Dan Rohlf on CPRBlog {Bio}
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Ken Salazar's Mixed Legacy

Secretary of Interior Ken Salazar will leave a decidedly mixed legacy from his four years at the helm of the federal department responsible for protecting many of America’s vast open spaces, treasured parks, and disappearing wildlife. 

Salazar’s Interior Department enjoyed some high-profile successes and on occasion took action to better protect important resources. It reached a multi-billion dollar settlement in the long-running and contentious Cobell litigation, a massive class action suit by Indian tribal members over government mismanagement of revenue from tribal resources. The Department under Salazar established seven new national parks and 10 new wildlife refuges.

But in many areas, while Interior took steps to respond to crises and restore some of the protections for land and wildlife that had languished for nearly a decade, it missed important opportunities to keep pace with twenty-first century threats to natural resources.

Salazar’s record on oil and gas development provides a good example. He angered Republicans and industry officials when he rolled back sweetheart oil and gas leases in Utah issued in the waning months of the Bush Administration. Confronted by the epic Deepwater Horizon spill, Salazar implemented a controversial moratorium on offshore drilling and overhauled the federal agency responsible for managing federal oil and gas leasing and development. On the other hand, Interior reforms ultimately stopped well short of those needed to better prevent future large oil spills, and the Department ramped up both on and offshore oil and gas leasing in the Arctic.

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Draft ESA Listing Policy Suggests "Museum Piece" Approach to Species Conservation

A draft policy released for comment last week by the U.S. Fish and Wildlife Service and National Marine Fisheries Service took on the challenging question of defining the circumstances under which only a portion of an ailing species may be eligible for federal protection under the Endangered Species Act. Unfortunately, the Services’ proposal continued the agencies’ trend toward restrictively interpreting the ESA’s listing provisions. If finalized, the new policy will likely result in fewer protections for formerly widespread species, such as gray wolves, that now inhabit only a fraction of their former range.

The ESA defines “endangered species” as species in danger of extinction “throughout all or a significant portion of its range.” Litigation over the past decade raised a host of questions as to exactly what Congress meant by the latter phrase: Can the Services list a species as threatened or endangered in only a “significant portion” of its range even if the species is doing relatively well in other portions of its range? Does the “range” of a species mean its historic range or its current range? And just what is a “significant portion” of a species’ range?

Though such questions may seem rather arcane, they go to the heart of significant listing controversies under the ESA. Perhaps the highest profile dispute involves gray wolves, which last year became the first species delisted by Congressional fiat (though only in the Northern Rocky Mountains) in response to court decisions overturning FWS attempts to delist that population of the species. Wolves once roamed throughout much of North America, but were reduced to scattered remnant populations due to habitat loss and a persistent drive to exterminate them. They were listed as endangered in 1967 under a predecessor to the ESA. After reintroduction efforts in the 1990s established wolf populations in the Yellowstone ecosystem and central Idaho, FWS attempted to remove the Northern Rockies wolf population from the endangered roll even though the three populations in existence (including the northern Rockies in and around Glacier National Park in Montana) inhabited only a small fraction of the area over which wolves once roamed. But conservation advocates pointed out that wolves remained absent in a significant portion of their historic range, which they asserted meant that the species still fit into the ESA’s definition of endangered.

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Score: Utah 2, BLM Wilderness Protection 0

Few things in politics are certain, but it’s a safe bet that Barak Obama will not carry the state of Utah in his 2012 re-election bid. But despite its dismal electoral prospects in the state, the Obama Administration knuckled under to pressure from Utah and other western Republicans this week when Secretary of Interior Ken Salazar did an about-face on the Bureau of Land Management’s “Wild Lands” policy. The policy, announced by the Secretary less than six months ago, allowed BLM to designate specific lands with wilderness characteristics for protection under agency management plans. Specific protections would have been identified in the planning process open to public participation.

The Wild Lands policy filled a gap in BLM’s land management authority created when Gale Norton, one of Salazar’s predecessors during the George W. Bush Administration, entered into a legal settlement with Utah under which BLM agreed to cease designating “wilderness study areas.” WSAs are designated areas on BLM lands found to have wilderness characteristics and managed by the agency “consistent with” wilderness until Congress decides whether to officially designate them as wilderness or “release” them for multiple use management. In December, 2010, Salazar emphasized the settlement “never should have happened” and issued an order allowing BLM to once again administratively designate land to be managed to protect wilderness values through the agency’s planning process.    

Salazar’s move infuriated western Republicans, who promptly attached a provision to April’s budget deal funding the federal government that forbade BLM from spending any money to implement the Wild Lands policy. As usual, the state of Utah was a particularly vocal opponent of the Obama Administration’s bid to resume protecting wilderness values. 

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Tester: Don't Get the (Toxic) Lead Out

In an impressive effort to demonstrate that crafting bad environmental legislation knows no partisan boundaries, Democratic Senator John Tester of  Montana – who recently spearheaded a successful effort to remove wolves from the endangered species list through a budget maneuver – last month introduced legislation to block the Environmental Protection Agency from regulating lead ammunition under the Toxic Substances Control Act (TSCA). Several environmental organizations last year petitioned EPA to mandate the use of non-lead bullets and shot, noting that traditional bullets used by hunters spread lead fragments throughout the environment, poisoning a wide variety of non-target birds and other wildlife, including critically imperiled species such as California condors.

