Undoing the damage done in the waning moments of the Bush administration will not be easy, but must be a top priority if we hope to continue our legacy of safeguarding America’s wildlife and wild places.

First and foremost, we must repair the Endangered Species Act by overturning the Bush administration’s last minute regulations weakening protections for America’s imperiled plants, fish and wildlife. The new regulations virtually eliminate independent scientific review under the Endangered Species Act. Until now, federal agencies have been required to consult with expert biologists at the Fish and Wildlife Service or National Marine Fisheries Service to determine whether projects pose any harm to imperiled wildlife. Under the new rule, federal agencies are able to unilaterally determine if actions, such as building a highway or filling in a wetland, will adversely affect endangered species. Most federal agencies have neither the expertise nor the incentive to thoroughly scrutinize their own projects’ impact on wildlife.

The decision to delist gray wolves in the Northern Rockies is another 11th hour action that must be undone. The recovery of wolves in the Northern Rockies is one of the most significant comebacks in the annals of wildlife conservation. Unfortunately, the Bush administration jeopardized this achievement by rushing to delist wolves in this region before ensuring adequate safeguards are in place for their continued protection.

Whether it is through the courts, with the help of Congress or directly from the Obama administration, these actions must be reversed before we can move forward and begin a new era of conservation in this country.

We support the lifting of the Congressional and Presidential bans on offshore drilling. To have a truly comprehensive energy policy, our country needs to increase and diversify our domestic energy supplies, along with embracing energy efficiency, pushing for more alternative and renewable energy, and reducing greenhouse gas emissions. The U.S. is the only country in the world sitting on known reserves of oil and gas that are not being developed. By adopting a more comprehensive approach, we lessen the volatility swings witnessed in the past year, ensure a more stable energy supply, and help our energy intensive manufacturing sector remain competitive on a global scale. As an added benefit, lease royalty revenues generated by oil and natural gas production of the Outer Continental Shelf could be shared at the state and federal level. These revenues could fund energy efficiency programs as well as research and deployment of clean, low-carbon energy sources for the future.

In the last weeks of the Bush administration, The Wilderness Society warned of many last-minute regulations that, if implemented, would seriously threaten the long-term health of America’s public lands. Of the issues we raised, two stand out as needing immediate reversal by the new administration and Congress.

The first is the decision to push through regulations for commercial oil shale development in the West—an unproven, resource-intensive technology with unknown, but potentially far-reaching, environmental impacts on the Western landscape.

The second is Bush’s last-minute rule to change enforcement of the Endangered Species Act, so that the threats posed by global warming are specifically excluded from consideration when making decisions about protecting species or their habitat.

Both of these actions by the Bush administration tipped the delicate balance of policy-making to benefit industry at the expense of the environment. And both of these decisions were egregious in their disregard for science. By reversing these bad policy mandates, the new Congress and administration can send an unequivocal signal that environmental stewardship, sound science, and a commitment to addressing global warming will be critical factors in federal policy-making as we go forward.

Reversing the oil shale regulations makes the statement that industry access to our public lands and the resources they contain must never trump good stewardship. Reversing the ESA rule emphasizes that we simply cannot ignore the reality of global warming as we make policy decisions to manage species and the habitat on which they depend. Doing nothing about these two “midnight” regulations would move us a large step away from solving the global warming crisis facing our planet.

Oil shale would be one of the dirtiest fossil fuels we could embrace—requiring huge amounts of already scarce water resources and possibly requiring 10 new coal-fired power plants just to power its extraction.

And, when science tells us that diverse, intact ecosystems are our very best defense against the impacts of global warming, and that 30 percent of species alive today will become extinct if global warming continues unabated, we need to find ways to protect biodiversity rather than looking for regulatory permission to deny its importance.

In the waning hours of their administration, Bush officials flooded the regulatory pipeline with proposals for new rules. This uptick is nothing so far out of the ordinary—most Presidents take similar steps in their last months in power. However, especially troubling was the lack of analysis or scrutiny given to so many of these Bush proposals.

