REINS Act set for imminent floor vote in U.S. House of Representatives

Republicans in the U.S. House of Representatives continued their early moves in the young 115th Congress to limit executive branch regulatory power and roll back regulations by setting up the so-called REINS Act for consideration on the floor of the chamber.

The proposed new administrative law statute would require that Congress approve, by joint resolution, all “major” rules – defined as causing an annual financial impact of at least $100 million to the U.S. economy – before they can take effect.

Such an approach to regulation would be a dramatic departure from current law. Under the Administrative Procedure Act of 1946, agencies are delegated broad authority to write regulations.

Congress can step in to nullify them through use of the Congressional Review Act, a statute enacted in 1996 that requires each chamber to pass a resolution for each disapproved rule and the President to sign such resolutions if regulations are to be nullified.

On Wednesday the House Rules Committee approved the rules that will guide consideration of H.R. 26 when both the Committee of the Whole (the term for the entire membership of the House of Representatives on the first reading of a bill) and the House will consider the measure.

One hour of total debate time, to be shared by Republicans and Democrats will be permitted. Twelve amendments will be considered.

Several amendments to be offered by Democrats would limit the scope of the far-reaching legislation.

One by Rep. John Conyers, D-Mich., would exempt regulations that limit lead in drinking water from the bill’s requirements. Another by Rep. Frank Pallone, D-NJ, would remove regulations that are designed to improve the safety of pipelines or prevent, mitigate, or reduce oil or natural gas spills.

Rep. Jerrold Nadler, D-NY, will ask the House to adopt language that exempts rules relating to nuclear reactor safety.

An amendment by the ranking member of the Natural Resources Committee, Raul Grijalva of Arizona, would require agencies to provide an “accounting of the greenhouse gas emission impacts associated with a rule as well as an analysis of the impacts on low-income and rural communities.” Grijalva’s amendment, if adopted, would specify that a rule is “major” under the bill if it “increases carbon dioxide by a certain amount or increases the risk of certain health impacts to low-income or rural communities.”

A similar tack is taken by Rhode Island’s David Cicilline, who will propose removal of all rules that relate to “the protection of public health or safety” from the proposed REINS Act. An amendment to be offered by Rep. Kathy Castor of Florida would eliminate from the reach of the proposed law all regulations that “result in reduced incidence of cancer, premature mortality, asthma attacks, or respiratory disease in children.”

Some Republicans, on the other hand, appear intent on toughening the requirements to regulate even further.

An amendment by Rep. Luke Messer, R-Indiana, would require agencies to offset the costs to the economy of new rules by modifying or eliminating old ones, while Rep. Steve King of Iowa will suggest that the bill include language that gives Congress a vehicle for reviewing all regulations finalized during the past ten years.

A schedule posted on the website of House majority leader Kevin McCarthy, R-Calif., indicates that the proposed REINS Act was to be considered on the floor of the chamber starting Thursday at 10 am EST.

 

 

Kazakhstan, Zambia, Cuba, Kenya join Paris Agreement

Four more nations ratified the Paris Agreement on climate change in December, bringing the number that have done so to 121.

Kazhakstan notified the United Nations of its formal adoption of the accord on Dec. 6.

Zambia was next, formally agreeing to the Paris Agreement on Dec. 9.

Cuba and Kenya ratified the landmark Dec. 2015 international agreement on Dec. 28.

The Paris Agreement took effect Nov. 4, 2016. Adopting nations agree to prepare Nationally Determined Contributions to the reduction of atmospheric greenhouse gases.

Oregon governor wants an idea other than sale of state forest to raise school funds

Oregon Gov. Kate Brown suggested on Dec. 13 that the state’s Land Board should look for an alternative to the sale of Elliott State Forest as a way to raise funds to support public schools.

The proposed sale of the forest, which accounts for about two-thirds of the lands that support the Beaver State’s Common School Fund, has drawn one bid. The Cow Creek Band of Umpqua Indians and Lone Rock Timber Management Co. of Roseburg offered to pay about $220 million for the forest, which includes about 84,000 acres.

