December 9, 2011

In This Issue


Before the first session of the 112th Congress adjourns at the end of next week (or weekend), it will take up a short, but important list of measures to keep the government funded and extend the existing payroll tax cut. Each of these bills could potentially include environmental policy riders to overturn or scale back Obama administration efforts.

Congressional Republican leaders appear set on taking up a comprehensive measure that ties a year-long extension of President Obama’s payroll tax cut to the approval of the Keystone XL pipeline project. Earlier this fall, the Obama administration announced it would postpone review of the pipeline project until after 2012 and the president has personally stated he would veto an effort to politicize the payroll tax extension. However, some Members have voiced concern that the president may end up taking back that statement, particularly as the bill also includes an extension of unemployment insurance. Entitled the Middle Class Tax Relief and Job Creation Act of 2011, the 396-page measure is sponsored by House Ways and Means Committee Chairman Dave Camp (R-MI).

Congressional leaders also have to deal with the remaining appropriations measures, which must be acted on by the end of next week to maintain government funding of several agencies. The House Interior Appropriations bill for Fiscal Year 2012 is a virtual Christmas tree “ornamented” with policy riders to restrict various Department of Interior and Environmental Protection Agency (EPA) regulations.  Provisions incorporated into the House measure include efforts to restrict EPA’s cross-state air pollution rule, curbs on toxic emissions from power plants, industrial boiler regulations, a proposed change in the definition of “navigable waters” under the Clean Water Act, Interior’s withdrawal of acreage surrounding the Grand Canyon from uranium mining and efforts to restrict mountain-top removal mining. Senior Congressional Democrats have already conceded they may need to relent on a few environmental riders in order to pass a bill.

The double-edged sword in the debate is that both the appropriations and the pay-roll tax cut must clear the Democratic-controlled Senate.  Senate Majority Leader Harry Reid (D-NV) has referred to the current House GOP payroll tax cut extension bill as a “partisan joke” and it’s an all but given that a significant number of policy riders included in the House appropriations measures will need to be shaved in order to clear the chamber. House Democrats have felt increasingly empowered to hold their ground, given that many of the year’s compromises have required their support in order to be enacted into law. House Minority Leader Nancy Pelosi (D-CA) and Minority Whip Steny Hoyer (D-MD) have already criticized the bill, an indication that Democratic leadership may galvanize their members to oppose the GOP’s pay roll tax bill.

However, Democrats are not in lockstep in opposition to the Keystone project. On July 26, 47 House Democrats joined all but three Republicans in passing H.R. 1938, a bill that would have required a final decision on the pipeline project by Nov. 1 of this year. Nonetheless, the comprehensive bill includes several other provisions that Democrats find objectionable, including  language that would delay and potentially weaken EPA air pollution regulations for industrial boilers and incinerator and billions of dollars in spending cuts to the Patient Protection and Affordable Care Act, Obama’s signature legislative accomplishment.

Leadership in both parties agree that an extension of the payroll tax cut in some form is a given. To date, Congressional leaders have also been unanimous in their unwillingness to cause a shutdown of the federal government. Consequently, if Congress fails to come to agreement on the remaining appropriations bills before the current continuing resolution (CR) ends on Dec. 16, it is expected that another CR will be passed to fund the federal government through early next year.

Those concerned about the extension of the Keystone XL pipeline or any of the aforementioned environmental policy riders are encouraged to contact their Members and Senators.

For additional information on the Middle Class Tax Relief and Job Creation Act, click here:

To contact your Member of Congress, click here:

To contact your Senator, click here:


On Dec. 6, the House Natural Resources Committee convened for a hearing examining the effectiveness of the Endangered Species Act. Committee Republican majority members took the opportunity to call for reform of the legislation.

A constant refrain from the majority was the failure of the law to delist the overwhelming majority of species that have been listed over the Act’s nearly four decade existence. In his opening statement, Chairman Doc Hastings (R-WA) asserted “of the species listed under the E.S.A. in the past 38 years, only 20 have been declared recovered. That’s a one percent recovery rate. I firmly believe that we can do better.” Chairman Hastings contended that litigation brought on by the Act has had negative economic impacts. “American tax dollars and government biologists and personnel should be focused on helping save species from extinction – not responding to hundreds of lawsuits.”

