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62–132 2010

APPROACHING MIDNIGHT: OVERSIGHT OF THE 

BUSH ADMINISTRATION’S LAST MINUTE 

RULEMAKINGS 

HEARING 

BEFORE THE

SELECT COMMITTEE ON 

ENERGY INDEPENDENCE 

AND GLOBAL WARMING 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

DECEMBER 11, 2008 

Serial No. 110–52 

( 

Printed for the use of the Select Committee on 

Energy Independence and Global Warming 

globalwarming.house.gov 


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(II) 

SELECT COMMITTEE ON ENERGY INDEPENDENCE 

AND GLOBAL WARMING 

EDWARD J. MARKEY, Massachusetts, Chairman 

EARL BLUMENAUER, Oregon 

JAY INSLEE, Washington 

JOHN B. LARSON, Connecticut 

HILDA L. SOLIS, California 

STEPHANIE HERSETH SANDLIN, 

South Dakota 

EMANUEL CLEAVER, Missouri 

JOHN J. HALL, New York 

JERRY MCNERNEY, California 

F. JAMES SENSENBRENNER, JR., 

Wisconsin, Ranking Member 

JOHN B. SHADEGG, Arizona 

GREG WALDEN, Oregon 

CANDICE S. MILLER, Michigan 

JOHN SULLIVAN, Oklahoma 

MARSHA BLACKBURN, Tennessee 

PROFESSIONAL STAFF

GERARD J. WALDRON Staff Director 

ALIYA BRODSKY, Chief Clerk 

THOMAS WEIMER, Minority Staff Director 


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C O N T E N T S 

Page 

Hon. Edward J. Markey, a Representative in Congress from the Commonwealth of Massachusetts, opening statement .................................................... 1 

Prepared statement .......................................................................................... 3 

Hon. Emanuel Cleaver II, a Representative in Congress from the State of 

Missouri, opening statement ............................................................................... 5 

Prepared statement .......................................................................................... 6 

Hon. John Hall, a Representative in Congress from the State of New York, 

opening statement ................................................................................................ 7 

Hon. Jay Inslee, a Representative in Congress from the State of Washington, 

opening statement ................................................................................................ 8 

WITNESSES

Robert Kennedy Jr., Chairman, Waterkeeper Alliance ........................................ 8 

Prepared statement .......................................................................................... 12 

Jamie Rappaport Clark, Executive Vice President, Defenders of Wildlife ......... 22 

Prepared statement .......................................................................................... 25 

Answers to submitted questions ...................................................................... 128 

Jeffrey Holmstead, Partner, Bracewell & Giuliani LLP ....................................... 35 

Prepared statement .......................................................................................... 37 

John Walke, Clean Air Director, Natural Resources Defense Council ................ 40 

Prepared statement .......................................................................................... 43 


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APPROACHING MIDNIGHT: OVERSIGHT OF 

THE BUSH ADMINISTRATION’S LAST 

MINUTE RULEMAKINGS 

THURSDAY, DECEMBER 11, 2008 

HOUSE OF REPRESENTATIVES, 

SELECT COMMITTEE ON ENERGY INDEPENDENCE

AND GLOBAL WARMING, 

Washington, DC. 

The committee met, pursuant to call, at 10:00 a.m. in Room 210, 

Cannon House Office Building, Hon. Edward J. Markey [chairman 

of the committee] presiding. 

Present: Representatives Markey, Inslee, Cleaver, and Hall. 

Staff Present: Morgan Gray. 

The CHAIRMAN. Welcome, ladies and gentlemen, to this Select 

Committee on Energy Independence and Global Warming hearing. 

While the clock may be winding down on the Bush administration’s 

time in office, its regulatory damage is unfortunately far from over. 

The administration is currently working on finalizing a number of 

last minute rule changes that, if enacted, will have serious negative impacts on our environment long after this administration has 

left office. Those proposed midnight rules are so numerous and far 

reaching that they would harm everything from the quality of our 

air and water to our public lands, to the survival of endangered 

species and our warming climate. 

Indeed, the Bush administration is on pace to do almost as much 

damage to our environment in its last 8 weeks in office as it did 

over the last 8 years. The administration has set its regulatory 

sights on two of our Nation’s longest standing and most important 

environmental laws. The Environmental Protection Agency is attempting to push through multiple rules that will severely weaken 

clear air, degrading air quality of all Americans and worsening our 

climate crisis. Meanwhile, the Department of Interior is seeking to 

gut the Endangered Species Act by removing scientific input weakening protections for iconic species like the polar bear and preventing consideration of the impacts of global warming. 

The administration is seeking to make these sweeping changes 

to the Endangered Species Act while minimizing public input and 

review. Recently, the Bush administration rushed through consideration of 300,000 comments on the proposed rule in 32 hours. And 

then provided a mere ten days for the public to review the environmental assessment of the changes. The administration is also pushing to ease restrictions on some of the most destructive practices 

for our climate. The Interior Department is in the process of 


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issuing rules that will remove key protections against mountaintop 

removal mining and allow the development of oil shale in 2 million 

acres of western public lands. 

With so much work to be done on the economy, energy and 

health care it is unfortunate that President-elect Obama and the 

Democratic Congress will have to expend so much time recovering 

from the regulatory nightmare of these midnight rulemakings. 

Sadly, these rule changes are not a deviation from the Bush administration record. They are the culmination of 8 years of industry 

handouts and environmental deregulation. By ramming through 

these eleventh-hour regulations, President Bush will simply cement 

his legacy as the most anti-environmental President in our Nation’s 

history. 

Today the Select Committee has convened an oversight hearing 

with a panel of environmental and regulatory experts to further examine some of the most egregious of those last-minute rule 

changes. It is imperative that the Bush administration not be allowed to finalize these rules under the cover of darkness without 

public scrutiny. It is amazing what casting a little sunlight on 

these midnight regulations can do. Late yesterday afternoon, the 

EPA announced that it would drop its attempt to issue a regulatory 

loophole that would have allowed dirty power plants to produce 

even more air pollution and heat trapping emissions, which had 

been recommended by the Cheney secret energy task force. This reversal prevented a rule change that would have increased global 

warming pollution by the equivalent of adding 50 million cars to 

the roads. In addition, the EPA subsequently confirmed reports 

that it would also abandon its push to roll back regulations on air 

pollution in our national parks and wilderness areas. The committee and this Congress will continue to keep a watchful eye on 

the Bush administration’s regulatory actions until they have 

turned off the lights at 1600 Pennsylvania Avenue once and for all. 

Now, let me turn and recognize the gentleman from Missouri, Mr. 

Cleaver, for an opening statement. 

[The prepared statement of Mr. Markey follows:] 


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Mr. CLEAVER. Thank you, Mr. Chairman. And thank you for this 

hearing, because I think that it is important for the Nation to understand what is actually taking place. As the Bush administration 

winds down, they are also winding up their efforts to do further 

damage to the U.S. environment. And I would hope that through 

this hearing and testimony from our witnesses that we will be able 

to alert not only our colleagues here in Congress, but the people 

around this Nation who are concerned that their children and their 

children’s children might not have the opportunity to live in an environment that is conducive for human habitation if these moves 

by the administration continues. 

The administration of Barack Obama to come in is hiring and 

bringing in new staff, but at the same time, we are going to have 

to look at this bold and reckless action that is taking place right 

now around irresponsible rule making. So I look forward, Mr. 

Chairman, to having the opportunity to become dialogical with our 

witnesses and to sound the alarm to the American public. I yield 

back the balance of my time. 

[The prepared statement of Mr. Cleaver follows:] 


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The CHAIRMAN. Great. The gentleman’s time is expired. The 

Chair recognizes the gentleman from New York, Mr. Hall. 

Mr. HALL. Thank you, Mr. Chairman, for holding this important 

hearing, and thank you to our witnesses today for being here, especially my fellow New Yorker, Mr. Kennedy. I am pleased that we 

are holding this hearing today to call attention to these several socalled midnight rules affecting the environment that the outgoing 

administration has proposed. They apply to very technical subject 

matter that is often overlooked by the media, particularly in the 

wake of all the press coverage associated with the incoming administration. But if allowed to stand, these rules could have very serious long-term effects on human health, the environment. And Congress has a responsibility to conduct appropriate oversight of these 

actions. Take, for example, just three of the regulations under consideration here today. First, if allowed to be implemented the administration’s rule changing, the section 7 consultation process 

under the Endangered Species Act could have far reaching implications for how the Federal Government protects endangered species. 

Section 7 of the ESA requires Federal agencies to conduct with the 

Fish and Wildlife Service and/or the National Marine Fishery Service. When either of the two agencies determine that a Federal 

agency’s action could impact a threatened or endangered species 

the purpose of that consultation is to seek solutions to mitigate any 

harmful affects on wildlife. 

The proposed final rule awaiting action of OMB would reverse 

this process, instead allowing Federal agencies the discretion their 

own discretion as to whether they need to consult with the services. 

The effect of this rule would be to take away the decision making 

authority from trained biologists and instead place it in the hands 

of political appointees in the bureaucracy. It is yet another attempt 

to politicize decisions that should be based purely on sound science. 

The administration also proposes weakening the Clean Air Act 

with respect to pollution in the national parks. The EPA currently 

measures air pollution in the national parks based on a 3-hour and 

24-hour increment. A proposed final rule awaiting action to OMB 

would change the measurement metric to annual pollution averages, thus allowing for significant spikes in pollution during the 

peak summer months. The practical effect of this rule change is to 

make the air dirtier in our national parks, expose visitors to all the 

risks ranging from asthma to heart disease and others that are associated with air pollution. The administration is also using a tortured interpretation of section 4(d) of the Endangered Species Act 

to avoid issuing regulations to polar bears recently listed as threatened under the Act. 

Section 4(d) requires that the Secretary issue regulations to protect threatened species. But in the regulations issued and awaiting 

final approval the Secretary effectively exempts oil and gas companies and their activities from having to develop plans to protect 

polar bears and to mitigate impacts on their habitat. It also limits 

the applicability of consideration of climate change with respect to 

the polar bear listing despite overwhelming evidence that climate 

change is responsible for habitat loss. 

These are just three examples of midnight regulations pending at 

OMB that will affect the environment, human health and wildlife. 


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And the hearing today will touch on many more unfortunately. It 

is imperative that we examine these so that the House can take 

whatever actions necessary to reverse them or change them so they 

reflect the intent of Congress when it passed the statutes originally. Thank you, Mr. Chairman, and I look to the testimony of our 

witnesses and I yield back. 

The CHAIRMAN. The gentleman’s time is expired. The Chair recognizes the gentleman from Washington State, Mr. Inslee. 