Under executive orders that have been in place since the Reagan administration, major regulations must be subjected to cost-benefit analysis before they can be adopted. Bush largely side-stepped this mandate for the midnight regulations. While many rules like the one affecting mountain-top mining were surely not “minor,” they were classified as such by Bush officials in order to avoid the economic analysis of a rule they know is unlikely to be warranted in cost-benefit terms.

So, the question that the Obama administration needs to ask when reviewing the former President’s last minute rules is whether they were given rigorous scrutiny, or whether they were pushed out the door at the last minute to satisfy a political constituency or ideological goal. Given the large potential environmental and economic effects of many of these rules, it is clearly important enough to subject to full analysis. They should all be halted until that analysis is complete.

Looking beyond the Bush midnight regulations, there is work to be done by the Obama administration to ensure the fair and unbiased use of cost-benefit analysis in the future. Over the past 30 years, cost-benefit analysis has been misused—making a neutral process into a anti-protections tool under the guise of economic analysis. The result is a weakened federal regulatory process that is badly in need of reform. But this does not have to be the case and there are simple, clear steps Obama and his new regulatory czar, Cass Sunstein could take to remedy this distortion.

The Institute for Policy Integrity has made a series of recommendations to the administration regarding a revision of Executive Order 13422 that would serve to neutralize the pro-industry bias in cost-benefit analysis and prevent sloppy rules like those Bush’s crew tried to promulgate.

The biases in cost-benefit analysis have come into stark relief over the last eight years as an Administration with an ideological bent against regulation dealt an already stacked deck. Not just in its midnight-period but time after time, Bush officials ignored a wealth of economic and scientific data to advance an anti-regulatory agenda. The Institute for Policy Integrity recently published an analysis of the Bush administration’s regulatory process and found numerous cases of inaction—times when agencies would fail to regulate, despite abundant scientific and economic evidence—and the costs were considerable, both in dollars and lives lost. For example, in recent regulations governing fuel-efficiency for SUVs, the cost-benefit analysis completely ignored potential greenhouse gas benefits of the rule, leading to overly lax regulation and, in hindsight, bringing the American auto-industry to its knees.

If cost-benefit analysis in its current form is applied by the new Administration, we will still end up with weak, ineffective, and misplaced rules on issues from climate change to highway safety. To find the right rules, and to regulate at the right level of stringency in these troubled economic times, we need a neutral tool that can identify smart regulation. With its current flaws, cost-benefit analysis makes smart regulations look counter-productive, and faulty regulations look economically sound. It will be impossible to implement the right solutions if decision-makers are looking through a fundamentally biased lens.

By quickly shoring up the deep faults in the current executive order, President-Elect Obama would restore balance to the cost-benefit analysis process and give sensible, economically justified regulation and a clean environment a better chance to triumph. He might also prevent the kind of irresponsible rule-making that went on in the last months of the Bush Administration from ever happening again.

Well, this morning one major Bush reguatlory initiative was reversed -- the refusal to observe the Clean Air Act mandate that California be allowed to set automobile emission standards that are tougher than the federal ones. Since 13 states have already joined California in its new CO2 standards, this is clear signal to the auto industry that they need to move towards an auto fleet that is compatible with a stable climate.

But Bush also defied the Supreme Court in refusing to have EPA do regulation of CO2 from stationary sources like coal fired power plants as well. And when EPA's Permit Appeals Board ruled that the Agency --- duh -- had to do what the Court ordered, outgoing Administration Steve Johnson issued an interpretive order telling his Agency and the States it oversees to continue ignoring the Court and issue air permits to power plants that do nothing to control CO2. Restoring the rule of law to the power sector is a good second step.

And finally Bush rushed through last minute rules saying that the Clean Water Act doesn't apply to mining wastes, which can simply be dumped in rivers and streams. That rule, expecially in the wake of the disaster at Kingston, Tennesse, also ought to be high on the "reverse and remedy" list.

What's striking about these situations is that all three of them involve such blatant violation of the plain language of statutes. So mainly what President Obama needs to do -- and is already starting to do -- is to follow the law.

While there are a number of choices for scrapping recent changes to environmental regulations, I would put the modifications to Section 7 of the Endangered Species Act at the top of the list. Not only are the changes bad policy, but they actually undermine their stated objective of expediting project implementation.