In contrast, Ranking Member Ed Markey (D-MA) touted the Act’s successes, noting “only two species have gone extinct after receiving protection by the law.” Markey went on to note the varied economic benefits of the law. “Preventing extinction and recovering species is not just the right thing to do, it is the economically sensible thing to do.  Biodiversity of plants, fish, and wildlife provide us with important benefits, from lifesaving drugs to clean drinking water,” he said. “Hunting, fishing and wildlife watching produces $120 billion in annual revenues and employs more than 2.6 million people.  In 2008 alone, tourists spent more than $125 million to travel and visit Stellwagen Bank National Marine Sanctuary off the coast of my home state of Massachusetts.”

The witness panel was compromised of agency officials as well as litigation attorneys from across the ideological spectrum. Karen Budd-Fallen, a private-property rights attorney reinforced the economic concerns voiced by Chairman Hastings, maintaining that property owners fear prison time or fines for disturbing the habitats of endangered species. She also called upon the committee to extend the 90 day period mandated by the Act to respond to petitions to list species.

Kieran Suckling, Executive Director for the Center for Biological Diversity sought to address aforementioned concerns about the Act’s effectiveness. Suckling referenced a 2006 report from the Government Accountability Office. “The recovery plans we reviewed indicated that species were not likely to be recovered for up to 50 years. Therefore, simply counting the number of extinct and recovered species periodically or over time, without considering the recovery prospects of listed species, provides limited insight into the overall success of the [U.S. Fish and Wildlife Service] recovery programs,” the report stated. “It’s a lot like someone starting a ten day course of antibiotics and declaring on day one the antibiotics don’t work, I’m going to stop taking them,” said Suckling. Suckling noted that on average, most species have been listed for just over 20 years and cited several species that have made substantive progress on the road to recovery, citing recovery goals as 93 percent effective.

West Coast Republican lawmakers inquired why salmon species raised in fish hatcheries are not included in species recovery efforts. Eric Schwaab, Assistant Administrator for Fisheries at the National Oceanic and Atmospheric Administration noted that hatcheries lack the genetic diversity that naturally occurs in wild populations that plays a key role in a species’ resilience. Schwaab suggested compromise by working with hatchery operators to ensure suitable genetic diversity.

Chairman Hastings questioned whether the U.S. Fish and Wildlife Service (FWS) should be permitted to grant funding to environmental groups that in turn sue the agency, arguing that these groups are biting the hand that feeds it. FWS Director Dan Ashe cited FWS as an “equal opportunity target,” having been challenged with litigation by industry, environmental organizations, states, tribes, local governments and individual citizens.

Ashe called for increased federal investment in scientific research and conservation cooperative efforts to effectively implement the law. While acknowledging that lawsuits have indeed caused some frustration and delay for his agency, Ashe sought to put the subject matter of the hearing in perspective. “Let me say with clarity that litigation is not our principle challenge in effectively implementing this important law. In fact, it’s not even close,” he said. “Our principle challenge is the escalating loss and conversion of habitat that’s driven by growing human occupation of the planet. It’s the expansion of exotic species invasions driven by globalizing trade and a paucity of resources to monitor its impact. It’s the warming of the atmosphere and the ocean that is changing the planet’s climate system and driving large scale ecological disruption.”

View the full hearing here:


On Nov. 30, the House Transportation and Infrastructure Subcommittee on Water Resources and Environment held a hearing to examine the federal response to the 2011 Missouri River flood. In addition to Army Corps of Engineers and local public works officials, Reps. Tom Latham (R-IA), Rick Berg (R-ND), Steve King (R-IA), Lynn Jenkins (R-KS), Vicky Hartzler (R-MO), Kristi Noem (R-SD), Emanuel Cleaver (D-MO), Blaine Luetkemeyer (R-MO), Jeff Fortenberry (R-NE) and Lee Terry (R-NE) all testified before the committee.

Most of the members present urged a prompt rewrite of the Army Corps’ river management policies contained in its “Master Manual.” Several lawmakers from the region believe that the Corps should focus its multiple priorities (which include preserving wildlife, restoring habitat , maintaining commercial navigation and sustaining water supply) more centrally on flood control efforts. The Corps contends it is working on changes to the manual. H.R. 2942, introduced by Rep. King, would increase the amount of storage space within the Missouri River Reservoir System that is allocated for flood control. The bill has 13 bipartisan cosponsors, predominantly members of the Missouri and Iowa Congressional delegations.

