The Environmental Record of the 108th Congress
A review of key environmental debates and votes that occurred during the 108th Congress, and a look ahead to the 109th.
The 108th Congress was called to order on January 7, 2003, and adjourned on December 8, 2004 (more than two full months after scheduled adjournment). In the end, Congress did not open the Arctic National Wildlife Refuge to drilling, but many damaging anti-environment riders were tacked onto last-minute appropriations bills while funds for environmental programs were slashed. Below we recount the major environmental battles and outcomes of the 108th Congress and look ahead to the issues that will define the 109th, including continued assaults on landmark environmental legislation such as the Endangered Species and Clean Air Acts.
Air and Climate
Water and Oceans
Nominations and Appointments
Congress has few constitutionally required duties beyond passing the 13 annual spending bills that fund the government. The Constitution mandates that these appropriations bills be approved and on their way to the president by September 30th of each year. In recent years, however, Congress has fallen behind on this schedule, necessitating a series of bills to provide interim funding for the government.
Another consequence of the many missed appropriations deadlines has been heavy reliance on the omnibus bill, a catch-all piece of legislation in which all unfinished spending bills are lumped together and passed en masse. Huge omnibus bills often become the vehicles for unrelated policy provisions, called riders, that likely would not pass a straight up-or-down vote as stand-alone legislation. The 108th Congress approved some of the most damaging anti-environment riders in recent years.
The 108th Congress also was marked by dramatic funding cuts to environmental programs across agencies. Major battles during the FY04 and FY05 budget and appropriations processes were fought over proposed oil drilling in Alaska's Arctic National Wildlife Refuge, maintaining the Superfund "polluter pays" principal, protecting roadless areas in the Tongass National Forest, banning snowmobiles in Yellowstone National Park and other environmental priorities.
The FY04 Budget Resolution
President Bush's FY04 budget request included $1.2 billion in federal revenue to be generated from leasing land in Alaska's Arctic National Wildlife Refuge to oil companies for drilling. Proponents of opening the refuge to oil and gas development planned to use the filibuster-proof budget process as a backdoor way to win Senate approval of the proposal (by including the proposal as part of the budget process, drilling supporters would need just a majority of 51 votes to open the refuge, rather than the 60 votes necessary to overcome the filibuster of a stand-alone Arctic drilling bill).
Upon receiving the president's FY04 budget, six moderate Republican senators -- Sens. Snowe (ME), Collins (ME), Chafee (RI), Fitzgerald (IL), DeWine (OH), and McCain (AZ) -- signed a letter to the Budget Committee objecting to any attempt to attach Arctic drilling to budget legislation. Although the committee included the Arctic leasing revenue it its budget resolution, the full Senate voted 52-48 to strip the drilling language from the bill.
Although the House resolution did not specifically direct Congress to open the refuge to oil and gas drilling, it did direct relevant committees to cut FY04 spending by $1.7 billion. Some in the House saw revenue from the Arctic National Wildlife Refuge as a way to pay for these cuts. The final budget resolution approved by both chambers did not open the Arctic National Wildlife Refuge for drilling, and the issue was put aside in the FY05 budget process as Congress entered an election year.
FY04 Appropriations Bills
According to the Constitution, all appropriations bills must originate in the House before being taken up by the Senate. This means that if Congress is slow to enact all 13 appropriations bills, as it has been during the last two years, most of the key votes happen on the House floor, with little action in the Senate.
FY04 Energy and Water Appropriations: The Energy and Water Appropriations bill (H.R. 2754) funded the Department of Energy's Yucca Mountain project, the proposed permanent repository for high-level nuclear waste. The chair of the Energy and Water subcommittee, Sen. Domenici (R-NM), is a strong proponent of the project, while the ranking Democrat, Sen. Reid (D-NV), opposes the construction of the repository in his home state and has consistently worked to cut funding for the project. Sen. Reid succeeded in shaving $10 million off the project's budget in FY04.