The changed Section 7 rule shifts the threshold of impact that triggers a consultation away from species protection, and provides nearly unilateral authority to federal action agencies. Threshold decisions will be placed in the hands of federal action agencies with primary objectives that are very different from that of the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration (i.e., highway construction, bridge construction, agriculture, drinking water management). There are literally thousands of examples across the country where action agencies have proposed to move forward with projects under a determination that there is no effect or a minimal effect on species, and the USFWS and NOAA’s biological expertise in these cases have led to a determination that species would be impacted such that mitigation would be necessary to address the impacts.

Despite sensationalized anecdotes of delay associated with the consultation process, the reality is that the combination of informal and formal consultations, and the ongoing constructive partnership between action agencies and the USFWS and NOAA, is one of the better examples of good governance and a statutory and regulatory framework that results in higher quality, fact-based decision making and the accomplishment of multiple federal objectives – accomplishment of the missions of the action agencies and the preservation of species. The proposed regulatory changes would alter that approach by shifting what is now a finely-tuned balance between these objectives.

Ironically, in seeking to "simplify" and "streamline" the consultation process, the net effect of the proposed regulations will inevitably be a shift toward more formal consultations and increased litigation, often, under the proposed rule, involving action agencies being challenged on their failure to consult. It is unlikely that the intent of the proposed regulatory changes was to shift decision-making under the ESA from the current partnership between action agencies and the Services to the federal judiciary, but that is the likely result.

There are many examples from the Nature Conservancy’s work in the field that illustrate the effectiveness of the former Section 7 provisions. I will cite one of them—the impact of military activities at Fort Bragg, North Carolina on habitat for the endangered red-cockaded woodpecker.

In 1993, after a section 7 consultation, the USFWS issued a jeopardy opinion on Fort Bragg’s land management activities, citing the declining population of the Red-cockaded woodpecker (RCW), an Endangered species which relies on Fort Bragg as its second largest remaining core population. This required a close collaborative process to ensure that both military training and readiness requirements and the US Army’s obligations under the ESA would be met. As a result of this process, the Army and USFWS developed a two-pronged strategy: better management of RCW habitat by the Army on post and an initiative to improve habitat for the “off-post” portion of the RCW population The Nature Conservancy and the Army created the Private Lands Initiative, a novel Cooperative Agreement to conserve important habitat on private lands near Fort Bragg through a jointly funded program of conservation easement and fee acquisition from willing sellers. In 2002, the success of this program was recognized and codified into law by Congress as part of the Fiscal Year 2003 National Defense Authorization Act, fostering the birth of the Army Compatible Use Buffer Program. The innovations which resulted from the section 7 consultation and negotiation allowed the Army to:

• Continue training on Fort Bragg, with temporary restrictions, while the RCW population was recovered.
  
• Fund non-profit conservation groups to purchase conservation interests in strategic RCW habitat around Fort Bragg, which also served to buffer and maintain viability of existing military training areas and RCW habitat by preventing incompatible development along the installation boundary.
  
• Increase lands available for compatible, low-impact training activities on newly protected properties.

It makes little sense to replace a Federal regulation that produces this kind of far-reaching and constructive result. This is how the Endangered Species Act and government in general are supposed to work. The recent Section 7 revisions should be reversed.

As the political tribes vigorously dance around the campfire of midnight regulations at the beginning of each new administration we all become mesmerized by the dance and the flames and forget how silly we look being caught in such a transitory event. It may be an irritation but the new administration can change the rules if it so chooses. What should be the focus is not the dance but the soundness of the policy.

There are two final actions that occurred in late 2008 that need to be preserved if the economic stimulus package is to move forward. By “moving forward” I do not mean passage of the economic stimulus bill by Congress. Rather, my concern is the quick implementation of the programs that are part of the economic stimulus package.

The first is the final rule of the Department of Interior (DOI) relating to Section 7 interagency consultations under the Endangered Species Act. This rule clarifies that Section 7 consultations—typically detailed, time-consuming and onerous interagency processes—will only be required when effects to listed species are likely to occur, and not when effects are unlikely to occur. Without these regulations, ESA Section 7 consultations could theoretically be required for every proposed federal activity, even where potential impacts to species are highly unlikely, resulting in massive undue delay for all federal projects and programs.