“Given the significant economic benefits that come from investing in flood protection and navigation infrastructure, I believe the federal government should focus its Corps of Engineers dollars on those activities and halt, for awhile, investing in environmental restoration projects that do not provide the long-term jobs we so desperately need right now,” said Subcommittee Chairman Bob Gibbs (R-OH).

Rep. Russ Carnahan (D-MO) served as the ranking member for the subcommittee hearing. Contrary to charges from some witnesses that the Army Corps prioritized “fish and birds” over flood control efforts, Rep. Carnahan submitted for the record a letter from the U.S. Fish and Wildlife Service that the  Endangered Species Act was not a factor in flood control efforts.

Brigadier General John McMahon, Commander and Division Engineer of the Army Corps Northwestern Division emphasized that the extent of flooding in the region was unprecedented. “Of critical importance is the understanding that May, June and July were the third, first and fifth highest months of inflow in the 113-year period,” he said. “While there are important repairs that need attention, no major deficiencies have been identified to date that would preclude normal operation of the dams in spring of 2012.”

Lawmakers from flooded states contend that the flood proves that the Corps’ river-management policies need to be rewritten, so that less water is stored in the reservoirs in anticipation of the dry season that starts in the summer. The downside of doing this is that emptying reservoirs will compromise the Corps’ ability to perform its other duties. “It’s very feasible to imagine that in the next five to 10 years or sooner that we could be back in the next drought cycle,” Brigadier McMahon noted.

The 2011 Missouri and Mississippi river floods collectively caused more than $2 billion in damages to levees and flood control works. McMahon urged lawmakers to quickly appropriate the funding necessary to complete rebuilding. Many levees in the system are only being partially rebuilt because of the shortfall of funding and time to get the job done before the next flood season. The Army Corps is funded through the Energy and Water Appropriations Act, which is among several funding bills that have yet to be enacted for Fiscal Year 2012.

Earlier this fall, the Ecological Society of America (ESA) held a Congressional briefing on flood control efforts that emphasized the various cost benefits and ecosystem services provided by floodplains.

Click here to view the Congressional hearing here:

Click here for more information on the ESA briefing:


On Dec. 7, the House Science, Space and Technology Subcommittee on Energy and Environment convened a hearing entitled “Energy Critical Elements: Indentifying Research Needs and Strategic Priorities.”

Among Members and witnesses, there was bipartisan consensus that investment in the procurement of rare earths minerals is in the nation’s interest. Members only differed slightly on the specifics of what approach legislation should take. “In light of higher prices, producers in the U.S. and ally nations have announced plans to develop rare earth reserves around the world and companies such as Toyota and General Electric are pursuing demand reductions through R&D on recycling, substitute materials and increased use efficiencies,” asserted Subcommittee Chairman Andy Harris (R-MD). “While a responsive market will continue to drive toward solutions, there are reasonable and proper steps the federal government can and should pursue in this area.”

Subcommittee Ranking Member Brad Miller (D-NC) sought to tout his legislation, H.R. 952, the Energy Critical Elements and Renewal Act, which is similar to legislation passed in the House during the 111th Congress by a vote of 325-98. The Miller bill calls for loan guarantees and would establish within the Department of Energy (DOE) a research and development program to improve coordination among government agencies.  “We wrote a bill that established the Office of Science and Technology Policy (OSTP) as the center of an interagency process designed to establish a continuing research effort,” said Miller. “We wanted to ensure that our country and our employers and our consumers could not be held hostage by the Chinese government’s manipulation of markets.” 

Committee Republicans have coalesced around a bill by Rep. Randy Hultgren (R-IL). His bill, H.R. 2090, the Energy Critical Elements Advancement Act of 2011, takes a market-based approach by limiting research investment to areas that private industry is not likely to do on its own. “My legislation discussed today addresses energy critical elements in a commonsense, market-oriented way,” said Rep. Hultgren.

Ranking Member Miller also took the opportunity to note the committee’s unprecedented lack of legislative accomplishments this calendar year. “I would just close by noting that this committee currently has zero bills that have been passed by the House,” he said. “For this Committee, that is unprecedented for the first session of a Congress, at least going back to Chairman [Robert] Roe [who chaired the committee from 1987-1991].  I would encourage the Majority to consider a bipartisan bill on critical materials as a strong first candidate for markup and passage on the floor of the House.”