Mr. INSLEE. Thank you. I want to thank our witnesses, all of who 

have been doing great service for the country and the environment 

during the long darkness, environmental darkness of the Bush administration. I want to thank you for keeping the hope alive during 

that long 8 years. I do want to express disappointment, if not 

shock, that this administration is going out the way they have governed, which is with great arrogance towards the public and great 

indifference to the species they have a responsibility to protect. 

And I want to thank the Chair for holding this hearing, because 

I would look at this as just sort of a final capping of the environmental nightmare of the Bush administration and the beginning of 

our effort to restore integrity to the law and to our environmental 

programs in this country. And I think we should use this as a 

springboard to be back here January 6th to really redouble our efforts to following the law. Thank you. 

The CHAIRMAN. Great. The gentleman’s time has expired. Now, 

we will turn to our witnesses. And our first witness today is Mr. 

Robert F. Kennedy, Jr., who is President of the Waterkeeper Appliance. Mr. Kennedy is one of our Nation’s foremost champions for 

clean water and clean air, who has led the fight to restore the Hudson River and protect New York City’s water supply. For his environmental leadership, Mr. Kennedy was named one of Time Magazine’s Heroes of the Planet. He is a tireless advocate, a prolific author and a living environmental legend. 

STATEMENTS OF ROBERT KENNEDY, JR., CHAIRMAN, 

WATERKEEPER ALLIANCE; JAMIE RAPPAPORT CLARK, EXECUTIVE VICE PRESIDENT, DEFENDERS OF WILDLIFE; JOHN 

WALKE, CLEAN AIR DIRECTOR, NATURAL RESOURCES DEFENSE COUNCIL; AND JEFFREY HOLMSTEAD, PARTNER, 

BRACEWELL & GIULIANI LLP. 

The CHAIRMAN. And we welcome you, Mr. Kennedy. Whenever 

you are ready, please begin. 

STATEMENT OF ROBERT F. KENNEDY, JR. 

Mr. KENNEDY. Thank you, Mr. Chairman. I want to start just by 

expressing my gratitude to the Capitol Police for incredible detective work this morning of recovering my suitcase, my briefcase 

from the taxicab that took off when I went to check whether the 

Capitol door was open. I think it involved looking at some tapes 

and enlarging a license plate. But they did get my testimony back 

to me only moments ago and they were incredibly nice. And I also 

want to thank you, Mr. Chairman, for your leadership on this 

issue, as well as my friend, Congressman Jay Inslee, Congressman 

John Hall and Congressman Cleaver all of whom have demonstrated extraordinary leadership on this issue. We have been 


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fighting a rear door guard action. Over the past 8 years, we had 

the finest environmental laws in the world in this world that we 

passed, 28 major environmental laws that we passed after Earth 

Day 1970. 

The last 8 years—if you look at—as you pointed out, this is the 

worst environmental administration that we have ever had in 

American history, bar none. If you look at NRDC’s Web site, you 

will see over 400 major environmental rollbacks that have been 

promoted or implemented by this White House over the past 8 

years as part of a deliberate concerted effort to eviscerate 30 years 

of environmental law. It has been a stealth attack. The White 

House has used all kinds of ingenious machinations to conceal this 

radical agenda from the American people, including Orwellian rhetoric. When they wanted to shore the forests, they call it the 

Healthy Forest Act. When they wanted to shore the air they call 

it the Clear Skies Bill. Most insidiously, they put polluters in 

charge of virtually all the agencies of government that are supposed to be protecting Americans from pollution. 

In the head of the forest service, they put in a timber industry 

lobbyist Mark Ray, probably the most rapacious in history. As head 

of public lands and mining industry lobbyist, Steven J. Griles, now 

serving a ten-month jail sentence. But Mr. Griles, for 20 years, has 

been saying that he believes that public lands are unconstitutional. 

And they put him in charge of public lands. In the head of the air 

division, Mr. Holmstead, who is sitting to my left, who has been 

during virtually all of his career an attorney for the worst polluters 

in this country, particularly utility air polluters as second in command of EPA, a Monsanto lobbyist. As head of the Superfund, a 

woman whose last job was teaching corporate polluters how to 

evade Superfund. The President’s chief environmental advisor Philip Cooney, the head of Council on Environmental Quality, was a 

lobbyist for the American Petroleum Institute. 

In addition to that, these people very cleverly and very ingeniously, over the past 5 years, because the American public supports these laws as you know, but they have deviously and ingeniously used riders, used all kinds of alternations and guidance 

and interpretations and then back-door regulatory manipulations 

in order to do this, in order to eviscerate these laws out of sight 

of the American public. And these last—this final effort that President Bush and his cronies are attempting is some of the most, we 

are seeing some of the most damaging efforts of all to finally, to 

take down the final safeguards of the environment and public 

health that have been erected by Congress, Republicans and Democrats in Congress in the White House over the past 30 years. 

I filed very detailed testimony about some of the worse of these 

actions. But I just wanted to give you a real life expression of what 

is going on. I flew over only a few weeks ago over the Appalachian 

Mountains over eastern Kentucky and West Virginia, mainly over 

the Cumberland plateau. If the American people could see what I 

saw on that trip there would be a revolution in this country. We 

are literally cutting down the Appalachian Mountains, these historic landscapes where Daniel Boone and Davey Crockett roamed. 

The Appalachians, Chairman, were a refuge during the place of the 

Ice Age 20,000, 12,000 years ago, when where I live and where 


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Congressman Hall at the district that he represents was under 2 

miles of ice at that time. And the rest of North America turned into 

a tundra where there was no forests. 

And the last refuge for those forests was the Appalachian Mountains. And when the tundras withdrew when the glaciers withdraw 

all of North America was reseeded from the seed stock in those forests. So it is the mother forest of all of North America. And that 

is why it is the most diverse and abundant for tempered forests in 

the world, because it is the longest living. And today, these mining 

companies with the help of their indentured servants in the White 

House are doing what the glaciers couldn’t accomplish, what the 

Pleistocene ice age couldn’t accomplish, which is to flatten the Appalachian Mountains and destroy those forests. 

They are using these giant machines called drag lines which are 

22 stories high. I flew under one of them in a Piper Cub. They cost 

half a billion dollars, and they practically dispense with the need 

for human labor, which indeed is the point. When my father was 

fighting strip mining in Appalachia back in the 1960s I remember 

a conversation that I had with him when I was 14 years old where 

he said to me, they are not just destroying the environment, they 

are permanently impoverishing these communities because there is 

no way that they will ever be able to regenerate an economy from 

those barren moonscapes that are left behind. And he said, they 

are doing it so they can break the unions. 

And that is exactly what happened. When he told me that there 

were 140,000 unionized mine workers in West Virginia digging coal 

out of tunnels in the ground. Today there are fewer than 11,000 

miners left in the State. Very few of them are unionized because 

the strip industry isn’t. They are taking more coal out of West Virginia than they were in 1968. The difference is back then at least 

some of that money was being left in the State for salaries and 

pensions and reinvestment in those communities. Today virtually 

all of it is leaving the State and going straight up to Wall Street 

to the big banking houses—well, to the corporate headquarters of 

Arch Coal, Massey Coal and PV Coal, mainly Massey Coal, and 

then to the big banking houses like Bank of America and Morgan 

which own these operations. 

Ninety-five percent of the coal in West Virginia is owned by outof-State interest, which are liquidating the State cash literally, 

using these giant machines and 2,500 tons of explosives that they 

detonate every day in West Virginia. The power of a Hiroshima 

bomb once a week. They are blowing the tops off the mountains to 

get at the coal seams beneath. Then they take these giant machines and they scrape the rock and debris and rubble into the hollows and into the adjacent river valleys. They flatten out the landscapes, they flatten out the valleys, they have already flattened 

400,000 acres of the Appalachian Mountains. By the time they get 

done within a decade, if this rule goes through and we don’t, and 

you don’t succeed in getting rid of it, they will have flattened 2,200 

miles, an area the size of Delaware. According to EPA, they have 

already buried 1,200 miles of America’s rivers and streams, these 

critical headwater streams that are critical to the hydrology and to 

the water quality and to the abundance of the wildlife and the forests of those regions. 


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It is all illegal. You cannot, in the United States, under the 

Clean Water Act, dump rock, debris and rubble into a waterway 

without a Clean Water Act permit, and you can never get such a 

permit. So in talking with the Commonwealth, my good friend, Joe 

Lovitt, sued the companies in Federal Court in front of a conservative Republican Federal judge, Judge Charles Hayden. And Judge 

Hayden, during that hearing, I want to tell you this, he said to the 

Corps of Engineers colonel who was there to testify, he said, you 

know this is illegal, it says so in the Clean Water Act, how did you 

happen to start writing these permits to allow these companies to 

break the law and engage in this criminal activity? 

And he said, quote—the colonel answered him and said, quote, 

unquote, ‘‘I don’t know, your Honor, we just kind of oozed into it.’’ 

And Judge Hayden, at the end of that hearing, declared—said exactly what I just said, it is all illegal, it has been illegal since day 

one, and he enjoined all mountaintop mining. Two days from when 

we got that decision, lobbyists from PB Coal and Massey Coal met 

in the back door of the Interior Department with Gale Norton’s 

first deputy chief, Steven J. Griles, who was a former lobbyist for 

those companies, and together they rewrote the interpretation of 

one word of the Clean Water Act, the definition of the word fill, to 

change 30 years of statutory interpretation and make it legal as it 

is today, not just in West Virginia, but in every State in this country, to dump rock, debris, rubble, garbage, any solid material into 

any waterway of the United States without a Clean Water Act permit. All you need today, according to the administration, is a rubber stamp permit from the Corps of Engineers, which, in some districts, you can get over the telephone or through the mail. 

Now, the last vestige of protection that we had in West Virginia 

was a stream buffer zone law that was upheld also by Judge 

Charles Hayden, which said that you can’t do this if you are within 

100 feet of a stream. Well, this is the law today that this administration is trying to get rid of before it leaves office to make it so 

there is absolutely no way, there is not a single obstacle or impediment for these companies coming and just flattening the entire Appalachian chain. 

Now, I think I have run out of time for my prepared statement. 

I wanted to talk about CAFOs because they are even worse, but 

you have my testimony here. 

[The statement of Mr. Kennedy follows:] 


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The CHAIRMAN. And I think you are going to have plenty of time 

and interest in the members continuing this discussion with you. 

We thank you, Mr. Kennedy. I might also note that one of the 

great citizens of the United States is here with us as well. Mr. Kennedy’s mother, Ethel Kennedy, is sitting out here as well in this 

hearing. So let me now turn and recognize our second witness, Ms. 

Jamie Rappaport Clark, who is executive vice president for Defenders of Wildlife. She has spent 20 years in government service, primarily with the U.S. Fish and Wildlife Service where she served 

as director from 1977 to 2001. During her tenure as director, we 

added 2 million acres to the National Wildlife Refuge system and 

established 27 new wildlife refuges. Welcome Ms. Clark. Whenever 

you are ready, please begin. 