The Senate also debated funding for President Bush's proposal to develop a new generation of nuclear weapons known as "bunker busters." Sen. Feinstein (D-CA) offered an amendment to eliminate the $15 million program but the amendment failed on procedural grounds. Sen. Reed (D-RI) then offered an amendment to limit the use of the bunker-buster funds solely to research activities. His amendment passed by voice vote.
When the final bill passed Congress, it included the bunker buster funds and also money for dangerous nuclear reprocessing programs. The bill also contained a rider inserted by Sen. Domenici that exempted a large water project on the Rio Grande from Endangered Species Act protections that would have maintained adequate water supplies for the threatened silvery minnow. Environmentalists believe the fish will become extinct without this additional water.
FY04 Interior Appropriations: The House Interior Appropriations bill (H.R. 2691) cut the highly successful Land and Water Conservation Fund, which funds land acquisition and conservation programs in the National Park Service, U.S. Forest Service, Bureau of Land Management and U.S. Fish and Wildlife Service. One of the biggest environmental votes on the bill -- an attempt by Rep. Holt (D-NJ) and Rep. Shays (R-CT) to ban snowmobiles in Yellowstone and Grand Teton national parks -- resulted in a tie and therefore failed.
In the Senate, Sen. Stevens (R-AK), chair of the Appropriations Committee, inserted a rider into that chamber's Interior bill (S. 1391) that would facilitate logging in the Tongass and Chugach national forests by limiting judicial review of citizen appeals of timber contracts. The bill also included a damaging rider that ended a moratorium on oil and gas drilling in Alaska's fragile Bristol Bay. The Senate rejected an amendment offered by Sen. Boxer (D-CA) to remove the judicial review limitations. Before passing the bill, the Senate also rejected Sen. Reid's (D-NV) amendment to prohibit funding the Bush administration's proposal to move certain Interior agencies to outside contractors.
The final Interior appropriations bill, approved by both the House and Senate, included additional riders that waived National Environmental Policy Act review of grazing on public lands, and allowed logging in two Montana national forests without NEPA or Clean Water Act compliance.
FY04 Transportation Appropriations: The House transportation funding bill for FY04 (H.R. 2989) came to the floor with little funding for green transportation projects such as bike paths, rails-to-trails programs and walkways. Rep. Petri (R-WI), chair of the Highways, Transit and Pipeline subcommittee, led the fight to restore this funding to the House bill, thus matching levels set in the Senate version of the bill.
FY04 EPA Appropriations: The House version of the spending bill that funds the Environmental Protection Agency (H.R. 2861) gave the agency a budget of $8 billion, an increase from the president's budget proposal but a cut from the previous year's funding. In an unexpected series of victories, the House approved three pro-environment amendments. The first, offered by Rep. Allen (D-ME), prohibits the EPA from using a statistical technique that assigns a lower value to lives of senior citizens when determining the costs and benefits of environmental regulations. The second amendment was offered by Rep. Inslee (D-WA) to increase the number of employees in the EPA's Office of Enforcement and Compliance Assurance. Rep. Bishop (D-NY) also succeeded in adding language that prohibits the EPA from using data on the health risks of pesticides that was obtained by testing on humans.
The Senate version of the bill included a rider inserted by Sen. Bond (R-MO) targeting California's efforts to reduce pollution from off-road vehicles and equipment, such as lawnmowers. After intense negotiations with Sen. Feinstein (D-CA) to prevent a preemption of California's air quality laws, the final Bond rider prohibited all states except California from regulating emissions from small engines, which are a significant source of smog and soot pollution. The final EPA spending bill was added to the FY04 omnibus bill.
FY04 Omnibus: The six bills still unfinished in November 2003 were rolled into an omnibus package (H.R. 2673). Neither chamber voted on the bill -- which set funding levels for the EPA, the Department of Agriculture and the National Oceanic and Atmospheric Administration -- until January 2004. An anti-environment rider, inserted by Sen. Stevens (R-AK), raised limits on fish and crab processing necessary to prevent overfishing, and added language that threatens essential fish habitat and ancient deep sea corals. On the positive side, the bill contained a provision that increases the fee pesticide manufacturers pay the EPA for registering pesticides. The increase in fees, which was supported by environmentalists and the pesticide industry, now funds the EPA's environmental safety assessment of pesticides used to grow food crops.
