Sec. 1007. Environment and public health restoration

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Congress finds that— humans share an environment with a wide variety of habitats and ecosystems that nurture and sustain a diversity of species; the abundance of natural resources in the environment forms the basis for the economy and has greatly contributed to human development throughout history; the accelerated pace of human development over the last several hundred years has significantly impacted— the natural environment and its resources; the health and diversity of plant and animal life; the availability of critical habitats; the quality of the air and water; and the global climate; the intervention of the Federal Government is necessary to minimize and mitigate human impact on the environment— for the benefit of public health; to maintain air quality and water quality; to sustain the diversity of plants and animals; to combat global climate change; and to protect the environment; laws and regulations in the United States have been enacted and promulgated to minimize and mitigate human impact on the environment for the benefit of public health, to maintain air quality and water quality, to sustain wildlife, and to protect the environment, including— chapter 3203 of title 54, United States Code (commonly known as the Antiquities Act of 1906 ), which was initiated by President Theodore Roosevelt to create the National Park System; the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.); the Clean Air Act ( 42 U.S.C. 7401 et seq.); the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.); the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq.); the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq.); and the National Forest Management Act of 1976 ( Public Law 94–588 ; 90 Stat. 2949) and the amendments made by that Act; and attempts to repeal or weaken key environmental safeguards pose dangers to the public health, air quality, water quality, wildlife, and the environment.

Congress finds that, since 2001, the following changes and proposed changes to existing law or regulations have negatively impacted or will negatively impact the environment and public health: On May 9, 2002, the Environmental Protection Agency and the Corps of Engineers issued a final rule, entitled Final Revisions to the Clean Water Act Regulatory Definitions of (67 Fed. Reg. 31129), that reconciled regulations implementing section 404 of the Federal Water Pollution Control Act ( Fill Material and Discharge of Fill Material 33 U.S.C. 1344 ) by redefining the term fill material and amending the definition of the term discharge of fill material , reversing a 25-year-old regulation.

The rule described in subclause (I)— fails to restrict the dumping of hardrock mining waste, construction debris, and other industrial wastes into rivers, streams, lakes, and wetlands; and allows destructive mountaintop removal coal mining companies to dump waste into streams and lakes, polluting the surrounding natural habitat and poisoning plants and animals that depend on those water sources. On February 12, 2003, the Environmental Protection Agency published the rule entitled National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations (CAFOs) (68 Fed. Reg. 7176), new livestock waste regulations that aimed to control factory farm pollution but which would severely undermine then-existing protections under the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.).

The regulation described in subclause

(I)allows large-scale animal factories to foul waters in the United States with animal waste, allows livestock owners to draft their own pollution-management plans and avoid ground water monitoring, legalizes the discharge of contaminated runoff water rich in nitrogen, phosphorus, bacteria, and metals, and ensures that large factory farms are not held liable for the environmental damage they cause. In a 2005 Federal court decision, Waterkeeper Alliance, et al. v. Environmental Protection Agency, 399 F.3d 486 (2nd Cir. 2005), major parts of the rule were upheld, others vacated, and still others remanded back to the Environmental Protection Agency. On November 20, 2008, the Environmental Protection Agency published a revised final rule, entitled Revised National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations Guidelines for Concentrated Animal Feeding Operations in Response to the Waterkeeper Decision (73 Fed. Reg. 70418), that undermines environmental protection provisions by removing mandatory permitting requirements and allowing large animal farms to self-certify the absence of pollutant discharge activity. On March 19, 2003, the Environmental Protection Agency published a new rule regarding the total maximum daily load program under section 303(d) of the Federal Water Pollution Control Act ( 33 U.S.C. 1313(d) ), entitled Withdrawal of Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulation (68 Fed. Reg. 13608), that regulates the maximum amount of a particular pollutant that can be present in a body of water and still meet water quality standards. The new rule described in subclause

(I)withdrew the then-existing regulation issued on July 13, 2000, and entitled Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulation (65 Fed. Reg. 43586) and halted momentum in cleaning up polluted waterways throughout the United States. By abandoning the then-existing rule, the Environmental Protection Agency is undermining the effectiveness of cleanup plans and is allowing States to avoid cleaning polluted waters entirely by dropping them from their cleanup lists. Waterways play a crucial role in the lives of the people of the United States and are critical to the livelihood of fish and wildlife. The result of dropping the rule described in subclause

(II)is that the restoration of polluted rivers, shorelines, and lakes will be delayed, harming more fish and wildlife and worsening the quality of drinking water. On December 2, 2008, the Environmental Protection Agency and the Corps of Engineers jointly issued a guidance document, entitled Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States . The guidance described in subclause