STATEMENT OF JAMIE RAPPAPORT CLARK 

Ms. CLARK. Thank you, Mr. Chairman. And I am delighted to be 

here this morning. Members of the committee, I appreciate your 

support. It is hard to follow the eloquent testimony of Mr. Kennedy. But what I will add to that is just the sheer frustration of 

the last 8 years. As you mentioned, I was a public servant my entire career up until the day Mr. Bush took office. And it is hard 

to describe what the last 8 years have done to my former colleagues trying their hardest to protect the environment and our 

natural resources over these years. They are demoralized and have 

really hit their limit. So I am delighted to see this oversight. 

I also appreciate the opportunity to shed some light on efforts by 

this administration to dismantle longstanding regulations and policies that protect endangered species in our cherished public lands. 

In its waning days, this administration is carrying out a calculated 

strategy to undo decades, decades of commitment to natural resources conservation when it has nothing more to lose and it can 

largely escape the scrutiny of this Congress and the general public. 

I am going to highlight just a few, there are plenty, but a few of 

the most damaging regulatory assaults this morning. 

First, as was mentioned, is the rewrite of the section 7 regulations under the Endangered Species Act that implement interagency consultation proposed last August. The consultation regulations are the absolute heart of the Endangered Species Act. But the 

administration is on the verge of allowing any Federal agency to 

avoid consultation if the agency unilaterally decides that an action 

it sponsors is not anticipated to result and take of illicit species, 

and its other effects are insignificant or unlikely not defined. 

Now this might sound reasonable. I have been at this for many 

years on the ESA. And this notion that the government agencies 

can evaluate their own actions sure sounds reasonable. Why have 

consultation, if there is no effects? Sounds bureaucratic. But figuring out whether an action will cause take or other effects often 

is the issue at hand, and why we have an inter-agency consultation 

process. It is a very difficult and complex evaluation. On many occasions, the question of whether take will occur is not readily apparent. It requires an in-depth knowledge of the species’ behavior, 

biology and extent throughout its entire range, just not in the area 

of the project. 


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Current rules allow Federal agencies to decide whether there will 

be adverse effects from their actions today, but the agencies must 

obtain the concurrence from the experts at the Fish and Wildlife 

Service at the National Fishery Service. Under this administration’s proposal, however independent species experts at one of the 

services no longer are in the review loop. They no longer review 

Federal agency judgments about the effects of actions that it sponsors, clearly allowing the fox to guard the chicken coop. This administration is also proposing to drastically narrow the consideration of Federal agency impacts even when consultation does occur. 

There will be no review of Federal agencies that contribute to affect other species, even if it is substantial impacts if the effects 

would still occur to some extent without the action. Even though 

scientific evidence builds every day the greenhouse gas pollution is 

a significant cause of adverse effects on wildlife the proposed rules 

would make it nearly impossible to consider these impacts on species, such as the polar bear that we all know is threatened by global warming. 

The Congress should act promptly to stop this dismantling of section 7 consultation. If legislation isn’t successful by stopping the 

proposed rule, the incoming administration of President-elect 

Obama should prevent it from going into effect, if possible. Or take 

steps to minimize its effect while undoing the regulations finalized 

in the last days. Second, is this administration’s repackaged effort 

to prematurely delist the gray wolf in the Northern Rocky Mountains, one of this country’s most amazing and successful species recovery efforts of the last century. 

Although two separate Federal Court decisions have cast doubt 

on the Bush administration’s delisting efforts due to concerns about 

genetic isolation and the adequacy of State management plans that 

hasn’t kept this crowd from still trying to push its same failed 

delisting rule out the door before they leave office next month. Congress should act while it can to stop the proposed delisting of the 

gray wolf from going forward. Undermining one of the great conservation achievements of the last century should not be allowed 

at the 111⁄2 hour. 

The incoming administration should be given the opportunity to 

address the inadequacies of this current rule, hold together all the 

stakeholders involved, develop a science based management plan 

that will guide recovery and address the concerns of both people 

and wolves. Third, is the Bush administration’s abusive regulations 

to minimize protection for the polar bear. Last May compelled by 

a hearing held by you, Mr. Chairman, in the face of insurmountable scientific evidence indicating that polar bears in the United 

States face extinction by mid century in our lifetime due to global 

warming, the administration finally, after much delay, listed the 

polar bear as a threatened species. 

We had about a nanosecond to cheer when we realized that they 

lost no time in making sure that the listing would not result in any 

greater protection for the species by issuing concurrently a socalled section 4(d) rule under the Endangered Species Act with no 

notice and no opportunity for public comment. In my Federal career I have never seen that happen. The Bush administration has 


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been unbelievable. They argue that other laws and international 

treaties make the Endangered Species Act protection superfluous. 

In other words, business as usual is good enough for the polar 

bear. If that were true, of course, then the polar bear wouldn’t have 

needed the Endangered Species Act protections in the first place. 

The incoming Obama administration should rescind the illegal 4(d) 

rule and replace it with a rule that actually improves the polar 

bear’s chances of actually surviving and recovering. And finally, 

Mr. Chairman, the Bush administration has launched an incredible 

assault of last minute rulemakings on our public lands, and we 

could go on and on and on about that, including efforts that threaten our national parks and fast tracking of oil shale development 

that fails to protect people, our wildlife and the U.S. Treasury. 

The Bush administration’s assault on our Nation’s stewardship of 

endangered species and public lands presents challenges of unprecedented magnitude and scope for Congress and the incoming administration of President-elect Obama. We look forward to working 

with you under your leadership to restore our commitment to protection of these magnificent and irreplaceable natural resources. 

Thank you. 

[The statement of Ms. Clark follows:] 


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The CHAIRMAN. Thank you, Ms. Clark, very much. Our next witness is Mr. Jeffrey Holmstead. He is a partner at Bracewell and 

Giuliani. Previously, Mr. Holmstead served at the Environmental 

Protection Agency as assistant administrator for air and radiation. 

Prior to that, Mr. Holmstead was a partner at Latham and Watkins and served as associate counsel for President George H. W. 

Bush from 1989 to 1993. Welcome Mr. Holmstead. Whenever you 

are ready please begin. 

STATEMENT OF JEFFREY R. HOLMSTEAD 

Mr. HOLMSTEAD. Thank you, Mr. Chairman. I appreciate the 

chance to be here again today. And I always appreciate the opportunity to shed a little light on some of these issues. As you noted, 

my expertise is primarily in air pollution issues. And I am going 

to depart from my written statement. If I could just make a couple 

of points that I think should be interesting to everybody on this 

panel and folks up there as well. I always find these hearings interesting because of the failure to look at kind of the actual data 

that are out there. You and others on this panel have accused the 

Bush administration of eviscerating the Clean Water Act. I was 

amused to see your report about the radical anti-environmental 

agenda of the Bush administration. 

And so my question is this: How is it that air quality throughout 

the county is so much better today than it was 8 years ago. How 

is it that pollution is down significantly compared to 8 years ago. 

The fact of the matter is the Bush administration, at least in the 

areas that I know, has tried to achieve our environmental goals in 

the most sensible cost effective way. And we haven’t always been 

successful, and there are some things that I certainly wish we 

could have accomplished that we were not able to. But last night 

on the computer, as I was thinking about this hearing, I looked up 

on the EPA Web site where they actually track emissions, and 

these are actual emissions from coal-fired power plants, and I know 

my friend John Walke cares about those, Mr. Kennedy does as 

well. 

Eight years ago, SO2 emissions from coal-fired power plants were 

just a little over 13 million tons a year. Last year, the last year for 

which we have emissions measurements, those are now below 9 

million tons a year. So that is roughly a 35 percent reduction. The 

reduction in NOX emissions is even greater. In 1999, the emissions 

were about 2.4, I am sorry, 5.5 million tons of NOX, and last year 

they were 3.5 million. There are legitimate kind of regulatory policy questions. You may have a different view of the way we ought 

to do things, whether it is through aggressive enforcement or 

whether it is sort of through more effective regulatory programs. 

But the fact of the matter is the air is cleaner today in the United 

States because of actions taken by the first Bush administration, 

the Clinton administration and this Bush administration. It is an 

ongoing legacy that we all should be proud of. 

And the other thing that I would like to mention is EPA does 

careful analysis, and there is what 17,000 employees and a handful 

of political appointees, and most of the folks there are career staff 

who are dedicated public servants. They did an analysis of the 

most important health protections achieved by EPA in its history, 


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and they found three rules that were substantially more—that 

were far and away the most important rules that EPA has ever 

done. Number one was the phase down of lead in gasoline which 

took place back in the 1970s, 1980s. 

Number two was the Clean Air Interstate Rule which is now 

kind of in legal limbo because of a court case. But the second most 

important rule in terms of improving public health was issued 

under this administration, and the third was also issued under this 

administration, having to do with reducing diesel emissions. So 

again, I am entertained by some of the comments that have been 

made, but I find them troubling insofar as they are completely devoid of what has actually happened out there. 

So I know that there is a lot more force covered now in the U.S. 

than there was 20, 30 years ago. I am not an expert on public 

lands. I know something about the Endangered Species Act. And 

I just think it is a little disingenuous to suggest that the Endangered Species Act is the tool that anybody intended to deal with climate change. Climate change is an important issue. We have got 

to think about how to deal with it. But the way to deal with it is 

not by doing an Endangered Species Act consultation on hundreds 

of individual projects which collectively have less than a trivial impact on CO2 emissions. 

Let’s talk about the best way to achieve our goals instead of 

somehow suggesting that there is a calculated effort here by the 

Bush administration which has really made a lot of progress on all 

these environmental issues. Now, I can’t see the clock. I may be 

well past my time already. But rather than talking about midnight 

regulations, let’s talk about individual specific issues and what is 

the best way to achieve the objectives that I think we all share. 

Thank you very much and I really would be quite happy to answer 

any questions that anybody has. 

The CHAIRMAN. Thank you, Mr. Holmstead, very much. 

[The statement of Mr. Holmstead follows:] 


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The CHAIRMAN. And our final witness, Mr. John Walke, is the 

Clean Air Director at Natural Resources Defense Council. He, prior 

to joining the NRDC, Mr. Walke served at the Environmental Protection Agency where he helped implement the Clean Air Act. Mr. 

Walke is one of the preeminent experts on clean air issues in our 

country. We welcome you, sir. Whenever you are ready, please 

begin. 

STATEMENT OF JOHN D. WALKE 

Mr. WALKE. Thank you, Chairman Markey and members of the 

committee. I am pleased to appear before the committee for this 

important hearing. I am even more pleased that two harmful air 

pollution rules I addressed at length in my written testimony were 

abruptly abandoned by EPA yesterday, which renders nearly all of 

my written testimony moot, so I look forward to questions from the 

committee. 