The FY05 Budget Resolution
President Bush's proposed blueprint for FY05 federal funding again proposed to raise revenues by opening the Arctic National Wildlife Refuge to oil and gas drilling. Although many domestic programs were cut to free up funding for the war in Iraq, spending on environmental programs took a disproportional cut from FY04 levels.
Before approving its FY05 budget resolution (S. Con. Res. 95) in March 2004, the Senate approved an amendment to add $3.2 billion to the EPA's budget for funding water infrastructure projects such as sewers and wastewater treatment plants. Most experts agree that at least a trillion dollars will have to be invested over the next 20 years to upgrade old and failing water infrastructure.
The Senate rejected Sen. Lautenberg's (D-NJ) amendment to reinstate the "polluter pays" principle within the Superfund program. Until 1995, companies with the potential to pollute the environment -- particularly the oil, gas, chemical and mining industries -- paid a tax that funded Superfund cleanups. Since the "polluter pays" tax expired in 1995, the taxes of ordinary citizens have financed the Superfund program, which ran out of money in 2004.
The House passed its $819 billion FY05 budget resolution (H.Con.Res. 393) in March 2004 and provided nearly $5 billion less than the Senate version for environmental programs. An attempt by House Democrats to increase environmental spending was defeated.
Neither version of the budget resolution included language to open the Arctic National Wildlife Refuge to oil and gas drilling. The Senate never approved the final budget conference report, making the appropriations process in the Senate more difficult.
Looking Ahead: Drilling for oil in the Arctic National Wildlife Refuge is far from a dead issue. President Bush and Senate Republican leaders have announced that they will use the FY06 budget process to again attempt to open the refuge to oil and gas drilling.
FY05 Appropriations Bills
FY05 Energy and Water Appropriations: The House FY05 Energy and Water Appropriations bill (H.R. 4614), provides $28 billion to the Department of Energy, the Bureau of Reclamation and the Army Corps of Engineers. The California Bay-Delta Restoration Program, or CalFed, received no funding because Congress had not yet passed legislation specifying the federal government's share of funding for the joint state-federal program. An amendment to shift $30 million from the DOE's nuclear weapons activities to renewable energy programs failed. The Senate version of the bill again stalled over how to fund the DOE's Yucca Mountain project.
FY05 Interior Appropriations: The House Interior Appropriations bill for FY05 (H.R. 4568), provides more than $19 billion in spending for the Department of the Interior and related programs, with cuts to most agencies from FY04 levels. Like the FY04 bill, the worst cuts occurred in the Land and Water Conservation Fund, with the House zeroing out funding for any federal land acquisition through the program. A bipartisan group of representatives tried again to phase out the use of snowmobiles in Yellowstone National Park, but the amendment was defeated by a vote of 198-224. Another amendment would have prevented the National Park Service from killing bison that move out of Yellowstone into surrounding public lands leased for cattle grazing. Environmentalists teamed up with fiscal conservatives to win a victory on an amendment to prevent taxpayer funding of road construction for commercial logging in Alaska's Tongass National Forest, but this funding was restored in conference. The Senate did not pass the Interior spending bill, and it was added to the FY05 omnibus.
FY05 Omnibus: Unable to finish work on the nine remaining spending bills for FY05 by the fall of 2004, House and Senate appropriators rolled them into a huge $388 billion omnibus spending bill (H.R. 4818). Most agencies that deal with environmental issues saw some level of budget cuts for FY05.
Congress cut the EPA's budget by $277 million, the first cut in many years. The bulk of the cuts will be felt in the Clean Water State Revolving Funds program, which gives low-interest loans to communities for wastewater infrastructure projects, and was cut by nearly 18 percent. Also receiving significant cuts were the EPA's science and technology programs. The Superfund program received the same funding as last year.