“Oregon’s public lands – our forests, parks, and beaches – are irreplaceable assets,” Brown said. “Even in the face of complicated challenges, we must strive to protect the values that Oregonians hold dear. Those include hunting, fishing, and hiking in the woods; they include the habitat for the marbled murrelet, northern spotted owl, and coastal coho salmon; and they include jobs critical to our rural economies.”

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Elliott State Forest, Oregon – image courtesy Oregon Department of Forestry

The governor suggested that the Land Board, on which she serves as one of three members, instead consider the use of bonding authority in an amount up to $100 million as a way to contribute financially to the Common School Fund.

Located in the southwestern region of the state, the Elliott State Forest was the first established in Oregon’s system of state forests.

The proposed sale is not the only reason that the state’s management of the forest has been controversial. In 2011 the Land Board decided to increase the annual timber harvest there, increasing the annual harvest from 25 million to 40 million board feet and granting timber companies more latitude to engage in clear cutting.

The question whether a private purchaser of Elliott State Forest would be able to harvest timber there received new attention later in December as a federal judge in Eugene blocked an effort to clear-cut 49 acres.

U.S. district judge Ann Aiken found that the proposed timber extraction by Scott Timber Co., a subsidiary of the giant Roseburg Forest Products, would likely harm the marbled murrelet (Brachyramphus marmoratus).

B. marmoratus is a crepuscular sea bird and a member of the auk family. It nests in old-growth trees in forests along the country’s west coast from Alaska to south-central Florida.

Listed as a threatened species in California, Oregon, and Washington by the U.S. Fish & Wildlife Service since 1992, the Oregon Department of Fish and Wildlife is considering a petition that asks it to shift B. marmoratus from threatened to endangered status under state law.

“This demonstrates the incredible cynicism that underpins the state’s efforts to sell the Elliott off to private timber interests,” Bob Sallinger, conservation director of Portland Audubon Society, said. “Not only does it put fish and wildlife species at risk and eliminated use for future generations, but it also is predicated on those private timber companies returning to the illegal logging practices that the state was forced to abandon.”

The Oregon State Land Board may decide at its February meeting whether to adopt Brown’s proposal.

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The marbled murrelet is a reclusive sea bird that relies on old-growth forests, such as Oregon’s Elliott State Forest, for nest sites. Image courtesy U.S. Fish & Wildlife Service.
 

 

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.

Colorado predator control decision sparks controversy

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This undated photo shows a mountain lion resting in a tree somewhere in Colorado. Image courtesy Colorado Parks & Wildlife.

The  Colorado commission responsible for management of wildlife decided Dec. 14 to approve a program demanding that up to 15 more mountain lions and 25 more black bears be killed every year.

Individual animals will first be captured by U.S. Department of Agriculture Wildlife Services employees with cage traps, culvert traps, foot snares, and hunting dogs. They will then be shot.

Killings will largely occur in the Arkansas River and Piceance basins.

The predator control plan is intended to prop up the number of mule deer available for hunters to target. At present the population of mule deer is at about 80 percent of that considered desirable by Colorado wildlife officials.

Mule deer have been declining throughout the west since the 1980s.

Loss of habitat to livestock grazing, expansion of human development in rural areas, and the impacts of oil and gas exploration are considered to have a greater impact on the number of mule deer in the state than does the population of mountain lions and black bears.

CPW has not denied that these factors may have far more to do with mule deer declines than predator populations.

“We acknowledge that any and all those things can have an effect on mule deer,” Jeff Ver Steeg, the agency’s assistant director for research, policy, and planning, told commissioners at the Dec. 14 meeting.

Conservationists and scientists have sharply criticized the decision by the Colorado Parks & Wildlife Commission.

Aubyn Royball, Colorado state director for the Humane Society of the United States, told commissioners that their decision would cause the inevitable death of numerous cubs and kittens.

In a letter dated Nov. 30, 21 biologists accused the commission of considering a program that lacks validity as an effort to understand the relationship between predators and prey species and that violates the state’s legal requirement to manage wildlife as a public trust.

Colorado Parks & Wildlife, the agency under the commission’s oversight, relies heavily on the sale of hunting and fishing licenses for revenue. The agency relies on that source of funds for about 90 percent of its revenue.