This distinction is necessary since most endangered species issues involve action in the direct area of the endangered species. Carbon dioxide, however, has a much longer atmospheric life span and literally travels the world. If Section 7 consultations were mandatory for all federal actions, every federal project, no matter where it is located, would be subject to the consultation process. Under these circumstances almost every construction project in the economic stimulus package would be subject to consultation since it emits carbon dioxide. With this kind of regulatory burden simultaneously placed on each federal project the economic stimulus package could not be implemented for decades. So we need to keep the DOI commonsense polar bear rule if we hope to have the economic stimulus work in a relatively short period of time.

The second final action that must remain in place is the release of the congressional and presidential moratoria that prohibited drilling in the Outer Continental Shelf. No matter how quickly we want to turn the nation “Green,” we will still need oil and gas for decades to come. We also need oil and gas to implement the thousands of infrastructure projects in the economic stimulus package. Therefore, we should at least explore and develop U.S. oil and gas reserves in the OCS. It saves us from sending dollars to foreign countries and it creates jobs. More important,t however, is estimated that the areas of the OCS subject to the moratoria contain 88 billion barrels of oil which will generate $1.7 Trillion dollars in royalties for the U.S. taxpayers. And with the way this nation is pushing money out of the Treasury Department to pay for the economic stimulus package, we should at least think about making some money. Why should we leave $1.7 Trillion in the ground at a time when the nation is bleeding money?

As you can see, this debate is not about midnight regulations; it is a real policy debate and we should have it on the merits, not on our tribal alliances.

Overturning the last minute attacks on the environment by the Bush administration should be a top priority for the incoming Obama administration and for the new Congress. While Defenders of Wildlife supports efforts to reverse all of the Bush administration’s midnight rules, we think that two sets of rules under the Endangered Species Act (ESA) are particularly harmful and therefore should be overturned right away. Those rules are the weakening of certain checks and balances under the ESA, and the removal of ESA protection from northern Rockies gray wolves.

On December 16, 2008, the Bush administration issued final rules rewriting one of the most important protections provided by the ESA: the Section 7 requirement that federal agencies consult with federal wildlife experts regarding agency actions that could harm threatened and endangered species. Under the new rules, federal agencies can now decide for themselves whether consultation is necessary, eliminating the important safeguard of independent review by expert biologists at the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS). The new rules also significantly narrow the scope of actions that are subject to consultation, again eliminating independent review of a host of potentially harmful federal actions. In particular, the new rules provide that actions that contribute to global warming pollution are exempt from Section 7 consultation requirements. The new rules took effect on January 15, 2009.

Defenders of Wildlife, along with Greenpeace and the Center for Biological Diversity, has already filed suit challenging the new rules. Similar litigation has been filed by a number of environmental groups and a coalition of states led by California. Defenders has also urged the administration to fulfill the pledge made during the Obama campaign to reverse these rules. In addition, Defenders strongly supports a bill introduced by Representative Nick Rahall (D-WV), chairman of the House Natural Resources Committee, and other key House leaders to use the Congressional Review Act to reverse the new rules.

On January 14, 2009, the Bush administration once again announced that it was removing ESA protection for gray wolves in the northern Rockies. Despite a federal court decision last summer, prompted by a suit brought by Defenders and other conservation groups, that the requirements for delisting northern Rockies gray wolves had not been met, the Bush administration was clearly determined to remove wolves from federal protection no matter what. The latest delisting rule would remove federal protection for gray wolves everywhere except the state of Wyoming, whose state management plan allowing wolves in most of the state to be shot on sight was deemed inadequate.

Although the Bush administration announced the wolf delisting, the actual rule was not published before the Obama administration took office. Publication of the rule has now been stayed pending review by the new administration.

When asked about these issues during his confirmation hearing, Interior Secretary-designate Salazar confirmed his support for the Endangered Species Act and the importance of science in decision making. Defenders looks forward to working with Secretary Salazar and the new team to reverse the Bush administration’s final environmental insults.