Tester claims that his legislation would protect hunters when “Washington DC’s rules get in the way of common sense.” But it’s actually the status quo that’s a nonsensical health hazard for hunters and their friends and families, particularly children who eat game shot with lead-laden ammunition. It’s not as simple as removing the bullet from the carcass, because bullets fragment, contaminating the animal meat with lead. Believed by historians to have contributed to the fall of the Roman Empire – which effectively poisoned itself with lead in plumbing and food containers -- the metal causes a wide variety of harm to people, including decreased IQ in children, nervous system impairment, impacts to hearing and sight, and kidney disease.   In one study demonstrating the extent of human exposure from lead bullets, the Center for Disease Control and Prevention tested 736 people, mostly adults, in six North Dakota cities and found that those who ate wild game had 50 percent more lead in their blood than those who did not eat it.

Birds are particularly susceptible to lead poisoning, with millions of them injured or killed each year as a result of lead exposure. California condors, rescued from the brink of extinction 30 years ago and reintroduced into portions of their former range in California and Arizona, are often killed or injured due to high lead poisoning because they feed exclusively on carrion, often animals killed – but either discarded or not retrieved – by sport hunters or landowners and professional hunters  controlling feral pigs or other invasive species. While the state of California has banned most uses of lead ammunition within condors’ range, the birds continue to suffer from lead poisoning, likely due to inadequate implementation and enforcement of these state restrictions.  Arizona encourages hunters to use non-lead ammunition within condor habitat, but the voluntary program has made little headway in protecting the birds.

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Vitter and Bishop Bills Aim to Weaken Enforcement of Existing Environmental Protections

A student-run environmental group operating out of a 150-square-foot office at Lewis and Clark Law School in Portland, Oregon has an important lesson to teach congressional Republicans.

In 2004, the Northwest Environmental Defense Center – a small group with an annual budget of a few thousand dollars and a single staff member – secured more fines for violations of pollution control laws than the collective efforts of 110 enforcement personnel at the State of Oregon’s Department of Environmental Quality. NEDC student volunteers investigate illegal polluters – as well as actions by state and federal agencies that violate environmental laws – and turn over worthwhile cases to local attorneys who work for the group on a pro bono basis. The attorneys recruited by NEDC, many of whom are recent law school grads still paying off their own student loans, are able to spend the long hours necessary to press the group’s enforcement cases because the volunteer lawyers can recover their fees if they ultimately prevail – which they often do.

It is a perfect example of the polluter pays principle. Polluters and government agencies which themselves ignore environmental regulations are forced to foot the bill for enforcement of the laws they’ve flouted. And Oregonians come out ahead by getting cleaner air and water at no cost to state taxpayers.

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The President Muffed it on Salmon

In his State of the Union speech to Congress Tuesday night, President Obama suggested that reducing inefficient federal bureaucracy can help reduce federal spending and promote economic growth. Stretching to find a lighthearted example of government ineptness, the President quipped that “the Interior Department is in charge of salmon while they're in fresh water, but the Commerce Department handles them when they're in saltwater. And I hear it gets even more complicated once they're smoked."

This remark may have elicited chuckles in the Capitol building, but really it's not so funny for the parts of the country where salmon conservation raises significant environmental and economic issues.

Critics have rightly jumped on the line (see Earthjustice, Slate). First, the President got his bureaucratic story mostly wrong. On the west coast, Pacific salmon are under the jurisdiction of the National Oceanic and Atmospheric Administration (NOAA) – an agency within the Department of Commerce – regardless of whether they are in the ocean as adults, or struggling to pass safely upriver through a gauntlet of federal dams to reach their spawning grounds (the more lethal trip, actually, is typically when young fish must try to avoid the dams' turbines on their way downriver to the ocean). The U.S. Fish and Wildlife Service (FWS) manages some hatcheries designed to mitigate for habitat damage caused by the federal dams, but unfortunately hatcheries can themselves contribute to the threats faced by wild salmon runs.

On the east coast, NOAA and FWS share responsibility for managing Atlantic salmon; the two agencies worked out this arrangement when the few remaining salmon runs on the eastern seaboard declined to the extent that they were listed under the Endangered Species Act. Salmon in the East thus joined their Pacific cousins on the rolls of threatened and endangered species; since the early 1990s, NOAA has placed many of the West’s remaining salmon runs outside Alaska on the ESA’s protected lists, and the federal government, states, and tribes are spending millions of dollars on efforts to restore these fish. 


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The "State Sovereignty Wildlife Management Act" is as Ridiculous as it Sounds

Apparently feeling their oats after the Republicans captured control of the U.S. House in November’s elections, several GOP representatives from western states are already galloping out of the gates to attempt to roll back species protections in the West. They’ve initially set their sights on gray wolves in the Northern Rocky Mountains, which were returned to the Endangered Species Act’s protected list by a court decision in August.