CPW’s total budget in fiscal year 2015 was about $213 million. The agency has experienced a cut of about $50 million since 2009.

The experimental predator control program approved Dec. 14 would cost taxpayers about $4.5 million over nine years.

CPW said in October that it expects a budget shortfall of between $15-23 million by 2023. It has proposed increasing hunting license fees.

Hunters kill more than 450 mountain lions and more than 1,350 black bears every year in Colorado.

CPW estimates that there are about 17,000 black bears and about 4,500 mountain lions in the state.

National monument designations, 2009-2017

National Monument Date Established or Enlarged Land or Marine? State, Territory, or Ocean Size (acres) Notes Link to Proclamation
Basin and Range 7/10/2015 Land Nevada 704,000 https://tinyurl.com/jfqgpyy
Bears Ears 12/28/2016 Land Utah 1,350,000 https://tinyurl.com/j5rfg4h
Belmont-Paul Women’s Equality 4/12/2016 Land Washington, D.C. <1 https://tinyurl.com/zn73ju3
Berryessa Snow Mountain 7/10/2015 Land California 330,380 https://tinyurl.com/j7ujohj
Browns Canyon 2/1/2015 Land Colorado 21,586 https://tinyurl.com/jndlox3
Castle Mountains 2/12/2016 Land California 30,920 https://tinyurl.com/hkd4c83
Cesar Estrada Chavez 10/8/2012 Land California 11 https://tinyurl.com/hfbamyr
Charles Young Buffalo Soldiers 3/25/2013 Land Ohio 60 https://tinyurl.com/h6vztnb
Chimney Rock 9/21/2012 Land Colorado 4,722 https://tinyurl.com/zna8345
First State Historical Park 3/25/2013 Land Delaware 1,108 https://tinyurl.com/z9gmybq
Fort Monroe 11/1/2011 Land Virginia 325 https://tinyurl.com/h8wz4rt
Fort Ord 4/20/2012 Land California 14,651 https://tinyurl.com/j5oae3s
Gold Butte 12/28/2016 Land Nevada 300,000 https://tinyurl.com/jrdstc7
Harriet Tubman Underground Railroad 3/25/2013 Land Maryland 11,750 https://tinyurl.com/hrvfhvr
Honouliuliu 2/9/2015 Land Hawaii 123 https://tinyurl.com/gq4t6j3
Katahdin Woods and Waters 8/24/2016 Land Maine 87,563 https://tinyurl.com/jjp3fbf
Mojave Trails 2/12/2016 Land California 1,600,000 https://tinyurl.com/gm7ykkn
Northeast Canyons and Seamounts 9/15/2016 Marine Massachusetts – Atlantic 4,913 https://tinyurl.com/zhssztt
Organ Mountains-Desert Peaks 5/21/2014 Land New Mexico 496,330 https://tinyurl.com/zvt9owo
Pacific Remote Islands 9/25/2014 Marine Guam – Pacific enlarged from 86,888 to 408,301 sq. mi. https://tinyurl.com/zxlwtdm
Papahānaumokuākea 8/26/2016 Marine Hawaii – Pacific enlarged from 140,000 to 582,578 sq. mi. https://tinyurl.com/z5bvc2o
Point Arena-Stornetta Public Lands 3/11/2014 Land California 1,665 enlargement of California Coastal National Monument https://tinyurl.com/jafyea2
Prehistoric Trackways 3/30/2009 Land New Mexico 5,255 legislation
Pullman 2/19/2015 Land Illinois 203 https://tinyurl.com/hr2uleo
Rio Grande del Norte 3/25/2013 Land New Mexico 242,555 https://tinyurl.com/h6ordoo
San Gabriel Mountains 10/10/2014 Land California 346,177 https://tinyurl.com/z3harl7
San Juan Islands 10/8/2012 Land Washington 970 https://tinyurl.com/zaeeqky
Sand to Snow 2/12/2016 Land California 154,000 https://tinyurl.com/gqkgeb6
Stonewall 6/24/2016 Land New York 8 https://tinyurl.com/jne54kz
Tule Springs Fossil Beds 12/19/2014 Land Nevada 22,650 legislation
Waco Mammoth 7/10/2015 Land Texas 7 https://tinyurl.com/j9o3qca

Obama declares national monuments in Nevada and Utah

President Barack Obama gave a late Christmas present to environmental protection advocates and Native American tribes by declaring federal land in Nevada and Utah as national monuments.