The $23 billion budget for the Department of Energy is a mixed bag of funding that includes many nuclear programs. In a blow to the Bush administration, Congress eliminated all funding (nearly $28 million) for "bunker buster" nuclear weapons. The administration also had requested almost $30 million to build a facility that would manufacture the plutonium "pits" for new nuclear weapons, but Congress provided only $7 million. The president requested funds to prepare the Nevada Test Site for potential tests of nuclear weapons as well, but no funds were allocated for this purpose. The DOE will, however, receive a significant increase in funding for a program intended to encourage the construction of new nuclear power plants. Funding for clean-up of high-level nuclear waste in leaking tanks at DOE nuclear weapons facilities in South Carolina, Washington and Idaho was cut from the administration's request of $350 million to $292 million. Total funding for the DOE's renewable energy programs was $14 million higher than the administration's request, for a total of $389 million.
The longstanding dispute over funding for the Yucca Mountain nuclear waste disposal facility was resolved, enabling appropriators to include the Energy and Water bill in the omnibus. The Yucca Mountain project will receive no increase in funding over FY04, and the $577 million budget does not include the provision requested by the administration that would have allowed the DOE to spend the money without congressional oversight.
Congress increased total funding for the National Oceanic and Atmospheric Administration to $3.9 billion. Although this figure includes new funding for a program to help implement recommendations from the National Ocean Commission report on the declining health of ocean ecosystems, key wildlife and water quality programs and agencies, such as the National Marine Fisheries Service, were cut or did not receive additional funding.
The omnibus contains a rider that will expedite the handover of more than 100,000 acres of important wildlife habitat in the Yukon Flats National Wildlife Refuge to a corporation that wants to drill for oil on the land. Another rider excludes from environmental review the renewal of grazing permits for many allotments in national forests. Another provision limits judicial review and public input in connection with logging projects within the Tongass National Forest. Other riders remove three roads within Georgia's Cumberland Island Wilderness Area from wilderness protection, and more than double the number of snowmobiles allowed per day in Yellowstone and Grand Teton national parks compared to winter 2003 levels.
Environmentalists were able to block two proposed riders that would have undermined the Endangered Species Act. If successful, these measures would have completely exempted the principle law regulating pesticides in the United States from the Endangered Species Act and would have made it far easier for mining, logging and other harmful activities on federally designated critical habitat to go forward.
Looking Ahead: With a record deficit, continuing war in Iraq and President Bush's plans to make tax cuts permanent, federal funds will be in short supply in the 109th Congress. A leaked planning document from the administration provided a glimpse of deep cuts in domestic programs in the FY06 budget; those cuts will likely continue into FY07.
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Air and Climate
At the beginning of the 108th Congress, Sen. McCain (R-AZ) and Sen. Lieberman (D-CT) introduced the Climate Stewardship Act (S. 139), which would impose mandatory cuts in global warming pollution from industry, commerce, electric power generation and transportation, which produces nearly 80 percent of these emissions in the United States. In October 2003, a stand-alone vote on the bill garnered a surprisingly strong 43 votes. The two senators failed in their attempt to have a second vote on the bill in July 2004, but Sen. McCain has vowed to continue to champion this bill until it passes. In the meantime, Rep. Gilchrest (R-MD) and Rep. Olver (D-MA) have introduced the Climate Stewardship Act in the House (H.R. 4067).
The president's "Clear Skies Initiative" was introduced in February 2003 in the House and Senate (S. 485 and H.R. 999). Environmentalists oppose Clear Skies because it would repeal or weaken vital clean air protections in the current Clean Air Act, and substitute less stringent limits for power plant emissions. The bill also would delay pollution reductions needed to meet public health standards, and roll back key measures to protect local air quality and improve air quality in national parks. In addition, the bill does not address carbon dioxide emissions, the main cause of global warming. Fearing that Clear Skies would never move out of committee, the White House began pressuring Congress in September 2003 to add the bill to the energy bill conference report (H.R. 6), but conferees rejected the attempt.
Looking Ahead: The White House and congressional Republican leaders have announced their intention to re-introduce the Clear Skies Initiative early in the 109th Congress.