Witnesses included Derek Scissors, a research fellow with the Heritage Foundation;  Robert Jaffe, a physics professor with the Massachusetts Institute of Technology; Karl Gschneidner, Senior Materials Scientist with Ames National Laboratory; Luka Erceg, President and CEO of Simbol Materials and David Sandalow, Assistant Secretary for Policy and International Affairs with the U.S. Department of Energy (DOE). Sandalow indicated that DOE would be releasing its updated 2011 Critical Minerals Strategy later this month.

View the full hearing here:


On Dec. 5, the Obama administration announced that it has finalized the strategy for its Gulf of Mexico Ecosystem Restoration Task Force.

The task force is made up of representatives from the five Gulf States and 11 federal agencies, including the Environmental Protection Agency (EPA), White House Council on Environmental Quality, Department of Agriculture, Department of Commerce, Department of Defense, Department of the Interior, Department of Justice, Department of Transportation, Office of Management and Budget, Office of Science and Technology Policy and White House Domestic Policy Council. 

Among the key goals of the strategy are 1) stopping the loss of critical wetlands, sand barriers and beaches, 2) reducing the flow of excess nutrients into the Gulf and 3) enhancing resiliency among coastal communities. The start of the strategy’s implementation phase includes new initiatives such as allocating $50 million in assistance from the U.S. Department of Agriculture’s Natural Resources Conservation Service to help agricultural producers in seven Gulf Coast river basins improve water quality, increase water conservation and enhance wildlife habitat.

According to EPA, the strategy is the first restoration blueprint ever developed for the Gulf with the full involvement of all of the essential parties throughout the region, including the states, tribes, federal agencies, local governments and thousands of citizens and organizations. 

For more information on the task force, click here:


On Dec. 7, the Environmental Protection Agency (EPA) announced its Urban Waters program would be allocating $2 million in small grants towards an effort to decontaminate the nation’s urban waterways. The goal of the program is fund projects, training and research that will foster restoration of urban waters and improve water quality of the nation’s potable resources for the educational, recreation and local business opportunities in surrounding communities.

EPA’s Urban Waters program supports the goals and principles of the Urban Waters Federal Partnership, a partnership of 11 federal agencies working to reconnect urban communities with their waterways.  

Funding proposals must be received by EPA by January 23, 2012. EPA will hold two web-based seminars on this funding opportunity on December 14, 2011 and January 5, 2012. EPA expects to award the grants in summer 2012. 

For more information about urban waters small grants and registration for the webinars, click here:

Click here for more information about the Urban Waters Federal Partnership:


Considered by House Committee

On Dec. 1, the House Natural Resources Committee considered a number of bills that would modify the Magnuson-Stevens Fishery Conservation and Management Act, including:

H.R. 594, the Coastal Jobs Creation Act – Introduced by Rep. Frank Pallone (D-NJ), the bill would establish a Coastal Jobs Creation Grant program to fund  research and monitoring, revitalize coastal infrastructure, establish recreational fishing registry programs, remove debris and assist other initiatives.

H.R. 1013, the Strengthen Fisheries Management in New England Act – Introduced by Rep. William Keating (D-MA), the bill would increase funding for the New England Fishery Management Council to conduct research and stock assessments.

H.R. 1646, the American Angler Preservation Act – Introduced by Jon Runyan (R-NJ), the bill would change the scientific review process of the Magnuson Stevens Act by requiring a scientific committee to obtain an external peer review before it can recommend to lower or raise a catch limit by 20 percent or more. The bill would also prevent the National Oceanic Atmospheric Administration from closing a fishery if it costs small businesses more than $50,000 in losses unless recent stock assessments have shown that closure is the only way to protect stocks.

H.R. 2304, the Fishery Science Improvement Act – Introduced by Rep. Rob Whittman (R-VA), the bill would exempt federal fisheries managers from setting annual catch limits for certain fish stocks. The measure would waive the federal requirement for an annual catch limit if NOAA has not completed a stock assessment in the past five years and there is no indication that overfishing is occurring. It gives NOAA three years to work with regional councils to develop new “science-based measures” to manage the fisheries.