The Dec. 28 move by the White House covers about 1.64 million acres of Bureau of Land Management and USDA Forest Service land. Included are about 300,000 acres in Nevada and about 1.35 million acres in southeastern Utah.

“Today’s actions will help protect this cultural legacy and will ensure that future generations are able to enjoy and appreciate these scenic and historic landscapes,” Obama said in a statement.

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This map of the new Gold Butte National Monument in Nevada shows its close proximity to the Grand Canyon-Parashant National Monument in Arizona and Lake Mead National Recreation Area. Map courtesy U.S. Bureau of Land Management.

The new Nevada preserve, to be known as Gold Butte National Monument, is in Clark County, northeast of Las Vegas. A fact sheet released by the White House pointed to its importance as a connective corridor between Lake Mead Recreation Area and Grand Canyon-Parishant National Monument in northern Arizona.

Obama, in the formal proclamation creating the national monument, specifically highlighted the area’s Native American artifacts, 19th century ranch buildings, artifacts from the Spanish exploration of the area centuries ago, fossilized dinosaur tracks, and wildlife habitat.

“The Gold Butte area contains an extraordinary variety of diverse and irreplaceable scientific, historic, and prehistoric resources, including vital plant and wildlife habitat, significant geological formations, rare fossils, important sites from the history of Native Americans, and remnants of our Western mining and ranching heritage. The landscape reveals a story of thousands of years of human interaction with this harsh environment and provides a rare glimpse into the lives of Nevada’s first inhabitants, the rich and varied indigenous cultures that followed, and the eventual arrival of Euro-American settlers. Canyons and intricate rock formations are a stunning backdrop to the area’s famously beautiful rock art, and the desert provides critical habitat for the threatened Mojave desert tortoise.”

– Presidential Proclamation: Establishment of the Gold Butte National Monument, Dec. 28, 2016

Among the species that will benefit from the increased restrictions on natural resource use that comes with the national monument designation are Mojave desert tortoise, mountain lions, and desert bighorn sheep.

The designation of Gold Butte National Monument was pushed for many years by outgoing U.S. Senate majority leader Harry Reid, D-Nev. Reid said in a statement that the new national monument represents what “Nevada once was.”

gold-butte-national-monument-photo-by-wendy-harrell-courtesy-blm
This photo shows some of the land included in the new Gold Butte National Monument. Image courtesy U.S. Bureau of Land Management, photo by Wendy Harrell.

Gold Butte National Monument is the third one to be designated by Obama in Nevada.

In July 2015 the President designated Basin and Range National Monument there. That preserve includes 704,000 acres in two remote southeastern counties.

In 2014 Obama declared the Tule Springs Fossil Beds National Monument, which encompasses 22,650 acres of land containing Ice Age-vintage paleontological artifacts.

The Utah preserve will be known as Bears Ears National Monument.

Named for two buttes that have similar names in several Native American languages, the protection of cultural artifacts the new national monument affords has been avidly sought by the region’s tribes for at least eight decades.

bears-ears-buttes
The Bears Ears buttes are the namesake of a new national monument in Utah. Photo courtesy Bears Ears Inter-Tribal Coalition, photo by Tim Peterson.

More than two dozen tribes, representing native Americans across the U.S, had asked Obama to preserve about 1.9 million acres in the Bears Ears area.

Long heralded as one of the few remaining unspoiled areas in the West, the region has experienced a significant increase in vandalism and looting of sacred sites. The  National Trust for Historic Preservation named it one of the 11 most endangered historic sites in the U.S. last year, specifically noting that BLM has lacked both funds and staff needed to protect its archaeological resources.