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The Pentagon presented its "Range and Readiness Preservation Initiative" at the beginning of the 108th Congress. The proposal attempted to exempt the military from the provisions of several key environmental statutes: the Endangered Species Act, the Marine Mammal Protection Act, the Clean Air Act and hazardous waste and Superfund laws. Both the House and Senate Armed Services committees rejected the Pentagon's request for exemptions from the Clean Air Act and the hazardous waste laws in the FY04 Defense Authorization bill (H.R. 1588 and S. 737) that came out of committee.
The Senate committee's bill did not include exemptions to the Marine Mammal Protection Act, but did contain the Pentagon's language exempting the military from designating critical habitat on military land to ensure the survival of endangered species. The full Senate voted 51-48 to restrict the Endangered Species Act exemption by requiring that the Secretary of the Interior determine that management plans on military lands would effectively protect endangered species and that adequate funding would be available for such plans.
The House committee version called for broader exemptions than those requested by the Pentagon and sought to raise the standard for when critical habitat should be designated on all lands, not just those controlled by the military. The House committee bill also contained major changes to the Marine Mammal Protection Act, seeking to remove the act's limits on injuring or killing marine mammals and revising the definition of what qualifies as harassment for all ocean activities, not just military training exercises. An amendment introduced by Rep. Hunter (R-CA) that restricted any changes in the law to military activities passed 252-175.
In early November 2003 after months of negotiations, the final Defense Authorization bill emerged from conference. House conferees succeeded in retaining the stronger exemption from the Endangered Species Act and added new language not requested by the Pentagon that broadened the Marine Mammal Protection Act exemption to include offshore research activities, even those not conducted by the military.
Looking Ahead: The Pentagon has announced its intention to push for the exemptions from the Clean Air Act and hazardous waste laws that were rejected in the 107th and 108th Congresses.
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Congress began debating comprehensive energy legislation in the Democratic-controlled 107th Congress, but was unable to pass a bill. With Republicans in charge of the Senate in the 108th, the Senate Energy and Natural Resources Committee in April 2003 passed a new version of an energy bill (S. 14) that included many anti-environment provisions. The bill would dramatically expand oil and gas production, weaken environmental protections on public and tribal lands, repeal protections for electricity customers, send billions in subsidies to nuclear, coal and other polluting industries and increase the threat of nuclear terrorism through the production of weapons-grade plutonium. While the committee did not include a provision to open the Arctic National Wildlife Refuge to oil and gas drilling, it did not include important pro-environment amendments, such as a requirement that electric utilities generate 10 percent of power from renewable energy sources or a provision to protect coastlines from oil and gas drilling. When the bill hit the Senate floor, senators filed almost 350 amendments, prompting Senate leadership to move the bill off the floor to work on other bills. After six weeks on other issues, the Senate resumed debate of S. 14, voting on several amendments before deciding to accept the energy bill passed by Democrats in the 107th Congress instead. Environmentalists had opposed that bill for its failure to include oil savings and significant renewable energy measures, its tax breaks for polluting industries and exemptions for fuel additives from product liability claims.
At the same time, the House passed its own comprehensive energy bill (H.R. 6). The House version did not include provisions to drill in sensitive off-shore areas but did include drilling in the Arctic National Wildlife Refuge.
Republicans controlled the conference committee set to merge the House and Senate versions of the bill, and Democrats complained that they were shut out of the conference process. As draft sections of the bill were released to the public, environmentalists discovered provisions -- such as subsidies for the coal industry -- that were in neither the original House nor Senate versions of the bill. Rep. Barton (R-TX) added language to the conference report that would delay the Clean Air Act-mandated deadline for large cities to meet air quality standards for ozone. Negotiations between House and Senate Republicans slowed over tax policy, including provisions mandating ethanol use. At one point in the fall of 2003, the Bush administration stepped in to broker a deal between the two factions.
In November 2003, after three months of conference negotiations, the House approved the final energy bill by a vote of 246-180. Three days later, Senate opponents of the bill, including six Republicans, mustered enough votes for a successful filibuster. The final bill did not include provisions to drill in either the Arctic National Wildlife Refuge or sensitive coastal areas, but did contain liability relief for producers of the toxic gasoline additive MTBE, which has contaminated drinking water supplies around the country. The MTBE liability waiver proved to be highly objectionable to a number of senators who may otherwise have supported the energy bill. Other senators cited the bill's cost, estimated at over $31 billion, as a reason for their opposition.