In all seriousness, though, let me first answer Jeff’s question. 

How is it that the air is cleaner today? Fundamentally, because of 

steps taken by the Clinton administration and the first Bush administration, and even before that the Reagan administration, it is 

important to recognize something about clean air laws and rules in 

this country. There is basically an 8- to 10-year lag time between 

the time a rule is adopted and the time that the effects of a rule 

are felt. 

So important rules like the acid rain program passed by this 

Congress in 1990, the NOX SIP Call passed by the Clinton administration in the late 1990s are bearing fruit today and are responsible for the reductions that Mr. Holmstead mentioned. The rules 

adopted by the Bush administration are not. The diesel rule that 

they adopted, a positive rule, based upon successes they inherited 

from the Clinton administration and continued with the fine professional staff at EPA, and they deserve credit for that, the compliance states for that rule will not occur, by and large, to achieve 

their measurable meaningful reductions until after they leave office. 

The Clean Air Interstate rule, which was struck down in court, 

had compliance dates of 2010 and 2015. Their mercury rule 2010, 

2015, clear skies 2018. Again, there is a lag time and we will enjoy 

some of the benefits of their diesel rule, but thankfully will not 

enjoy the disbenefits of the rules that were struck down in court. 

Abandoning the two rules that were announced yesterday was the 

right thing to do. The power plant rule would have resulted in 

enormous emissions increase of smog and soot pollution. 

Mr. HOLMSTEAD. John, how can you say that? That is just not 

true. 

Mr. WALKE. I thought I was testifying now, but if you would like 

to testify again. 

The CHAIRMAN. There will be plenty of time. 

Mr. HOLMSTEAD. Very good. I look forward to that. 

Mr. WALKE. EPA’s rulemaking record itself projected that the 

rule would have increased pollution in entire counties throughout 

states like Indiana, Tennessee, Michigan, Arizona, Georgia, Ohio, 

Wisconsin, Pennsylvania, New York, Illinois and others. I took that 

from EPA’s own projections. As the chairman mentioned in his 


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opening statement, EPA projected in a letter to Congressman Waxman that the rule would have allowed a carbon dioxide emissions 

increase of 74 million tons per year. That is roughly equivalent to 

the total annual CO2 emissions of about 14 average coal-fired 

power plants or the annual emissions from 50 million vehicles. 

There are about 250 million vehicles in this country. That is onefifth of the total U.S. population. Adding 74 million tons of CO2 to 

the atmosphere each year would nearly double the amount that 

EPA removes under its voluntary Energy Star program. These 

were enormous emissions increases, and it is a very good thing that 

the rule was abandoned. The EPA yesterday acknowledged in 

scrapping these two highly controversial air pollution rules that 

they were classic midnight regulations and that EPA would not 

issue them for that reason. You can look at today’s Washington 

Post and New York Times articles. 

I welcome those explanations, but at the same time, we should 

recognize that they are deeply questionable explanations. On the 

very same day the EPA scrapped these two rules it issued, guess 

what, a midnight deregulation weakening a Clean Air Act rule governing emissions from factory farms and mines. The question of 

midnight regulations is unfortunately one that is not going away 

despite announcements like yesterday. With permission of the 

chairman, I would like to enter into the record a 60-page document 

prepared by EPA, it is an internal document that I obtained, and 

I don’t believe has been publicly released before. But it contains 

EPA’s own list of rules that they plan to adopt in 60 days from the 

Environmental Protection Agency. It is startling the number of 

days—the number of rules that will be issued and signed in December and January according to this own list. 

So I commend it to the Committee’s attention. EPA will issue 

controversial rules and harmful rules under the Clean Air Act by 

January 20th. They have told us they will do so. One, for example, 

will allow increased emissions from chemical plants, oil refineries, 

pharmaceutical plants and the like that have multiple uses of 

equipment. They also issued a rule just last month actually that 

will reduce the number of lead monitors that should be required in 

this country. After the rule was directly overruled by the White 

House less than 24 hours before the rule’s signature, it prohibited 

EPA from monitoring lead emissions from facilities that emit more 

than 1,000 pounds per year of lead. 

Instead, the White House allowed EPA only to monitor facilities 

emissions emitting more than 2,000 pounds of lead resulting in 

more than 200 lead polluters nationwide that will now go 

unmonitored. This will affect residents in Indiana, Michigan, Pennsylvania, Ohio, New York, Texas and Minnesota that will not have 

the benefit of lead monitors downwind of cement plants, oil refineries or lead smelters in their communities thanks to this irresponsible White House intervention. 

In conclusion I will just note that the Obama administration already has a lot to do to clean up air pollution and global warming 

pollution from power plants. We really should not saddle them with 

the additional insult and injury of these midnight regulations. 

Thank you. 

The CHAIRMAN. Thank you, Mr. Walke, very much. 


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[The statement of Mr. Walke follows:] 


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The CHAIRMAN. So let’s have a little discussion then, because 

some have asserted that the Bush administration’s midnight regulations are not really rushed and they are not really secretive. And 

that is a contention which is being made and that they are being 

properly implemented with all deliberation and proper review. Mr. 

Kennedy, could you respond to this assertion that they are, in fact, 

going through a proper regulatory process in their destruction of 

these rules. 

Mr. KENNEDY. There are many, many examples. I mean, normally, regulations, what the Bush administration has even said in 

the past in a court case over power plant regulations that I argued. 

We recently had Bush administration attorneys argue that it takes 

8 years to pass a regulation. 

These regulations, many of them in many, many of these instances, I mean, John Walke is just—I mean, this is actually a very 

heavy document that appears to have hundreds of rules in it, there 

is supposed to be notice and comment, there is supposed to be an 

opportunity for the public to comment on these rules to participate 

in the regulatory process, and I just don’t see how it is possible to 

issue—the public doesn’t even know this at this point. So this is— 

for the administration to claim that these are going through a normal regulatory process is just, is specious. 

The CHAIRMAN. Let me go to Mr. Walke and then we will go to 

you, Mr. Holmstead. Mr. Walke. 

Mr. WALKE. Chairman Markey, there is one easy task to determine whether a rule is being rushed or not. And that is when and 

whether the rule has been lodged for review at the White House. 

The Office of Management and Budget has either a 60- or a 90-day 

review period under executive order to look at final rules. And before I came, I looked at the OMB Web site and many, many of 

these rules, including ones that we know will be adopted by January 20th, have not even been sent over to the White House. They 

are not going to have their normal review, they are going to have 

a review that is by definition rushed. 

Now, that is a classic definition of midnight regulation to me. 

They are hurrying up these rules. The reason the rules were 

scrapped yesterday is not because they passed the November 1st 

deadline in the Josh Bolten memo as the White House is now 

claiming. Count the number of rules that have been issued since 

November 1st. There are many. By their own standard, they should 

not issue any more rules for the rest of the administration. Because 

as they said in The Post today, that would be a midnight regulation. They will not meet that test. This list proves it. And there are 

rules that the White House is looking at now that are going to be 

jammed out by the 20th. 

The CHAIRMAN. Mr. Holmstead what do you have to say about 

that. 

Mr. HOLMSTEAD. All I know is that EPA follows the Administrative Procedures Act. John is incorrect in saying that all these rules 

go through OMB review. Most of them don’t because OMB only reviews rules that are considered to be significant rules. And there 

is an ongoing discussion between OMB and many agencies. Look, 

it is a historical fact that near the end of every administration, 

there is a lot of things that get done because people respond to 


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deadlines. All of the issues that I know about have been in the regulatory process for years, right? And they have to go through a 

common period, and the ones that John doesn’t like have been out 

for public comment. And so the question is, is there something nefarious about trying to clean up the issues that you have been 

working on for years. 

Now, I don’t have privy to this particular list, and so I am a little 

surprised to hear that John and Mr. Kennedy both accusing the administration of violating the law. You would have to look at each 

one of these and say okay, was this a rule that went out for notice 

and comment? Is it a rule that qualifies as a significant rule? But 

the idea, and again, there are several articles that I refer to in my 

written testimony where there is a natural tendency in our system 

for every administration to try to finish its work before it leaves 

office. 

The record is held by the way by the Clinton administration, in 

terms of number of regulations or pages. The second most is the 

Carter administration. We will see how this administration ends 

up, but there is always a slug of things that people are trying to 

finish up before they leave office. But if they don’t the follow proper 

procedures they are clearly illegal. 

The CHAIRMAN. So we will come back to you, Mr. Walke, and Mr. 

Kennedy. What do you have to say to Mr. Holmstead? 

Mr. WALKE. Well, the Bush administration significantly expanded review by OMB down to guidance documents that they look 

at that don’t meet anyone’s definition of significant or impacts of 

$100 million or more. So they have been very selective in how they 

follow their own rules. But I think it is clear that these rules will 

be pushed out. And I should say, the rules in this list, as far as 

I can tell, have undergone public review and notice and comment. 

But that would be true of any midnight deregulation as well by 

definition unless they were flagrantly violating the EPA as Jeff 

said. But that still doesn’t obviate the fact that these are harmful 

midnight deregulations that they will—— 

Mr. HOLMSTEAD. But how can you say that without looking at 

the regulation and seeing what it says? 

Mr. KENNEDY. I have looked at the clean air regulations. 

Mr. HOLMSTEAD. There is that long list. You have got to look at 

the regulations and say is this a good one or is this a bad one. 

Mr. KENNEDY. That is why it is being entered into the record. 

Mr. HOLMSTEAD. Good. 

The CHAIRMAN. Mr. Kennedy, do you have any comment you 

would like to add at this point. 

Mr. KENNEDY. I think Mr. Walke has covered it. 

The CHAIRMAN. Great. Thank you. My time has expired. We will 

turn and recognize the gentleman from Missouri, Mr. Cleaver. 

Mr. CLEAVER. Thank you, Mr. Chairman. I am sure that all the 

administrations are trying to finish up their agenda. I don’t think 

that is any different. Do you think there has been this much activity by past Presidents, whether they were Democratic or Republican, with regard to the environment? Mr. Holmstead. 

Mr. HOLMSTEAD. You know, I am not sure. And the studies that 

have been done are not entirely satisfactory because they just look 

at the number of pages in the Federal Register that were issued 


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during the last three months, so I honestly don’t know the answer 

to that. But as you mentioned it is really quite clear that we all 

respond to deadlines and we know we are running out of time and 

we try to get our work done. 

So I know that there was a number of things done by the EPA 

right before the Clinton administration. And because of a concern 

about midnight regs when I got there one of the first things we did 

was review all the midnight regs. And what we discovered is that 

they had done a darn good job, with only one exception. There was 

one thing that we thought was done improperly. But a lot of these 

things were very controversial. 

Mr. CLEAVER. With regard to environment? 