(I)dictates enforcement actions under the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.) and calls for a complicated case-by-case analysis to determine jurisdiction for waterways that do not flow all year. Enforcement actions described in subclause

(II)endanger small streams and wetlands that serve as important habitats for aquatic life, which play a fundamental role in safeguarding sources of clean drinking water and mitigate the risks and effects of floods and droughts. The definition provided in the guidance described in subclause

(I)for waters of the United States is applicable to the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.) as a whole, potentially affecting programs that control industrial pollution and sewage levels, prevent oil spills, and set water quality standards for all waters in the United States protected under that Act. On December 3, 2003, the President signed into law the Healthy Forests Restoration Act of 2003 ( 16 U.S.C. 6501 et seq.) (referred to in this clause as the law ). Although the law attempts to reduce the risk of catastrophic forest fires, the law provides a boon to timber companies by accelerating the aggressive thinning of backcountry forests that are located far from at-risk communities. The law allows for increased logging of large, fire-resistant trees that are not in close proximity to homes and communities. The law undermines critical protections for endangered species by exempting Federal land management agencies from consulting with the United States Fish and Wildlife Service before approving any action that could harm endangered plants or wildlife. The law limits public participation by reducing the number of environmental reviews for projects carried out under the law. On April 21, 2008, the Secretary of Agriculture issued a final rule entitled National Forest System Land Management Planning (73 Fed. Reg. 21486 (April 21, 2008)) (referred to in this clause as the revised rule ). The revised rule is a revision of a similar final rule entitled National Forest System Land Management Planning (70 Fed Reg. 1022 (January 5, 2005)), which the United States District Court for the Northern District of California remanded to the Secretary of Agriculture in the case styled Citizens for Better Forestry v. United States Department of Agriculture (481 F. Supp. 2d 1059 (N.D. Cal. 2007)) for violating— the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.); the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq.); and subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the Administrative Procedure Act ). The revised rule eliminates strict forest planning standards established in 1982. The revised rule opens millions of acres of public land to damaging and invasive logging, mining, and drilling operations. The revised rule would reverse more than 20 years of protections for wildlife and national forests by— removing the overall goal of ensuring ecological sustainability in managing the National Forest System; weakening the effect of the National Forest Management Act of 1976 ( Public Law 94–588 ; 90 Stat. 2949) and the amendments made by that Act; and effectively ending the review of forest management plans under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.). On September 20, 2006, the United States District Court for the Northern District of California vacated the final rule entitled Special Areas; State Petitions for Inventoried Roadless Area Management (70 Fed. Reg. 25654 (May 13, 2005)) (referred to in this clause as the 2005 rule ), which gave each Governor of a State 18 months to petition the Federal Government— to restore the inventoried roadless area rules applicable to the State of the Governor before the effective date of the final rule entitled Special Areas; Roadless Area Conservation (66 Fed. Reg. 3244 (January 12, 2001)) (referred to in this clause as the 2001 rule ); or to submit a new management and development plan for National Forest System inventoried roadless areas within the State. Despite the enjoinment of the 2005 rule and the subsequent restoration of the 2001 rule, the Forest Service has continued to allow States to petition for a special rule under the authority of section 553(e) of title 5, United States Code, and has issued a final rule entitled Special Areas; Roadless Area Conservation; Applicability to the National Forests in Idaho (73 Fed. Reg. 61456 (October 16, 2008)). As a result, 58,500,000 acres of wild National Forest System land are still vulnerable to logging, road building, and other developments that may fragment natural habitats and negatively impact fish and wildlife. On November 28, 2008, the Bureau of Land Management announced the record of decision entitled Record of Decision for Oil Shale and Tar Sands Resources to Address Land Use Allocations in Colorado, Utah, and Wyoming (73 Fed. Reg. 72519 (November 28, 2008)), which amended 12 resource management plans in the States of Colorado, Utah, and Wyoming, opening 2,000,000 acres of public land to commercial tar sands and oil shale exploration and development. On November 18, 2008, the Bureau of Land Management issued the final rule entitled Oil Shale Management—General (73 Fed. Reg. 69414 (November 18, 2008)), setting the policies and procedures for a commercial leasing program for the management of federally owned oil shale in the States referred to in subclause (I). Previously barred by a congressional moratorium on the commercial leasing regulations for oil shale until September 30, 2008, the development of oil shale on public land poses a serious threat to land conservation, endangered and threatened species, and critical habitat. Domestic shale oil production authorized by the final rules described in subclauses