A leader of the anti-wolf posse is Rep. Rob Bishop of Utah, who introduced bills last week to delist wolves in Utah – and everywhere else for good measure. Riding flank for Bishop is Rep. Denny Rehberg (R-Mont.), who declared that "returning wolf management to the states isn't a partisan issue that pits Republicans against Democrats. It's about states' rights." However, so far no House Democrats have joined the group of Republican gunslingers in co-sponsoring the bills.

Western Republicans in the House are up in arms about wolves in part because they pin the blame on the predators for declines in elk and deer populations; the states of both Wyoming and Idaho have issued reports blaming wolves for ungulate declines. Other scientists, however, have pointed the finger at climatic extremes and the actions of another dangerous critter – western lawmaker's own gun-toting constituents.  A report released in November by Oregon’s department of fish and wildlife concluded that illegal take of deer is equal to the number of animals killed lawfully.

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FWS' Critical Habitat Area Designation for Polar Bears is Good News, but How Much Difference Will it Make?

First the good news: the U.S. Fish and Wildlife Service (FWS) last week designated a huge expanse of barrier islands, denning areas, and sea ice in the Arctic as “critical habitat” for polar bears under the federal Endangered Species Act. The largest such protected area in the ESA’s history, the new critical habitat covers an area larger than the states of Oregon and Washington combined.

FWS listed polar bears as “threatened” in 2008, after a petition from environmental organizations and a study by the U.S. Geological Survey indicated that shrinking sea ice caused by climate change could reduce the polar bear population by two-thirds within fifty years. Polar bears have since become a powerful symbol of the overwhelming threats to species and ecosystems posed by global warming.

Critical habitat under the ESA refers to the area containing the biological and physical features essential to the recovery of listed species. While the Bush Administration was extremely reluctant to designate adequate critical habitat for threatened and endangered species, the Obama Administration has indicated that it is much more willing to follow the letter of the law in delineating habitat that needs special legal protection. 

Now the bad news: an unfortunate combination of FWS policy and a recent court decision may mean that the massive new critical habitat designation will actually afford polar bears little in the way of new legal protections.

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What if MMS Had Followed the Law When Considering the Deepwater Horizon Permit?

As millions of gallons of oil continue to pour into the Gulf of Mexico, the Washington Post and New York Times reported that the Minerals Management Service (MMS) – the agency within the U.S. Department of Interior that oversees offshore oil and gas leasing and development – mostly ignored some of the country’s most important environmental laws when it gave the green light to Deepwater Horizon and other offshore drilling.

The Endangered Species Act requires federal agencies to consult with the National Marine Fisheries Service (NMFS) when they take or approve actions that may adversely affect species listed as threatened or endangered. Though MMS has acknowledged that oil and gas drilling is likely to adversely affect protected sea turtles, sperm whales, and Alabama sturgeon, the Post and Times reported that the agency failed to consult with NMFS prior to issuing permission for the Deepwater Horizon drilling. The papers also reported that MMS pressured agency biologists to reverse findings that drilling might harm marine mammals and endangered species, and that the agency has issued three huge lease sales and hundreds of approvals for offshore drilling since January 2010 without complying with the ESA.

MMS has also virtually ignored its responsibilities under the National Environmental Policy Act (NEPA), which requires agencies to assess the environmental consequences of their actions prior to going forward. Incredibly, MMS approved the Deepwater Horizon drilling based on a “Categorical Exclusion” under NEPA, a designation given to projects that “do not individually or cumulatively have a significant effect on the human environment” (40 CFR § 1508.4) and thus require no Environmental Impact Statement.

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Republicans Senators Target Fee Recoveries in Public Interest Suits Against Federal Agencies

A small group of Senate Republicans – most from conservative western states – have introduced a bill (available via E&E, subs. required) that would require the federal government to annually disclose a list of attorney fee awards it has given to allow public interest plaintiffs to recover expenses when they have successfully challenged decisions of federal agencies. Introduction of the bills was prodded by allegations from Karen Budd-Falen, a Wyoming-based attorney whose firm represents a variety of resource user groups, that environmental organizations are receiving “billions” of dollars from the federal government through attorney fee awards authorized under fee-shifting provisions of federal law, as well as through the Equal Access to Justice Act (EAJA).

EAJA and similar fee-shifting statutes play a key role in allowing public interest organizations to challenge decisions by the federal government in court. Fee awards go to attorneys who successfully litigate a case against a federal agency, allowing lawyers to represent organizations that otherwise could not afford counsel. Some organizations also have in-house legal departments that can receive such awards, which generally cannot be shared with the organization’s non-legal staff.

Environmental groups were quick to point out that Budd-Falen’s “billions” claim was fanciful, but noted that the proposed disclosures could lead to efforts to intimidate plaintiff organizations and their counsel. Congress enacted EAJA and other fee-shifting provisions of federal law to enable and encourage interested groups and individuals to vindicate their rights when the federal government acts unlawfully. Lawsuits supported through such attorney fee awards help prevent arbitrary government actions, enforce civil rights and protect consumers, public health and safety, and the environment. Non-profits that support resource users are also eligible for awards when they succeed in court.

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