Mr. HOLMSTEAD. Yes, these were all environmental. But we 

looked at some controversial rules and we decided the Clinton administration had done the right thing, even though they issued the 

rules on the last week of the administration. 

Mr. CLEAVER. Let me ask the other three witnesses, beginning 

with Ms. Clark. The Obama administration will take office on the 

20th. Of the midnight rulings that you have seen, and those, Mr. 

Walke, in your testimony are the most egregious and that the 

Obama administration will need to move quickly to either reverse 

or halt. What have you seen thus far that you think would require 

as rapid a response as possible. 

Ms. CLARK. I will start. Certainly the attempts to undermine the 

Endangered Species Act. What this administration has failed to do 

legislatively, and goodness they have tried, they have been quite 

persistent over the last 8 years, they failed to do it legislatively, 

they have tried to now accomplish administratively in the eleventh 

hour. So the section 7 regs have got to be overturned or thwarted. 

Clearly, regulations that impact or really undermine chances of 

survival for species we care deeply about, like the gray wolf, the 

polar bear, will need to be addressed. 

And then there is a whole host of public lands. This recent oil 

shale regulation that is devastating to over 11 million acres of land 

in Colorado, Utah and Wyoming. BLM, the Bureau of Land Management, has been particularly hard hit by this administration’s 

zeal to pay homage to their industry friends. And that whole agency deserves a look. There are a lot of regulations being finalized 

against the wishes of governors even in the west that will need to 

be addressed right out of the box. 

Mr. KENNEDY. Well, number one on my list would be the mountaintop removal that I talked about, the 100-foot stream buffer 

zone. Because the damage that will be caused as a result of—that 

will be allowed as a result of that rule will be welcome quick and 

it will be irreparable and it will be monumental literally destroying 

entire mountain ranges. Already 460 of the largest mountains in 

West Virginia have been taken down and are just holes in the 

ground. You can actually go to Google Earth and go to the home 

page and type in your zip code and you can look at the mountain 

that has been removed in order to heat your home. This will move 

the final restraints on that practice. 

So I would say that that would be number one on my list. The 

factory farming regulations removing the efforts by the administration to remove factory farms from not only the Clean Water Act but 


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also from CERCLA and EPCRA which regulate the air discharges 

from those facilities. But as you know, these are facilities that over 

the past 20-years farming has been transformed in this country 

and taken off the farms by a few large corporations which shoehorn 

millions of chickens into tiny cages where they literally can’t turn 

around and then dose them with hormones and arsenic so that 

they literally lay their guts out over a short miserable life. 

Hundreds of thousands of hogs are put into warehouses, again in 

tiny cages, where they produce millions of tons of waste. A hog produces ten times the amount of waste as a human being. So a facility with 100,000 hogs produces the same amount of fecal waste as 

a city of a million people. Well, the waste is as virulent and obnoxious and as dangerous as human waste and it should be regulated 

by the Clean Water Act, and under the law it was. But this administration has removed it from that regulation so that these big corporations could simply dump the waste into the waters or onto the 

land. 

And there was—the Bush administration, for 8 years, has been 

trying to completely remove all legal restraints on these practices. 

And this final regulation will, in fact, do that. So I would say that 

the regulations on factory farms are probably some of the worst. 

Mr. WALKE. Congressman, I would mention just two air pollution 

regulations. One recently in which EPA rejected the unanimous advice of its scientific advisors to weaken the health standards that 

govern smog pollution, our protections against smog pollution; EPA 

rejected those unanimous scientific recommendations when it 

adopted the ozone standard. And secondly a rule that we expect to 

be issued by the end of the term that I refer to in my written testimony in which EPA will create essentially a loophole in accounting 

gimmicks to allow oil refineries and chemical plants to pollute more 

under the Clean Air Act, carcinogens and smog and soot pollution. 

Mr. CLEAVER. Thank you, Mr. Chairman. 

I yield back. 

The CHAIRMAN. The gentleman’s time has expired. 

The Chair recognizes the gentleman from New York, Mr. Hall. 

Mr. HALL. Thank you, Mr. Chairman. 

Ms. Clark, in the rules that you have seen issued or cancelled or 

in any actions that you would have noticed over the last 8 years, 

has there been any effective regulation that you have seen that 

may help the overfishing and the depopulation of the fisheries of 

the northeast, something that has been written about a lot lately? 

Ms. CLARK. Unfortunately, not to my knowledge. And, in fact, the 

undermining of the Endangered Species Act changes that they 

have underway will potentially harm all listed species, 1,400 listed 

species, and those that are trending towards imperilment as well. 

So for those species that are in trouble in the ocean environment 

and may, in fact, deserve protection of the Endangered Species Act, 

this regulation will certainly hurt them. So I expect that the way 

that this government has gone about managing imperiled species 

will certainly result in more species being imperiled than less. 

Mr. HALL. And in your opinion, Ms. Clark, could the Fish and 

Wildlife Service have possibly adequately reviewed the 300,000 

public comments on the administration’s proposed Section 7 rule in 

the time they allotted for that work? 


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Ms. CLARK. Absolutely not. Because I know enough about a number of the comments, including many from this body, that were 

quite substantive in nature and to see from a career official this 

all-hands-on-deck call that went across the agency in an e-mail 

calling for anybody and anybody to come in from Tuesday through 

Friday to work 8 hours a day to analyze the almost 300,000 comments to then forward onto the Department of the Interior’s Solicitor’s Office, there is no way they could do much more than stack 

them in categories. 

What was also, though, significant about that e-mail and about 

the way the process was handled is indicative of what has happened in this administration, and that is, they have totally taken 

away the opinion—or disregarded is maybe another word—disregarded the opinion of the career biologist and in essence have totally politicized implementation of environmental law. So they in 

essence asked Section 7 biologists, experts on the law to come to 

town, and in fact, they couldn’t get enough of them. So they 

brought them from the Park Service and other agencies and said, 

okay, stack the comments so that you can then forward them to the 

Solicitor’s Office where they will be reviewed and analyzed for policy response. That just didn’t happen in my entire time in government. We had a very collegial relationship with the lawyers in the 

Solicitor’s Office, but they didn’t unilaterally make policy without 

biological understanding of the impacts of implementation of law. 

Mr. HALL. Thank you. 

Mr. Kennedy, I was wondering, have you seen or heard of any 

attempts or any machines being built to remediate the removal of 

mountain tops to try to restore the topography as it previously was, 

and have you any idea how expensive that would be? 

Mr. KENNEDY. The law says that once the mountains are moved 

and the coal has been extracted, that the company then has to restore the mountain top to its natural state and the soils to their 

natural state. They have to take the soils and put them back on 

and reclaim the area. But I have actually been on the reclaimed 

mountain tops. And what happened is at the State agency, which 

is a classic captured agency that is basically just a hand puppet for 

the regulated industry, along with the Office of Surface Mining and 

EPA under the Bush administration have approved an interpretation of the law to say that rock is the equivalent of soil, so that 

instead of putting soil on the mountain top, they can put rock on 

the mountain tops. And so they just take the rock and put it back. 

And when you walk on it, you are just walking on a huge rock pile 

where nothing can grow. There is some little kind of an exotic 

grass and some lichens that can grow on it. But these were areas 

that had some of the finest tempered forests on earth, and you will 

never see those forests again, ever, until we have another ice age. 

That is the kind of the level of deception, of public deception and 

the manipulation of these laws that we have seen unprecedented 

come out of the Bush administration. And the people who dream 

up these schemes are so venal and mendacious and dishonest because the law is there that says you have to grow the forest back. 

Everybody knows it. Everybody can read that law. And yet you 

have a conspiracy among these regulatory officials who, you know, 

who are basically just, as I said, indentured servants for the lobVerDate Mar 15 2010 04:55 Nov 19, 2010 Jkt 062132 PO 00000 Frm 00117 Fmt 6633 Sfmt 6602 E:\HR\OC\A132.XXX A132

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bying groups and for the industries that they regulated. And they 

come in there and plunder our natural resources and plunder the 

best of our country. 

I say one other thing just in answer to your earlier question. We 

just argued this week against EPA a case in the Supreme Court 

in which the Bush administration is trying to remove all regulations or weaken the regulations for fish kills at power plants. Now, 

power plants are the single greatest killer of fish in the oceans. The 

East Coast power plants by their own records kill a trillion fish a 

year on their intake screens, a trillion fish a year on their intake 

screens. There is a single power plant, the Salem Nuclear Plant in 

the Delaware River, that sucks up the entire fresh water flow of 

the Delaware every day. And it literally combs the life out of it. 

Martin Marietta, which is the company that put the man on the 

moon, that was hired by Salem Nuclear Power Plant to do its fish 

kill studies said that that plant alone kills 175 billion bay anchovies every year, 165 billion weakfish every year. And it stopped 

counting after that and said this is going to cause the crash of all 

the fish in the Delaware Estuary System which, in fact, happened. 

And so these power plants, you know, more than the commercial 

fishery, are impacting huge, huge, mortalities on our oceangoing 

fish, and the Bush administration is doing everything in its power 

to try to fight the regulations that would require these plants to 

install the best available technology for preserving fish. 

Mr. HALL. Thank you. 

I will just, if I may, just wrap up by saying, in response to comments by Mr. Holmstead and Mr. Walke, that in New York, first 

of all, the last couple of summers we have had hot spells, extended 

heat spells where the entire State has been under an air quality 

alert. Now, I remember—I have grown up in Elmira and spent 

most of my life in the Hudson Valley. And I remember many times 

having cities be under an air quality alert, the City of Poughkeepsie, the City of Peekskill, the City of New York, Albany, what 

have you. But having the farm land and the forest land and the 

Adirondacks, the entire State, be under an air quality alert where 

people with asthma or respiratory problems, the elderly and the 

young are told to stay indoors—not in specific cities, but in the entire State—to me that has only happened in the last couple of 

years, and it is inconsistent with a statement that air quality is 

better. I realize that is not a scientific sample of the entire country, 

but it is an experience that this State has had. 

And lastly, regarding whether or not this is intentional and systematic, you know, responding once again to you, Mr. Holmstead 

and those who say that this is somehow different, we had the administrator of EPA sit here on the 1-year anniversary of the Supreme Court decision in Mass. V. EPA and refuse to give us the 

internal documents that the staff at EPA had been working on. 

And we were unanimously, both sides of the aisle, forced to vote 

for a subpoena for those documents because the administration, as 

they do with the VA and as they do with the Justice Department 

and as they do across all branches of the executive, refused to 

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istration and one that believes in the law and in the Constitution 

and checks and balances. 

And I yield back. 

The CHAIRMAN. The gentleman’s time has expired. 

The Chair recognizes the gentleman from Washington, Mr. Inslee. 

Mr. INSLEE. Thank you. 