The Senate filibuster continued as the second half of the 108th Congress began. Sen. Domenici (R-NM), chair of the Energy and Natural Resources Committee, then introduced a "scaled back" energy bill (S. 2095) that was virtually identical to the conference report. The apparent cost was reduced through accounting gimmicks. Other sections of the energy bill -- such as an extension of expired renewable energy tax credits, certain ethanol subsidies, and a huge Alaska natural gas pipeline project -- were added to unrelated bills, reducing the pressure to push through a comprehensive energy bill. The 108th Congress ended without passage of a big energy package.
Looking Ahead: Energy bill supporters may try to move a comprehensive energy bill in the 109th Congress, but members also may write smaller bills that focus on specific energy sectors. The first such bill is expected to target natural gas policy.
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One major nuclear issue taken up in the 108th Congress was a change in the Nuclear Waste Policy Act allowing the Department of Energy to reclassify high-level nuclear waste as low-level waste in order to sidestep costly clean-up at nuclear weapons facilities. After NRDC won a lawsuit stopping this reclassification on the grounds that it was illegal, Energy Secretary Abraham asked Republicans in Congress to change the law. As a result, the Senate version of the FY05 Defense Authorization bill (S. 2400) included a provision to amend the Nuclear Waste Policy Act to allow the DOE to reclassify high-level nuclear waste as low-level waste at sites in South Carolina and Idaho. An amendment offered by Sen. Cantwell (D-WA) to strike the reclassification language failed on a 48-48 vote. Although the House version of the bill (H.R. 4200) did not include a similar reclassification provision, when House and Senate conferees completed their negotiations the final DOD bill did contain the Senate language allowing the DOE to reclassify the waste in South Carolina and Idaho.
Looking Ahead: Congress may try to legislatively reverse NRDCs federal court victory in the Yucca Mountain nuclear repository case (NRDC and Nevada successfully argued that the EPAs Yucca radiation protection standards were inadequate over time, and Congress might attempt to change the law to allow the site to go forward).
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In the first month of the 108th Congress, Sen. Corzine (D-NJ) reintroduced his Chemical Security bill (S. 157) that would require a safety assessment for chemical facilities and adoption of less risky processes to reduce the risk of exposure to hazardous substances as a result of terrorist attacks. The bill unanimously passed the Senate Environment and Public Works Committee in the 107th Congress but was never considered by the full Senate. In May 2003, Sen. Inhofe (R-OK), chair of the Environment and Public Works Committee, introduced the Bush administration's version of chemical security legislation (S. 994). Unlike S. 157, the administration's plan relies on voluntary industry standards and lacks enforcement mechanisms. The bill would not require the Department of Homeland Security to review vulnerability assessments or require companies to substitute safer alternatives for the most toxic substances. Sen. Inhofe's bill passed out of committee but was never acted on by the full Senate.
Looking Ahead: Congressional committees in both chambers are gearing up to reconsider chemical security legislation.
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Many battles over public lands in the 108th Congress occurred during the appropriations process. A large number involved riders with anti-environment policy changes that were inserted into spending bills with little public debate. A major environmental battle also played out on the House and Senate floors over forest fire management at a time when the west was experiencing a record fire season, exacerbated by a historic drought.
In May 2003, the House passed the Healthy Forests Restoration Act (H.R. 1904) based on the president's "Healthy Forests Initiative." The bill, offered under the guise of minimizing fire risks in national forests, facilitates damaging logging in national forests and on other public lands by eliminating the National Environmental Policy Act requirement that agencies consider less environmentally damaging alternative management strategies. The bill also restricts the right of citizens to appeal logging projects, and drastically reduces both the time for filing such appeals as well as the time allowed for judicial review. The legislation allows new roads in roadless areas and provides $125 million in subsidies for logging in national forests. An amendment with a more balanced plan to address communities' risk from forest fires by targeting most fire management funds to activities within a half mile of communities failed.
