David J. Hayes is executive director of the State Energy & Environmental Impact Center at the NYU School of Law. He was deputy secretary and chief operating officer of the Interior Department during the Obama and Clinton administrations.
For Interior Secretary David Bernhardt and EPA Administrator Andrew Wheeler, the novel coronavirus outbreak has emerged at an opportune time. After many false starts and embarrassing court defeats, the administration has moved on from its efforts to put off regulatory deadlines or not enforce existing rules. Now, agencies are racing to roll back environmental standards and privatize public lands before the election-year clock runs out. Their strategy is to plow forward regardless of the public health threat, working at a breakneck pace, undistracted by careful scientific deliberation or feedback from the public, which has been largely sidelined by the virus.
The coronavirus emergency exposes this cynical strategy. While using the virus as an excuse to scale back their already-light pollution enforcement activities, the EPA and the Interior Department insist on pushing forward their special interest agenda. They are doing so with the White House’s cooperation, even as courts, businesses, and other federal, state and local agencies push back nonessential deadlines.
The March calendar tells the story. The White House set March 10 as the deadline for public comment on a massive rewrite and weakening put forth in January of National Environmental Policy Act rules. Those rules have guided all federal project approvals for more than 40 years. Pleas for an extension were ignored. Working out of their homes, lawyers in the office of Washington state Attorney General Bob Ferguson helped lead a heroic effort, joined by 18 states and the District of Columbia, to produce and file a highly critical 77-page comment letter. Recall that Washington state was an early U.S. epicenter of the coronavirus outbreak at that time.
On March 18, as social distancing measures were implemented across the country, the EPA released a proposal that would give agency scientists license to discount or ignore well-designed, peer-reviewed human health studies. These studies provide the basis for many of our most important air pollution limits, requirements for toxic protection and cleanup, and standards for drinking water. No public hearing on the proposal has been scheduled (nor could it be amid the covid-19 threat). The EPA set a short, 30-day comment period — with no public hearing — that will preclude meaningful input from many in the scientific community. A particularly notable absence would be feedback from the presidents of the National Academies of Sciences, Medicine, and Engineering, who criticized an earlier, more narrow version of this proposal, and who are almost certainly consumed by our national health emergency.
Meanwhile, the Interior Department refused to extend a March 19 comment deadline on a rule favored by the oil and gas industry that lifts migratory bird protections under a 100-year-old law, insulating companies from liability for reckless practices that they know would needlessly kill birds. Also in March, ignoring the global collapse in oil prices amid the coronavirus outbreak, the Interior Department held five poorly subscribed oil and gas sales in four Western states and the Gulf of Mexico. Concerned citizens had only 10 days to file protests before leases are consummated under draconian procedures that largely shut out public review and input. Already, one federal court has ruled illegal these constraints on public participation in connection with earlier oil and gas sales that were contested.
The anti-environment efforts continue on other fronts. The administration is shelving auto mileage improvements and preparing to terminate obligations for oil and gas companies to control methane emissions — outcomes that are bad for the climate, asthma sufferers and other consumers. Also lurking is the Interior Department’s opening of the iconic Arctic National Wildlife Refuge, a boneheaded move in any era but particularly now, when the agency cannot meet Congress’s prerequisites for opening the refuge — and when privatizing priceless public-owned lands for oil and gas development makes zero moral or economic sense.
Standing alone, the administration’s anti-environment, anti-conservation and anti-science agenda is an outrage. Continuing to aggressively prosecute the agenda when our country is consumed by a major health emergency is inexcusable.
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