Mr. Holmstead, you made a comment in your opening statement 

that you are entertained by some of the statements that were made 

by some of your witnesses, and I want to tell you that this was not 

an entertaining experience for us. Maybe you think it is a joyous 

occasion because it is the last hearing the U.S. Congress will hear 

about the multiple depredations and failures of environmental policy by this administration. But it is not something that I find entertaining. 

I just find it flabbergasting that you come before us to crow 

about the achievements of this administration, saying that pollution is better than when this administration came in. In fact, the 

carbon dioxide levels of the planet have risen significantly, which 

is the number one, most dangerous, most threatening pollution. 

And while that has been occurring, the only strategy that the Bush 

administration has had to deal with it is, one, to gut the listing of 

the polar bear to make sure that it really didn’t mean anything; 

it didn’t occasion the reduction of carbon dioxide. And, number two, 

the only other strategy the administration has had is to be at least 

partially responsible for a major recession that might reduce economic activity, which is not the preferred global warming strategy 

we ought to have. 

Now, I am upset about it. I think a lot of people are. I got to be 

a grandfather for the first time about a week and a half ago. And 

If my son lives to the ripe age of 100, 35 percent of the birds in 

the world may be endangered; 52 percent of the amphibians; and 

71 percent of the corals may no longer exist. And for 8 years, the 

Bush administration fiddled while the most dangerous gas in the 

atmosphere increased while the Bush administration fiddled 

around. I would like to think that the administration would leave 

on some note of grace on this last hearing during the Bush administration. And I would like to give you an opportunity to express 

some sorrow that this administration did not act to deal with this 

most dangerous pollutant to the great disadvantage of our 

grandkids. And I want to give you that opportunity to leave on 

some note of grace. 

Mr. HOLMSTEAD. Well, I appreciate your kind invitation, but I 

find your question somewhat disingenuous. 

When I talked about pollution, I was very specific. If you look at 

air quality in New York or your State or anywhere else, air quality, 

as measured by scientists around the country, is significantly improved. Now, no one has ever talked about CO2 as an air quality 

issue because it is not dangerous to breathe unless you happen to— 

unless it is at levels or orders of magnitude higher than we talk 

about today. 

It is clear that climate change is a major issue, but don’t tell me 

that CO2 is the most dangerous gas we face today when there is 

still people who are dying because of fine particle pollution and 


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other things. When it comes to CO2 emissions, this administration 

has done at least as well as every other country in the world and 

at least as well as the Clinton administration. The Clinton administration said they had authority under the Clean Air Act to regulate CO2, they chose not to exercise it very carefully. 

When this administration came in, it has undertaken many 

things to reduce the energy intensity of our economy. And if you 

look at the Europeans, if you look at the Japanese, if you look at 

any other economy since the beginning of this administration, they 

have performed no better than we have. It is a huge, huge challenge that we have, sir, but to somehow suggest that this administration has failed in its efforts; it has spent more time and more 

effort, and although many other countries talk a good story, they 

have not achieved anything either. You know why? It is enormously difficult. I think all of us need to be engaged in that opportunity, but it is going to take decades and billions and trillions of 

dollars to reduce our emissions of CO2. Mr. INSLEE. Thank you, Mr. Holmstead. 

I think you have answered my question, which is you do not intend to leave on a note of grace, of showing you are sorry—and I 

will report to my grandchild when he is at the appropriate age that 

you were proud of your record to watch this international global 

disaster unfold and do nothing about it. That is what I will report 

about your last opportunity. 

I want to ask Ms. Clark and Mr. Kennedy, procedurally, what do 

we need to do to roll back these onerous provisions? How can we 

do that in the quickest, most efficacious way during the Obama administration? What do we need to do day one? How do we hasten 

this process? 

Ms. CLARK. Well, I will speak as a nonlawyer, as a wildlife biologist just to be clear. There are a couple of things. It would be, 

speaking of grace, it would be nice, like they have done on the air 

regulations, for them to decline to finalize the Section 7 regulations. That would be a point of grace. And for an administration 

that has touted their desire for an orderly transition, that would 

be incredibly helpful for the incoming Secretary of the Interior, because it is a huge issue to have to inherit. 

Absent that, and if they do go forward to finalize, know that 

there are a host of environmental groups, conservation groups like 

Defenders of Wildlife that is poised to file suit against implementation of the regulations. And so I imagine we will be involved in 

some dialogue. Also there is certainly the opportunity for the new 

administration to issue executive orders and in essence dictating 

how they expect the incoming departments to address global warming considerations that impact on the environment, including endangered species, while they move with due haste to repropose and 

undo the regulations. 

And just to point it out about these regulations I forgot to mention, but it is of interest in the chairman’s comment earlier on 

about how we can assert that these are midnight and last ditch 

and a bit over the top, the Section 7 regulations, when a bureau 

wants to issue regulations of this magnitude, regulations like Section 7 that affect every discretionary action of any Federal agency—so it has wide, broad impact on the Federal Government. And 


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I know from personal experience that the debate and the handwringing and the wrangling that goes on in the interagency clearance process, not the least of which this regulation ran under the 

radar screen, didn’t show up on the dockets that these regs normally show up on, whether it is in the Department of Interior or 

the Office of Management and Budget. But I heard from at least 

three of the bureaus, the Department of Agriculture, the Environmental Protection Agency and even the Department of Defense 

that, in essence, they were persuaded to, quote, stand down, because what typically happens is these bureaus and individual agencies will provide all this comment that has to be reconciled before 

these regs can go forward. What, in fact, happened is they were in 

essence ordered to—you know, it is kind of like what your mother 

says, if you can’t say something nice, don’t say anything at all. And 

because they couldn’t agree with these regulations, they said nothing. 

So the notion that there was unanimity and everybody agreed 

with these regs in the Federal Government is quite the contrary. 

In fact, you know, Forest Service, Department of Defense, EPA is 

very concerned about now having that responsibility unilaterally as 

well as the accountability unto themselves without the expert 

backup of the wildlife agencies. So this issue has got to be fixed for 

the inherent forward movement. And the only time in this administration they really got away with this in toto has been on the national fire plan for the Bureau of Land Management and the Forest 

Service to implement unilaterally decision-making on fire management and fire planning. Albeit late, the Fish and Wildlife Service 

finally got around to monitoring the impact of decisions made during this self-consultation process and have now determined that 

over—almost 70 percent of the unilateral decisions made by the 

Forest Service and the BLM on this fire management plan implementation have been wrong. And BLM and the Forest Service have 

wildlife experts. Therein lies the problem. So it is a big challenge. 

Mr. INSLEE. Mr. Kennedy, did you want to add something to 

that? 

Mr. KENNEDY. There are three things they should be doing. One 

is, the Obama administration should stay all rules that are still 

pending, and they should prevent publication of those rules in the 

Federal Register, all new rules in the Federal Register. That is 

something that the Bush-Cheney administration did beginning the 

first day of that administration with the Clinton administration’s 

last-minute rules. 

Second, the Obama administration should begin talks with Congress under the Congressional Review Act. The Congressional Review Act as you know is a statute that gives Congress the power 

to review regulations after 100 days and then to—if they disapprove of those regulations or believe they are inconsistent with 

the law, the public interest, Congress has the power to pass a resolution of disapproval which then the President can sign, which effectively vetoes the regulation. That is a real choice that I hope you 

will exercise. 

And then, of course, the Obama administration ought to do 

what—again, take a page from the Bush-Cheney playbook and 

refuse to defend regulations that it doesn’t like in court so that 


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when environmental groups, when citizens groups, when public 

health groups sue the administration over the regulations that we 

can achieve a regulation that protects public health and that protects the environment. 

I just want to make one comment in reaction to some of the 

things that Mr. Holmstead—some of the claims that Mr. 

Holmstead just made. One is that nobody has ever, ever called carbon an air quality problem. In fact, that was a pretense that the 

administration has tried to put over on the American people for the 

past 8 years, but NRDC sued the administration, won the case in 

court, in the Supreme Court, and the Supreme Court has said, indeed, carbon is a pollutant, a regulated pollutant. It was one of the 

games that they played to try to avoid regulation of, as you called, 

the most dangerous pollutant in the world, which is carbon right 

now. 

I also have to say I was somewhat surprised to hear Mr. 

Holmstead talk about his great concern for the worst pollutant, 

which was ozone and particulates, since the Bush administration 

under his leadership did everything in its power to make sure that 

there was no regulation of ozone and particulates. As you know, 

ozone particulates—— 

Mr. HOLMSTEAD. I am just puzzled. That is factually incorrect. 

Mr. KENNEDY. Ozone and particulate emissions were supposed to 

be removed from coal-burning power plants 18 years ago under the 

Clean Air Act. The—— 

Mr. HOLMSTEAD. I’m sorry, but that is just incorrect. As a matter—— 

Mr. KENNEDY. That is correct. 

Mr. HOLMSTEAD. I am sorry, it is not. 

Mr. KENNEDY. The Clinton administration, when this administration came in—because many of the plants did, including in the 

State of Massachusetts, all of the plants installed scrubbing mechanisms to remove the ozone and particulates. Other States didn’t do 

that, states where corporations can easily dominate the State political landscapes. The Clinton administration, there were 400 plants 

that did not remove ozone and particulates. The Clinton administration was prosecuting the worst 52 of those plants criminally and 

civilly. They were investigating 200 other plants. One of the first 

things that the Bush administration did when it came into office 

was to order the Justice Department and EPA to drop all those 

lawsuits. As a result, the top three enforcers at EPA, Bruce 

Buckheit, Sylvia Lawrence and Eric Schaeffer, all resigned their 

jobs in protest. These were not Democrats. These were people that 

served under the Bush administration and the previous Reagan administration. They left their jobs because they were ordered by this 

administration not to do their jobs to reduce ozone and particulates. 

Immediately after that, the administration, under Mr. 

Holmstead’s leadership, abolished illegally as it turns out, because 

we won the lawsuit after 7 years, the New Source Rule, which was 

the heart and soul of the Clean Air Act, the most important provision in that statute. That is the rule that required those companies 

to clean up 18 years ago. So I have three sons. I have asthma. One 

out of every four black children in American cities have asthma. 


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One out of every eight kids born in this country today have asthma. We have a pediatric asthma epidemic. The principal cause of 

asthma attacks is ozone and particulates. A million asthma attacks 

a year, a million lost work days. This is stuff that really hurts our 

country and causes tremendous pain to people. And this administration went and abolished those controls, so that all those plants 

in Massachusetts that installed that expensive equipment are now 

at a profound disadvantage in the marketplace, and I am going to 

be able to watch my children gasping for air on bad air days because somebody gave money to a politician. And if you go to EPA’s 

Web site today, EPA’s Web site, not NRDC, you will see that that 

single decision alone by EPA kills and—and by this White House— 

kills 18,000 Americans every year at minimum and probably 

20,000 a year. 