In October 2003 the Senate approved an amended version of the bill, based on a bipartisan amendment that attempted to address some of the worst provisions in the president's plan. Environmentalists opposed the Senate bill as well, because it still interfered with an independent judiciary, significantly weakened NEPA, and undermined the public's right to meaningful participation in decisions affecting public lands. The bill also failed to ensure increased fire protection for homes and communities or include dedicated fire protection funding for state, tribal and local governments. This version was passed by both chambers and signed into law in December 2003.
Looking Ahead: Public lands will be under continued assault as the Bush administration and its allies in Congress attempt to expedite permitting for extractive industries, such as oil and gas drilling, and open up roadless and wild areas to mining, drilling and logging activity.
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Programs passed under the last massive transportation bill were set to expire at the end of February 2004, so Congress began crafting a reauthorization package in May 2003. In February 2004, the Senate passed its $318 billion transportation bill (S. 1072), which contained a number of anti-environment provisions that would increase air pollution and reduce environmental review requirements. On the positive side, the bill would require authorities to consider wildlife and sprawl issues in the transportation planning process, and would fund nearly $1 billion in water pollution reduction programs. The bill also would maintain the current ratio of funding for public transportation.
Work on the House version of the bill (H.R. 3550) stalled over its cost. The House bill, projected to exceed $375 billion, was more than $100 billion higher than the Bush administration's request of $256 billion. The House finally settled on a bill that would fund highway and transit programs at a level of $275 billion, which House Speaker Hastert (R-IL) believed was close enough to the president's request to avoid a veto. The bill includes Clean Air Act protections, NEPA environmental review and protection of historic sites, but the lower price tag of the House bill could present a danger to transit programs. With the White House still threatening a veto of any bill in excess of $256 billion, the House passed H.R. 3550 by a vote of 357-65 in April 2004 -- with a margin in excess of the two-thirds necessary to override a presidential veto.
Since then, the bill has been stuck in House-Senate conference negotiations, bogged down by difficulties in agreeing on funding levels. Congress approved an extension of existing transportation programs until May 2005, putting off passing the bill until the 109th Congress.
Looking Ahead: The 109th Congress will quickly take up the transportation reauthorization bill, aiming to finish work on the bill before the latest extension runs out in May 2005.
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Water and Oceans
The House passed a damaging bill (H.R. 2828) to authorize the California Bay-Delta Restoration Program, or CalFed, in July 2004. CalFed is a joint project of California and the federal government to restore the San Francisco Bay-Delta system and improve water management in the state. Although the bill authorizes $389 million in federal funding over four years, it contains anti-environment provisions that undermine ecosystem restoration efforts. The Senate also passed a CalFed bill based largely on the House version. Both bills threaten fisheries in the Delta region and do not include adequate funding for ecosystem restoration or water use efficiency. In October 2004, the House accepted the Senate version and sent the bill to the president.
Two national commissions, the Pew Oceans Commission and the National Commission on Ocean Policy, released reports detailing the declining health of the world's ocean ecosystems during the 108th Congress. In July 2004, leaders of the House Oceans Caucus introduced OCEANS-21 (H.R. 4900), a comprehensive bill that would establish a national policy to protect, maintain and restore ocean ecosystems. The bill, which builds on recommendations of the two reports, would provide necessary mechanisms for ensuring an ecosystem-based approach to oceans management. It also would create national ocean science and education programs to better coordinate management decisions and heighten public awareness of the importance of healthy oceans and coasts. No votes were held on the bill, which was primarily introduced in the 108th Congress to set the stage for debate in the 109th.
In the Senate, the Commerce Committee approved the National Ocean Policy and Leadership Act (S. 2647) in September 2004. The bill would increase the independence of the National Oceanic and Atmospheric Administration and establish that the agency's mission is to protect and restore healthy and productive oceans. A complementary but narrower bill (H.R. 4546) passed the House Environment, Technology and Standards subcommittee and will provide a mission for NOAA's science programs.