On Dec. 7, the House Transportation and Infrastructure Committee held a hearing on the following bill:

H.R. 3096, the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States (RESTORE) Act – Introduced by Rep. Steve Scalise (R-LA)  the bill would send 80 percent of the Deepwater Horizon spill fines to impactedstates for environmental and economic restoration efforts.

Approved by House Committee

H.R. 3479, the Natural Hazards Risk Reduction Act – Introduced by Rep. Judy Biggert (R-IL), the bill would reauthorize the National Earthquake Hazards Reduction Program (NEHRP) and the National Windstorm Impact Reduction Program (NWIRP). The bill was approved by a vote of 21-12 along party lines. Democrats contended that the bill reduces the authorization level for NEHRP by 36 percent and NWIRP by 14 percent compared to the last year in which the programs were authorized and authorizes the programs at levels that are six percent below current spending levels.

Two amendments were adopted by minority committee members, one from Rep. Hansen Clarke (D-MI) to expand earthquake and windstorm preparedness outreach to individuals with special needs and another by Rep. Ben Luján (D-NM) to enhance research into fires at the wildland-urban interface, the zone of transition between unoccupied land and human development.

Passed the House

H.R. 527, the Regulatory Flexibility Improvement Act – Introduced by Rep. Lamar Smith (R-TX), the bill would enhance the Regulatory Flexibility Act of 1980 and the Small Business Regulatory Enforcement Fairness Act of 1996 to require that all federal agency rules (as opposed to just those that go through the regular notice-and-comment process) be subject to the two laws. The bill passed Dec. 1 by a vote of 263-159 with 28 Democrats joining all Republicans in supporting the measure.

H.R. 3010, the Regulatory Accountability Act – Introduced by Rep. Lamar Smith (R-TX), the bill would revise and expand the cost-benefit analysis required for federal agency rulemakings and would require agencies to choose the least costly option among alternatives. The bill passed Dec. 2 by a vote of 253-167 with 19 Democrats joining with all Republicans in voting for the bill.
Democrats introduced several amendments to the bill, none of which passed. Amendments put forward included one from Rep. Gerry Connolly (D-VA) that sought to exclude any regulation that intends to protect public health and safety (failed 171-242) as well as an amendment by Rep. Jerrold Nadler (D-NY) to exempt rules proposed by the Nuclear Regulatory Commission (failed 174-247).
H.R. 10, the Regulations from the Executive in Need of Scrutiny Act – Introduced by Rep. Geoff Davis (R-KY), the bill would require congressional approval of any federal agency rule that would have an annual impact on the economy of $100 million or more. The bill passed Dec. 7 by a vote of 241-184 with four Democrats voting with all Republicans.

H.R. 1633, the Farm Dust Regulation Prevention Act – Introduced by Rep. Kristi Noem (R-SD), the bill would prevent the Environmental Protection Agency from issuing any new rule over the next year that regulates coarse particulate matter, commonly known as “farm dust.” The bill passed Dec. 8 by a 268-150 with 33 Democrats joining all Republicans. 

*The White House has issued a veto threat against each of the House passed measures mentioned above. However, the bill would have to pass both the House and Senate to reach the president’s desk and the Democratic-controlled Senate is unlikely to take up the bills.

Approved by Senate Committee

On Dec. 8, the Senate Environment and Public Works Committee approved the following bills:

S. 432, the Lake Tahoe Restoration Act – Introduced by Sen. Diane Feinstein (D-CA), the bill would authorize $145 million over 10 years to improve water quality, reduce wildlife threats and restore the lake environment.

S. 1266, the Delaware River Basin Conservation Act – Introduced by Sen. Tom Carper (D-DE), the bill would establish a Delaware River Basin Restoration program at the U.S. Fish and Wildlife Service to support conservation efforts in the region and authorizes $5 million per year in competitive grant funding to support local environmental restoration efforts.

S. 1740, the Chesapeake Bay Gateways and Watertrails Network Reauthorization Act – Introduced by Sen. Ben Cardin (D-MD), the bill reauthorizes for five years the expansion of parks, refuges, recreational and historical sites that comprise the Chesapeake Bay watershed.

Sources: Sources: the Department of Interior, Energy and Environment Daily, E&E News PM, the Environmental Protection Agency, Greenwire, the Hill, the House Natural Resources Committee, the House Science, Space and Technology Committee, POLITICO, the White House