Obama’s proclamation establishing the preserve paid homage to the area’s importance to the country’s indigenous peoples:

“For hundreds of generations, native peoples lived in the surrounding deep sandstone canyons, desert mesas, and meadow mountaintops, which constitute one of the densest and most significant cultural landscapes in the United States. Abundant rock art, ancient cliff dwellings, ceremonial sites, and countless other artifacts provide an extraordinary archaeological and cultural record that is important to us all, but most notably the land is profoundly sacred to many Native American tribehttps://wordpress.com/post/naturalresourcestoday.org/4571s, including the Ute Mountain Ute Tribe, Navajo Nation, Ute Indian Tribe of the Uintah Ouray, Hopi Nation, and Zuni Tribe.”

– Presidential Proclamation: Establishment of the Bears Ears National Monument, Dec. 28, 2016

At the core of Bears Ears National Monument is Cedar Mesa, which includes at least 56,000 cultural artifacts, the vistas of Muley Point, and the origin of at least twelve canyons. Some of the native artifacts there date back at least 12,000 years.

muley-point-looking-south-photo-courtesy-wikimedia
This photo shows the vista from Muley Point, looking toward the south. Image courtesy Wikimedia.

In addition to the Bears Ears buttes, the new national monument includes the Abajo Mountains and Elk Ridge, Beef Basin, Chimney Rocks, Comb Ridge, Indian Creek and Harts Draw, Moqui Canyon, Mancos Mesa, Nokai Dome, Red Canyon, Valley of the Gods, White Canyon, and the confluence of the San Juan and Colorado rivers.

bears-ears-national-monument-map
This map shows the proximity of Bears Ears National Monument to Arches National Park, Canyonlands National Park, Glen Canyon National Recreation Area, and several tribal nations. Map courtesy U.S. Bureau of Land Management.

Obama’s proclamation also gave Native Americans a formal role in management of the new national monument, a first under the Antiquities Act, by establishing a commission of tribal leaders to advise BLM and USDA Forest Service land managers in the region.

Bears Ears National Monument will protect more than cultural assets. The area also includes arches, canyons, hoodoos, and natural bridges, making it geologically unique, as well as fossils that extend from Earth’s Permian period through the Paleozoic and Mesozoic eras of geologic time.

petroglyph-comb-ridge-bears-ears-photo-by-josh-ewing-photo-courtesy-bears-ears-intertribal-coalition
This image shows petroglyphs on Comb Ridge. Photo courtesy Bears Ears Inter-Tribal Coalition, photo by Josh Ewing.

Environmentalists, too, lauded Obama’s move.

In preserving the iconic Bears Ears, President Obama has made conservation history,” Rhea Suh, the president of Natural Resources Defense Council, said in a statement. “These lands will now be safe from mining, drilling and other threats.”

Opponents of Bears Ears National Monument, including Republicans in the Utah Congressional delegation, promised a fight over the designation.

Rep. Rob Bishop and Jason Chaffetz, both of whom represent rural regions of the Beehive State, introduced in a bill during the 114th Congress that would have set aside some of the Bears Ears region as wilderness. Native American leaders did not support it, however, after concluding that their perspective was not being considered by the two anti-public land congressmen.

Bishop and Chaffetz incorporated their “Public Lands Initiative” into a bill, H.R. 5780, that cleared the House Natural Resources Committee but did not receive a floor vote. It is not clear whether it could pass the U.S. Senate, though Utah’s two senators have also expressed opposition to Obama’s move.

Deseret News reported Dec. 29 that Chaffetz, in his role as chair of the House Oversight and Government Operations Committee, demanded that the administration turn over documents relating to the designation of both Bears Ears National Monument and Gold Butte National Monument.

The state’s attorney general also announced on Dec. 28 that he would sue in an effort to obtain a federal court order overturning Obama’s action in creating Bears Ears National Monument.

No obvious precedent indicates that such a lawsuit would succeed. The U.S. Supreme Court has, on several occasions, upheld unilateral Presidential authority to designate national monuments, even in cases of large swaths of public land such as the Bears Ears region.

Obama has now designated or increased the size of 29 national monuments that include more than 550 million acres of land or sea. He has made the second-most use of the Antiquities Act of 1906, following only President Franklin D. Roosevelt.