Looking Ahead: Oceans legislation will be reintroduced in the 109th Congress and the relevant committees are expected to hold more hearings on ocean protection.
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The House Resources Committee approved two damaging bills to limit the Endangered Species Act. One bill (H.R. 2933) would have eliminated most protections for critical habitat for endangered species. The other bill (H.R. 1662) would have limited the kinds of scientific information that could be used by federal resource managers when making decisions about how to protect endangered species. The bill also would have created new hurdles to species protection by adding more bureaucratic review and requiring additional data for species recovery decisions. Neither bill passed the full House. Nevertheless, the Pentagon received broad exemptions from the Endangered Species Act and the Marine Mammal Protection Act in the FY04 Defense Authorization bill.
Looking Ahead: Congressional Republicans have made "reform" of the Endangered Species Act a top priority, and a full assault on the Endangered Species Act is expected in the 109th Congress.
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Nominations and Appointments
After Christie Whitman resigned as administrator of the Environmental Protection Agency, President Bush nominated Utah Governor Michael Leavitt to replace her in August 2003. Environmentalists expressed concern about the nomination because of Gov. Leavitt's record of ignoring science that did not support his political positions, lax enforcement of environmental regulations and backroom negotiations to undermine environmental protections. Gov. Leavitt's confirmation process was marked by a Democratic boycott of a committee vote on the nomination because senators felt they had not received adequate answers to the more than 400 questions submitted at Gov. Leavitt's hearing. The committee ultimately approved Gov. Leavitt and sent his nomination to the Senate floor. Final Senate approval in October 2003 ended two months of debate over the nomination.
Looking Ahead: In December 2004, President Bush nominated Administrator Leavitt for a cabinet position as Secretary of Health and Human Services. His successor at the EPA has not yet been named, but in the 109th Congress the Senate will go through its third confirmation process for a Bush administration EPA chief.
During the 108th Congress, environmentalists expressed concerns about three of the president's judicial nominees: Miguel Estrada, William Pryor, and William Myers.
Early in the 108th Congress, Miguel Estrada was nominated as a judge for the U.S. Court of Appeals for the Washington, DC Circuit. Mr. Estrada's questionable environmental record was especially troubling because, as the court empowered to hear most cases challenging environmental rulings and regulations, the DC Court of Appeals is critical to environmental protection. Environmentalists joined a coalition of Hispanic, African-American and other groups in opposing the nomination on the basis of Mr. Estrada's lack of judicial experience and his failure to answer questions on his legal views posed by members of the Senate Judiciary Committee. Senate Democrats filibustered his nomination, successfully blocking a vote on the nominee seven times over five months. In September 2003, Mr. Estrada asked the White House to withdraw his name from consideration.
In July 2003, Senate Democrats succeeded in filibustering the nomination of William Pryor to the Eleventh Circuit Court of Appeals because he was viewed as having used his position as Alabama's attorney general to aggressively push a radical political agenda that included hostility to laws that protect public health and the environment. As attorney general, Mr. Pryor challenged the constitutionality of key environmental protections contained in the Endangered Species Act and the Clean Water Act, and opposed EPA efforts to enforce the Clean Air Act against the nation's dirtiest coal-fired power plants. In February 2004 President Bush bypassed the Senate while Congress was on recess and gave Mr. Pryor a temporary appointment to the court.
In 2004, Senate Democrats filibustered the nomination of William Myers to the Ninth Circuit Court of Appeals. President Bush had previously named Mr. Myers, once a lobbyist for the mining and grazing industries, to the post of top lawyer for the Department of the Interior. Mr. Myers resigned from that position amid accusations of ethics violations surrounding numerous meetings with former clients from industries that use public lands. He also had sharply criticized fundamental environmental protection laws, such as the Endangered Species Act and the Clean Water Act, and had opposed programs that protect federal lands in their natural state, such as designation of wilderness and roadless areas.
Looking Ahead: President Bush will continue to make numerous lower and appeals court appointments throughout the 109th Congress, and also may have the opportunity to fill one or more Supreme Court vacancies over the next four years.
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last revised 12.21.04
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