(I)and (II)— is water- and energy-intensive; and will intensify existing water scarcity in the arid Western United States and potentially degrade air and water quality for surrounding populations. On December 16, 2008, the United States Fish and Wildlife Service and the National Marine Fisheries Service jointly issued a new rule, entitled Interagency Cooperation Under the Endangered Species Act (73 Fed. Reg. 76272) amending regulations governing interagency cooperation under section 7 of the Endangered Species Act of 1973 ( 16 U.S.C. 1536 ). The rule described in clause

(i)undermines the intention of the Endangered Species Act ( 16 U.S.C. 1531 et seq.) to protect species and the ecosystems on which those species depend by allowing Federal agencies to carry out, permit, or fund an action without proper environmental review and expert third-party consultation from Federal wildlife experts. Under the rule described in clause (i), Federal agencies can unilaterally circumvent the formal review process, eliminating longstanding and scientifically grounded safeguards that serve to protect the biodiversity of ecosystems in the United States and avert harm to thousands of endangered and threatened species. It is the policy of the Federal Government to work in conjunction with States, territories, Tribal governments, international organizations, and foreign governments as a steward of the environment for the benefit of public health, to maintain air quality and water quality, to sustain the diversity of plant and animal species, to combat global climate change, and to protect the environment for future generations. Not later than 30 days after the date of enactment of this Act, the President shall enter into an arrangement under which the National Academy of Sciences shall conduct a study to determine the impact on public health, air quality, water quality, wildlife, and the environment of the following regulations, laws, and proposed laws: The final rule of the Environmental Protection Agency and the Corps of Engineers entitled Final Revisions to the Clean Water Act Regulatory Definitions of (67 Fed. Reg. 31129 (May 9, 2002)). Fill Material and Discharge of Fill Material The final rule of the Environmental Protection Agency entitled Revised National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations Guidelines for Concentrated Animal Feeding Operations in Response to the Waterkeeper Decision (73 Fed. Reg. 70418 (November 20, 2008)). The final rule entitled Withdrawal of Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulation (68 Fed. Reg. 13608 (March 19, 2003)). The guidance document of the Environmental Protection Agency and the Corps of Engineers entitled Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States (December 2, 2008). The Healthy Forests Restoration Act of 2003 ( 16 U.S.C. 6501 et seq.). The application of section 553(e) of title 5, United States Code, such that a State may petition for a special rule for the National Forest System inventoried roadless areas within the State. The final rule entitled National Forest System Land Management Planning (73 Fed. Reg. 21486 (April 21, 2008)). The final rule entitled Oil Shale Management—General (73 Fed. Reg. 69414 (November 18, 2008)). The record of decision entitled Record of Decision for Oil Shale and Tar Sands Resources To Address Land Use Allocations in Colorado, Utah, and Wyoming (73 Fed. Reg. 72519 (November 28, 2008)). The final rule of the United States Fish and Wildlife Service and the National Marine Fisheries Service entitled Interagency Cooperation Under the Endangered Species Act (73 Fed. Reg. 76272 (December 16, 2008)). In conducting the study under paragraph (1), the National Academy of Sciences may use and compare existing scientific studies regarding the regulations, laws, and proposed laws described in paragraph (1). Not later than 270 days after the date on which the President enters into the arrangement under paragraph (1), the National Academy of Sciences shall make publicly available and shall submit to the Congress and to the head of each department and agency of the Federal Government that issued, implements, or would implement a regulation, law, or proposed law described in paragraph (1), a report that includes— a description of the impact of each regulation, law, or proposed law described in paragraph

(1)on public health, air quality, water quality, wildlife, and the environment, compared to the impact of preexisting regulations, or laws in effect, as applicable, including— any negative impacts to air quality or water quality; any negative impacts to wildlife; any delays in hazardous waste cleanup that are projected to be hazardous to public health; and any other negative impact on public health or the environment; and any recommendations that the National Academy of Sciences considers appropriate to maintain, restore, or improve in whole or in part protections for public health, air quality, water quality, wildlife, and the environment for each of the regulations, laws, and proposed laws described in paragraph (1), which may include recommendations for the adoption of any regulation or law in place or proposed prior to January 1, 2001. Not later than 180 days after the date on which the report is submitted pursuant to subsection (c)(3), the head of each department or agency that has issued or implemented a regulation or law described in subsection (c)(1) shall submit to Congress a plan describing the steps the department or agency will take, or has taken, to restore or improve protections for public health and the environment in whole or in part that were in existence prior to the issuance of the applicable regulation or law.

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