Many of the biggest threats to the foundation of our economy, resource development, are the result of well-intentioned laws and public land management policies that have drifted far afield of their original intended purpose. In spite of our best advances in management practices to mitigate adverse impacts on the environment, the goal posts keep getting moved down field so we can never seem to satisfy new requirements. Raising the bar based on new innovation, methods and technology is one thing, but often it appears our laws and regulations morph beyond recognition and are being used for purposes for which they were never intended.
A stark example of moving goal posts and regulatory mission creep was articulated by Doug Vincent-Lang, special assistant to the State of Alaska Fish and Game Commissioner, Cora Campbell, at the Endangered Species Act forum at the start of this years’ RDC annual conference. Vincent-Lang reflected on how far the ESA has drifted from the original congressional intent of protecting species in peril. This law is now being used to gain control over landscapes and seascapes, rather than protect species as Congress intended.
We are seeing ESA listings for species with healthy populations based on theoretical future threats that have yet to materialize (polar bear), and listings of population segments rather than species in the true sense of the word (Cook Inlet beluga whale). Perhaps we should be honest and rename the act the “Possibly Endangered at Some Time in the Future Population Segment Act.” While that would make for a cumbersome acronym, it would more accurately describe a law that has listed the polar bear as threatened in spite of robust population numbers.
The National Marine Fisheries Service has proposed listing the Arctic ringed seal as threatened under the ESA, in spite of a population in the millions and rating of “least concern” by the International Union of Conservation of Nature (IUCN). According to the IUCN such designation means the species “does not qualify for Critically Endangered, Endangered, Vulnerable or Near Threatened. Widespread and abundant taxa are included in this category.” The species is doing fine and there are several of these seals residing in our state for every man, woman, and child living here. Regardless, the listing will likely be used as a tool to control landscapes and seascapes and serve as an additional barrier to rational development of fisheries, mineral and oil and gas resources.
The National Petroleum Reserve-Alaska (NPR-A) shows what nine decades of metamorphosis can do to distort the intent of Congress. Established in 1923 under the leadership of President Harding as the Naval Petroleum Reserve Number 4, this 23 million acre prospective oil and gas province, about the size of Indiana, was established by Congress in recognition of high potential for oil and gas development to provide national energy security. Administration of the reserve was transferred to the BLM in 1974 and while oil and gas lease sales have occurred, the most prospective oil and gas acreage has been excluded. Production is still elusive in large part because operator ConocoPhillips has been delayed for years in obtaining permits for critical road and pipeline bridge access to the area. It appears that issue may finally be resolved. Is this what Congress intended back in 1923 when reserving 23 million acres for oil and gas development? Did they imagine a regulatory system that would delay permitting for critical infrastructure necessary to meet the intended purpose of energy security?
The Clean Air Act is another well-intended piece of federal legislation that seems to have drifted from its original purpose. The EPA’s web site recounts that in 1948 the industrial town of Donora, Pennsylvania experienced 20 fatalities and the illness of 6,000 out of its 14,000 population due to an industrial cloud that hung over the community. I’m 100 percent for cleaning our air and protecting public health from such threats. However, I fail to understand how such worthy legislation is also being used to frustrate oil and gas exploration of Alaska’s outer continental shelf. Air permits for Shell’s drill ship and associated ice breaking support vessels have been mired in permit appeals in part because a village 70 miles away suggest the activity may impact the air they breathe. Meanwhile Shell, having paid $2.1 billion to the federal government for its offshore leases in 2008 has yet to spud its first exploration well. Is this what Congress intended, or were they focused on real public heath issues like those in Pennsylvania back in 1948? Like the ESA, the Clean Air Act seems to have drifted far afield from its original intended purpose of protecting public health and is being used as a tool to frustrate our goal of increased domestic energy security.
According to the Government Accountability Office, between October 2010 and March of this year, 1,827 rulemaking proceedings were completed, 37 of which were classified as “significant” or “major,” meaning their expected economic impact surpassed $100 million per year. According to estimates by regulatory agencies, 15 of these new major regulations have combined annual costs of a whopping $5.8 billion. The number of pages in the Federal Register, which chronicles all new and proposed rules and regulations, jumped 18 percent in 2010.
Alaska Congressman Don Young has proposed a regulatory do-over, repealing all regulations passed in the past two decades. While that seems unlikely and could have unintended consequences, one can appreciate the Congressman’s frustration at the growth of burdens on business and the continual shift from congressional intent for many well-intended programs. Alaska could benefit from a programmatic re-evaluation in Washington to reset the goal posts so we can move Alaska forward with a robust resource-based economy as envisioned at Statehood, while still protecting the environment and public health.
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