Mr. HOLMSTEAD. Just a second. I can’t—I don’t know anything 

about mountain-top mining, but I know a lot about the Clean Air 

Act. And maybe we should have a little more polite discussion 

about this. The things that you are saying are fabricated. They are 

not true. 

Mr. INSLEE. Mr. Holmstead, if you would like to write a letter—— 

Mr. HOLMSTEAD. I would be happy to, but I think people ought 

to—— 

Mr. INSLEE. My time has expired. Mr. Holmstead, we will be 

happy to put into the record a letter from you. But my time has 

expired, and thankfully, this administration’s time has expired. 

And as my last comment, I look forward to changing and closing 

this book and opening a new one of an administration that I hope 

and do believe will reverse this sorry record and bring back the law 

and the environmental value of this country. Thank you. 

The CHAIRMAN. The gentleman’s time has expired. 

The Chair will recognize himself again for a round of questions. 

Let me go to you, Ms. Rappaport Clark. Let’s go to the environment, to the Endangered Species Act. Let’s lay out the state of play 

right now of the Endangered Species Act, what the administration 

is planning, and what would be the impact if they were successful, 

and how difficult it would be, then, for the Obama administration 

to reverse what they are right now still presently contemplating. 

Could you first lay out the danger, where are they in the regulatory system and then, what are the consequences if they are successful? 

Ms. CLARK. Certainly, Mr. Chairman. 

First, over the course of this administration, they have had numerous attempts, many caught, thankfully, by you and colleagues 

up here in an oversight capacity, to undermine the Endangered 

Species Act administratively when they couldn’t accomplish it legislatively. This big issue, though, the significant issue underway 

now, though, is the change, the unilateral change to the interagency consultation process, which is the heart of the Endangered 

Species Act. By doing that, what they in essence have allowed are 

agencies to unilaterally decide whether or not their activities have 

effect. There is no check and balance. There is a reason for the different Federal agencies, and there is a reason that they are aligned 

to follow different yet complementary missions. 


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This interagency Section 7 reg cuts out the check and balance of 

the wildlife experts in either the Fish and Wildlife Service or the 

National Fisheries Service, the two agencies set up to protect species and habitat in this country. That is not to say that there aren’t 

wildlife biologists in other agencies. There are, and they are quite 

competent, but they are often challenged by conflicting missions. 

The Forest Service, the BLM, they have multiple-use missions. The 

Fish and Wildlife Service has a wildlife conservation mission. 

So by passing this sweeping change, we will lose the ability to 

monitor the condition of species across the landscape because you 

will have agencies unilaterally kind of checker boarding impacts on 

species themselves and there will be no ability to evaluate a species’ condition across its range. That will affect all 1,400 listed species today and the many more ultimately that will deserve protection now as a result of implementation of this reg if finalized. So 

I expect it will result in more species being put in jeopardy than 

less. It provides an opportunity to cut corners. 

The other issue it does is it allows the agencies to disregard certain effects, and that is how they get at global warming. In their 

zeal to deregulate if you will all of the protections afforded the 

polar bear by finally listing it a number of months ago through this 

4(d) rule, they in essence have excised global warming from consideration. And that is just unprecedented. I am not here to say that 

this Nation’s consideration of global warming and how to deal with 

the threats of global warming should be borne on the back of the 

Endangered Species Act but I think it is ridiculous to take something as scientifically proven as the impacts of global warming on 

species and say disregard it under the Endangered Species Act. We 

didn’t do it with invasive species. We didn’t do it with timber harvesting. We didn’t do it with the registration of pesticides. How can 

we unilaterally overturn the Intergovernmental Panel on Climate 

Changes’ acknowledgement to the impact of global warming on species and say, oh, by the way, ESA, leave it alone? That will occur 

if this regulation is passed. 

The CHAIRMAN. Thank you. My time has expired. 

The gentleman from Missouri, do you have any additional questions. 

Mr. CLEAVER. Yes. Thank you, Mr. Chairman. 

I sat in the House last night and nervously awaited a vote, the 

final vote on a rescue package for the automobile manufacturers. 

And I sat there probably longer than anybody else trying to understand how we could put ideology ahead of the best welfare of the 

country. And I think everybody up here, I really in my heart would 

at least want to believe that everybody here is trying to do the best 

thing. 

I do get nervous when I hear that CO2 is not a pollutant. I mean, 

I listened to a debate on television and I don’t—I am losing hair 

right here, so I don’t have a lot to pull out. And I wanted to pull 

some hair out because I couldn’t believe that, in 2008, people are 

arguing whether CO2 is a pollutant. 

Mr. HOLMSTEAD. I don’t think there is any question about that. 

CO2 is a pollutant. 

Mr. CLEAVER. Are you suggesting it is a nice pollutant? 


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Mr. HOLMSTEAD. No, no. There is a difference between—sir, air 

quality has always meant the air that we breathe and—— 

Mr. CLEAVER. Ambient air? 

Mr. HOLMSTEAD. The air that we breathe and its effect on us. 

Mr. CLEAVER. Ambient air? 

Mr. HOLMSTEAD. Ambient air, yeah, the air that we—I am not 

suggesting that CO2 is not a pollutant or that it is not a problem. 

That was never my point, and I am sorry if I—— 

Mr. CLEAVER. Maybe I misunderstood. What were you saying? 

Mr. HOLMSTEAD. I was making a distinction between all of the 

other pollutants that have historically been regulated under the 

Clean Air Act in order to protect air quality, the air that we 

breathe. CO2, no one is claiming that by breathing CO2 we are 

doing any harm to ourselves. It is a very different kind of an issue. 

But it is, the Supreme Court has said that it is a pollutant under 

the Clean Air Act, and there is a lot of kind of detailed legal issues 

there. But please don’t misunderstand, I think CO2 is an issue we 

have to deal with, yes. 

Mr. CLEAVER. I guess if someone wanted to measure where we 

are in this struggle—I do—I mean, I had to do a funeral of Randy 

Crawford Jr., his father is probably watching this. And he runs out 

on the lawn in his underwear, falls down dead of an asthma attack. 

And it is probably, next to diabetes, it is the most dangerous—it 

has the most dangerous impact on African Americans. It is so pervasive. 

I grew up about 300 yards from what we called at the time ‘‘the 

cesspool’’ which of the city’s treatment plant, and I was about another 200 yards, 500 yards from the landfill, because they historically, as you know, are placed in minority communities. And so I 

try to speak dispassionately in this committee, but in my spirit, I 

am screaming. I mean, I am screaming. I know too many people 

who are in cemeteries because of this. And that is not your fault. 

I just became very concerned over what I thought you had said. 

But then I look at the fact that, in 8 years, the EPA administrator 

has testified before Congress—do you know how many times? 

Mr. HOLMSTEAD. I don’t know. 

Mr. CLEAVER. Two. One of the most significant agencies—— 

Mr. HOLMSTEAD. Sir, that can’t be right because I have sat behind him in numerous hearings. I was at EPA, and I sat behind—— 

Mr. CLEAVER. Mr. Johnson? 

Mr. HOLMSTEAD. Mr. Johnson, I don’t know. But the EPA administrator—— 

Mr. CLEAVER. I am talking about Mr. Johnson. 

Mr. HOLMSTEAD. Mr. Johnson. Okay. Yeah, I know I sat behind 

numerous hearings for EPA administrators. 

The CHAIRMAN. Would the gentlemen yield just briefly? 

Just for the record, the EPA administrator did not appear before 

the house Energy and Commerce Committee, which has the legislative jurisdiction over the EPA for the first 6 years of the Bush administration; that is the committee with jurisdiction over it. So just 

for the record, it was the most successful witness protection program in the history of the United States, Republican Congress, Republican committee, Republican agency, Republican President, the 


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head of the EPA, that is the environmental minister of the United 

States, as the rest of the world’s environmental ministers are looking for leadership is not asked to testify before the committee in 

the United States House of Representatives with jurisdiction over 

that agency. 

So I would say that, you know, when Daniel Patrick Moynihan— 

if the gentleman will continue to yield—when Daniel Patrick Moynihan used to say the way to avoid dealing with an issue is to engage in benign neglect: Don’t do anything positive; don’t do anything negative. However, this was really a policy of designed neglect, you know, an actual policy designed to ensure that these environmental issues would not be dealt with, and it required a Republican Congress in not calling in the EPA administrator for 6 

consecutive years to testify before the House of Representatives. So 

I know that is a fact. 

Mr. Inslee and I sit on the Energy and Commerce Committee. 

And for most of that time, if you put the EPA administrator on a 

panel of two people, the committee would have had a 50 percent 

chance of picking him out of a lineup of two people. So it was a 

very successful program. If you don’t know the name of the EPA 

administrator—people remember Mr. Rucklehouse’s name. People 

remember names of 30 years ago better than they know the name 

of the EPA administrator today. It is just a fact of the matter. 

I apologize. 

Mr. CLEAVER. No. Thank you, Mr. Chairman. The point I was 

trying to make you have already made quite eloquently, which was 

that the statement that this administration—we have done, quote, 

as well as any other country in the world with environmental 

issues. And I think when we start trying to meet the lowest common denominator of success, we are falling like a rock with regard 

to our leadership in the world. And I will just close out by asking 

you—I mean, if you think that with the EPA not appearing before 

congressional committees is a sign that we are really committed to 

cleaning up this environment for unborn generations? 

Mr. HOLMSTEAD. I have certainly had the opportunity on a number of occasions to testify, and I appreciate your thoughtful questions. In my heart of heart, I believe that the best way to determine our commitment to the environment is to look at the state of 

our environment and to ask ourselves, is the air cleaner today than 

was 8 years ago? The answer is yes. I don’t—the other measurements are harder to come by. There is no doubt that CO2 emissions 

have increased over the last decade. There is no doubt about that. 

But air quality, as we measure the air we breathe, is significantly 

cleaner. In CO2, we have a major challenge, a worldwide challenge. 

And as I said, we are doing—no other country, despite their rhetoric, is doing better than we are when it comes to reducing CO2 because it is an enormous challenge. 

Mr. CLEAVER. I agree. 

If Mr. Kennedy was correct when he provided us with opening 

comments about the people who are now in positions of significance 

with regard to our environment who are at least opposed to most 

of the things that we are for and I think the majority of the American public, I mean, is it, like, you know, like putting a werewolf 

in charge of the silver bullet store? I mean, first of all, are all of 


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the people he mentioned—they are strong environmentalists, you 

would argue they are strong environmentalists? 

Mr. HOLMSTEAD. What I can tell you, and he said some things 

about me that were not right. I never represented a coal-fired 

power plant before I—— 

Mr. CLEAVER. Well, let’s eliminate you. 

