effort falsely labeled the bill as the “California Gas Reduction Act of 2015” and a website set up by the Western States Petroleum Association to advance the industry’s arguments claimed that the petroleum use goal would actually “limit how often we can drive our own cars.”

“The state will also be collecting and monitoring our personal driving habits and tracking how much gas we use,” the website also claims. “They’re now reviewing regulations to force automakers to include data monitoring systems in all cars so that regulators will be able to penalize and fine us if we drive too much or use too much gas.”

O’Connor pointed out that these claims were not supported by the language of the actual bill.

“The oil industry was able to paint this bill as the picture of impossibility,” he said. “It’s simply not true.”

The language in the version of SB 350 adopted by the state senate earlier in the year seems to back up O’Connor’s argument. The bill specified that

“[t]he state board shall adopt and implement motor vehicle emission standards, in-use performance standards, and motor vehicle fuel specifications for the control of air contaminants and sources of air pollution which the state board has found to be necessary, cost effective, and technologically feasible, to carry out the purposes of this division and in furtherance of achieving a reduction in petroleum use in motor vehicles by 50 percent by January 1, 2030, unless preempted by federal law.”

O’Connor believes that California may be able to achieve a fifty percent reduction in petroleum use even if that objective is never codified in the state’s law.

“When we look at the vehicle efficiency standards that are on the books, the alternative energy standards on the books, the local planning efforts, we think we are going to get to a fifty percent petroleum reduction even without it in statute,” he said.

Brown made the same point at Wednesday’s press conference, making clear that his “zeal” to cut carbon dioxide emissions from transportation fuels remains.

“We might get another bill next year, we might just keep doing it by regulation,” he said. “California is not going to miss a beat. Be very clear about that. We don’t have a declaration in statute, but we have absolutely the same authority. We’re going forward.”

Brown was referring to the regulatory power of the state’s Air Resources Board, which enforces federal and state air quality laws within California.

The newly-amended version of SB 350 is scheduled for a vote by the full state assembly today. If adopted, it will return to the state senate and then, if approved there, head to Brown for signature.

UPDATE (Sept. 12, 2015, 3:24 pm MDT): The California Assembly passed SB 350, as amended, on Friday evening. The bill now returns to the state senate.

California legislature sends ivory ban bill to Gov. Jerry Brown

Photo courtesy U.S. Fish & Wildlife Service, photo by Andrea Turkelo
Photo courtesy U.S. Fish & Wildlife Service, photo by Andrea Turkelo

The nation’s most populous state may soon ban the import, purchase, sale, and possession of all products made from ivory and rhinoceros horn.

By a 47-21 vote, the state assembly sent the ban bill, AB 96, to Democratic Gov. Jerry Brown.

The far-reaching measure would close a loophole in California law that exempted ivory products obtained before June 1, 1977.

The United States is thought to be the world’s second-largest importer of ivory products and two large California cities, Los Angeles and San Francisco, are locations that experience a high volume of trade in them.

A federal law called the African Elephant Conservation Act bans the import of almost all ivory, but that statute exempts ivory obtained before 1989.

There is no effective way for customs officials or the U.S. Fish & Wildlife Service to determine the age of imported ivory.

That is the same problem that has impaired the effectiveness of California’s existing law. Because it is easy to declare that ivory in one’s possession was obtained prior to June 1, 1977, and it is difficult to prove otherwise, trafficking in ivory has continued.

About 100 African elephants are poached for their tusks each day and, between 2010-2012, about 100,000 of the animals were illegally killed in their native habitat.

The total number of African elephants has declined from at least several million individuals, and possibly tens of millions, at the beginning of the twentieth century to somewhere between 400,000-700,000 individuals.

The various species of rhinoceros are in deep trouble. Killing of individuals for their horn, which is valued in Asian cultures for medicine but which provides no medical benefit, has caused the reduction of the northern white rhinoceros to four individuals. The population of southern white rhinoceros, also native to Africa, is estimated at about 20,000 individuals, according to the International Union for the Conservation of Nature, while all species of black rhinoceros number about 5,000. Two of the three Asian rhinoceros species – the Sumatran and Javan rhinoceroses – are critically endangered, with total populations under 100 individuals.

Brown has not publicly said whether he will sign AB 96 into law.

House to vote on Senate-passed KXL bill next week

The U.S. House of Representatives will vote next week on whether to adopt the KXL pipeline bill approved by the Senate.

The chamber’s majority leader, Rep. Kevin McCarthy, R-Calif., announced Tuesday his intention to move the controversial proposal to President Barack Obama’s desk.

“Next week we will take up the Keystone pipeline as passed by the Senate and send it to the President’s desk,” McCarthy said during a press conference.

If the House, as expected, passes S.1 without changes, then Obama will soon be in a position to impose a promised veto of the legislation.