Murkowski, Begich offer polar bear listing provision to FY '09 omnibus appropriations bill

WASHINGTON, D.C. – U.S. Sens. Lisa Murkowski, R-Alaska, and Mark Begich, D-Alaska, today introduced an amendment to the Fiscal Year 2009 omnibus spending bill that would maintain the public process for revisions to regulations under the Endangered Species Act.
The omnibus appropriations bill that passed the House of Representatives last week and is before the Senate this week includes language that would allow the administration to withdraw two current rules under the Endangered Species Act (ESA) within 60 days of adoption of the omnibus bill without having to go through any notice or public comment period, and without being subject to any judicial review. The first rule relates to the specific listing of the polar bear, while the second rule deals with regulation of carbon dioxide emissions nationwide, a related issue to the polar bear listing.
Last year the Bush administration listed the polar bear as a threatened species under the ESA.  The listing decision specifically included a provision – permitted by Section 4(d) of the ESA -- that prevented oil or gas or subsistence hunting from being impacted by any action plan that the Department will craft to remedy bear population issues in the future. This provision was added after full public comment and was based on a full scientific review.
The Murkowski-Begich amendment would require that if the secretaries of the Interior and Commerce Departments withdraw or reissue the current rules under the ESA, the action would be subject to the requirements of the Administrative Procedures Act (APA), with at least a 60-day comment period.
“Withdrawal of the existing rule could mean that any increase in carbon dioxide or any greenhouse gas, anywhere in the country could be subject to legal challenges asserting that those activities are harming a polar bear, or that there has not been sufficient consultation with the U.S. Fish and Wildlife Service regarding activities that are funded, carried out or authorized by the federal government,” Murkowski said. “The Center for Biological diversity has already stated that it wants to use the polar bear listing to regulate greenhouse gases. While I believe lawsuits by environmental groups would eventually overreach and cause a backlash against the ESA, massive economic harm could result before Congress steps in to remedy the situation.”
“Without this amendment, the provision inserted in the House allows the secretaries to make dramatic changes in rules and regulations without having to comply with multiple, long-standing federal laws that require public notice and public comment by the American people and knowledgeable scientists,” Sen. Begich said. “These changes have the potential for far-reaching and unintended consequences on our economy.”
The existing rules were the result of a lengthy public process that fully complied with all applicable laws—including the APA.  The senators believe that any withdrawal or other modification of these rules should similarly be conducted in a transparent and orderly process, in full compliance with the APA.
The U.S. Fish and Wildlife Service has stated that oil and gas development in the Arctic and Alaska Native subsistence activities were not the cause of the polar bear’s endangered species listing and are not affecting polar bear populations. In fact, populations of polar bears in both the Beaufort and Chukchi Sea areas have risen by more than 500 bears since 1972 and the only evidence of declines in recent years has been anecdotal.