Mr. HOLMSTEAD. But I think what you have to do is look at people and what they have done, and are there people in the Obama 

administration who have worked for industries who will now have 

these positions? I think the answer is probably yes. But those are 

people who understand the issues, who truly want to do what is 

right for the country. 

And I know that Mr. Kennedy has—does not support some of the 

people or maybe all of the people in the Bush administration. But 

I think you need to judge them by actually what has been accomplished under their leadership. And I think that is the same way 

we should judge the Obama administration. I don’t think my view, 

we don’t look at regulatory controversy or number of hearings. 

What we look at, is the air cleaner? Are our emissions decreasing? 

Is the water cleaner? Is the land better protected? Those are the 

kind of measures that I think we can all agree on. And I think we 

will have a much more productive conversation if collectively we 

have that in mind, because I think that is kind of an ultimate goal 

that we can all agree on. 

Mr. CLEAVER. Thank you, Mr. Chairman. 

The CHAIRMAN. The gentleman’s time has expired. 

The gentleman from Washington State? 

Here is what I would ask then in conclusion, and that would be 

that each one of you give us your 2-minute, your 2-minute summary to us as to what you think we should be thinking about with 

these final 35 or 40 days or so of the Bush administration in terms 

of this midnight of regulatory attack and the perspective you think 

not only this committee but the country should have as this lastminute review of regulations and attempts to remove them from 

the books or modify them are being engaged in by the Bush administration. 

We will begin with you Mr. Holmstead, reverse order of the way 

in which we began the hearing. Two minutes to each one of you. 

Mr. HOLMSTEAD. Thank you, again, Mr. Chairman, for giving me 

the opportunity to be here today. 

I am concerned that we are not doing a good job of having constructive conversations about all of these issues, and I just urge 

this committee to look at the merits of each of these issues, to put 

aside the political rhetoric and say, in light of our shared goals to 

have a cleaner environment, is this the most effective way that we 

can do it? I am not an ESA expert, but I do know that the ESA 

is not the way that Congress intended to deal with climate change, 

and I think it is not the way that can have any meaningful impact 

at all. So let’s talk about climate change and how we can deal with 

it. 

And I think if we keep the conversation over the next 45 days 

and over the next 4 years at that level, we can all have a much 

more constructive conversation about climate change, which I know 

is of great interest to you and other members of the committee, 


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about more traditional clean air issues, about clean water issues, 

about all of these things. My own hope is that some of the partisanship that has even been maybe in evidence here today can be put 

aside and that we can work constructively together on these issues. 

The CHAIRMAN. Thank you, Mr. Holmstead. 

Mr. Walke. 

Mr. WALKE. Chairman Markey and members of the committee, 

first of all, thank you. I am grateful and the country should be 

grateful to you for holding this hearing and shining an important 

light on this problem that all too often goes unnoticed inside the 

beltway and in the broader country. 

You know, I am in agreement with a Supreme Court Justice who 

once said that sunlight is the best disinfectant, and that is starting 

here. 

But let’s test the proposition of the administration’s pride in 

these matters. With these deeply controversial rules that we have 

discussed and others that we have not, let’s invite the administration to share their internal documents and professional staff and 

invite them to discuss what they believe is important, and let’s 

take Mr. Holmstead at his word and discuss the content of these 

matters. Let’s have the staff and have the materials under discussion now be made available to the public and to this committee and 

to the Senate to examine. 

I daresay the administration would not cooperate because, you 

know, let’s be serious here. These are deeply controversial, pro-industry matters that they are trying to push out no matter what 

spin the administration is trying to put on them. 

So I would encourage this committee to look ahead to the transition team and the incoming administration to sit down seriously to 

discuss ways to go back and reverse abuses that are being committed today and will be committed up until noon on January 20th, 

because the American people deserve no less. 

Thank you. 

The CHAIRMAN. Thank you, Mr. Walke. 

Ms. Rappaport Clark. 

Ms. CLARK. Thank you, Mr. Chairman. Thank you, Mr. Chairman and members of the committee. 

You know, given the magnitude of challenges facing Presidentelect Obama and this Congress on the economy and foreign policy, 

I hope that through this oversight and continued diligence, we 

won’t lose sight of the pressing effects of what this administration 

has done, the unprecedented attacks on key rules that govern how 

we steward our public lands, our endangered species, our air and 

water. And we shouldn’t play to the lowest common denominator. 

That is just not acceptable. 

I do think, however, we need to be ever vigilant because when 

President-elect Obama takes office on January 20th, there will not 

be a light switch that just flips and all will be fine. We need to be 

aware and sensitive to how deep the challenges are in these Federal agencies. Beyond just the political appointees packing up and 

going home, there are serious budgetary and administrative processes that have now embedded in these organizations, these agencies, that will need significant and continuing oversight so that we 


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can once again restore our stewardship responsibilities and obligations. 

I am guided by my 9-year-old son, and he deserves what I have 

had over my time. And the fact that our children and our grandchildren will not be able to enjoy this wonderful—these wonderful 

natural resources should put us all to shame, and I look forward 

to working with you to right these wrongs. 

The CHAIRMAN. Thank you, Ms. Rappaport Clark. 

And Mr. Kennedy. 

Mr. KENNEDY. Thank you, Mr. Chairman and members of the 

committee. 

I want to respond to one of the things that Mr. Holmstead said 

because I think it is really important for this committee and for 

Congress to understand at every level, which is that criticizing the 

administration is not partisanship. I have been disciplined over 25 

years as an environmental advocate about being nonpartisan and 

bipartisan in my approach to these issues. I don’t think there is 

any such thing as Republican children or Democratic children. I 

think the worst thing that can happen to the environment is if it 

becomes the province of a single political party. 

But it is hard to talk about the environment in any context honestly today without speaking about this administration and about 

what it has done to our environment over the past 8 years. And 

if we don’t understand the mechanisms by which this happened 

and if we don’t discuss those honestly—when we discuss them, it 

is not an attack on Republicans. It is just we have a responsibility 

to tell the truth, and if we see somebody doing something that is 

wicked, we need to talk about it, whether Republican or Democrat. 

I wrote a book about this administration. I would have written the 

exact same book if they were Democrats. It is a critical book, but 

it is not partisan. My father was absolutely against partisanship 

because it is dishonest ultimately. 

But I want to give you one example of what this administration 

has done. You know, Mr. Holmstead just said air quality has improved. He has a very narrowly and carefully constructed world 

view in which he is able to make these intricate and very narrow 

arguments. But in the real world, we are experiencing something 

very different which is a decline in quality of life for all of the people of our country. About 8 years ago, the EPA announced that in 

19 States it is now unsafe to eat any fresh water fish caught in the 

State because of mercury contamination. The mercury is coming 

from those coal-burning power plants. In 49 States, at least some 

of the fish are unsafe to eat. In fact, the only State where all of 

the fish are safe to eat is Dick Cheney’s home state of Wyoming 

where the Republican-controlled legislature has refused to appropriate the money to test the fish. We know a lot about mercury 

now. According to CDC, the mercury—one out of every six American women now has so much mercury in her womb that her children are at risk for a grim inventory of diseases, autism, blindness, 

mental retardation, heart, liver and kidney disease. I have so much 

mercury in my body just from eating fish, two and a half times 

what EPA has considered safe. I was told by Dr. David Carpenter, 

who is the principal authority on mercury toxicity in this country, 

that a woman with my levels of mercury in her blood would have 


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children with cognitive impairment, with permanent brain neurological injury. Today, according to CDC, there are 640,000 children 

born in this country every year who have been exposed to dangerous levels of mercury in their mother’s womb. 

The Clinton administration recognizing the gravity of this national health epidemic reclassified mercury as a hazardous pollutant under the Clean Air Act. That triggered a requirement that all 

of those plants remove 90 percent of the mercury within 3 and a 

half years. It would have cost them less than 1 percent of plant 

revenues, and we know that it works. When they stop emitting the 

mercury, it disappears within 5 years mostly from the fish and waterways downwind of those plants. But this is an industry that received—that donated $156 million to President Bush and his party 

since the 2000 election cycle, and they got—their reward was leaders like Mr. Holmstead here who came in and eviscerated that rule 

and instead replaced a rule that was written by utility industry 

lobbyists, his own law firm, Latham & Watkins, which ended essentially the regulation, that tight regulation of mercury and allows these utilities to continue to discharge mercury at huge rates 

for endless periods of time. That is the cost of doing this. And this 

is why one of the important things, what Mr. Walke said, is to 

shine light on this situation. It is not partisanship. It is just honesty, and the American public is entitled to that. 

The CHAIRMAN. Mr. Holmstead, I am going to give you an opportunity if you would like to say something. 

Mr. HOLMSTEAD. Yeah. I certainly agree that we need to be honest about all of these issues, and mercury is a much more complicated issue. And I won’t try to address that. 

I just would again thank you for the chance to at least share the 

opportunity to be with others, and I am hoping that Mr. Kennedy 

and I can maybe talk a little more civilly about these issues, and 

we could maybe come to a better understanding of what really has 

and hasn’t happened, because I certainly respect his expertise in 

many areas. But on some of these Clean Air Act issues, I think we 

just need to sit down and talk them through. 

But thank you for giving me the chance to say something. 

The CHAIRMAN. Thank you, Mr. Holmstead, very much. 

We thank each of you for appearing with us here today. There 

are 40 days left to go until noon on January 20th. We are not going 

to turn out the lights in this hearing room. The staff is not going 

away. What we are going to do on a daily basis for the next 40 days 

is monitor everything that the Department of Interior is doing, everything that OMB is doing, everything that the Department of Energy is doing, everything that the EPA is doing. We are going to 

be on their case. They should understand that if they make a decision or they move towards making a decision, they will get a response from this committee. We are going to be there every single 

minute so that the American people understand what is being done 

by the Bush administration in these final days that could have a 

negative impact upon the environment. We have no intention of 

resting. 

If they plan on New Year’s Eve to issue a new regulation thinking everyone will be preoccupied, we will be working. If they intend 

on doing it on Christmas Eve and delivering lumps of coal to the 


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American people in new environmental regulation, we will be working on this committee. They should just understand we are not 

going to take off. It is unfortunate, but it has to be the way in 

which we expect the Bush administration to act because that is the 

way in which they have acted for the last 8 years. 

So we plan on assuming that regulations will be promulgated at 

the point in a day where they think the least amount of media attention will be paid to it. I hope that is not the case. We are being 

told it won’t be. But I think just the attention that we are paying 

to these issues resulted in a decision yesterday to withdraw a couple of these poorly thought-out new regulatory actions by the Bush 

administration. There are many others right now being considered 

covertly inside of this administration as going-away presents to industries. We don’t intend on allowing it to happen without the full 

light of this committee’s attention being drawn to it. We thank 

each of you for your testimony here today. This hearing is adjourned. 

[Whereupon, at 12:00 p.m., the committee was adjourned.] 


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