Dozens of riders, but will any become law?

Source: Phil Taylor, E&E reporter • Posted: Thursday, July 23, 2015

Republican lawmakers have included dozens of environmental policy riders in their 2016 spending bills, setting up a major clash with Democrats and the White House as lawmakers seek to hammer out a deal to fund the government.

While most of the policy riders likely will never become law, some could be bargaining chips for President Obama and Democrats in their pleas for the GOP to raise discretionary spending levels.

Republicans now have control of both chambers, giving them increased leverage to challenge the administration’s efforts to confront climate change, protect waterways and conserve imperiled wildlife.

Green groups are wary.

“These bills are used to play a game of ‘chicken’ with the president, and to make it easier to slip unpopular measures through the Congress,” wrote Scott Slesinger, of the Natural Resources Defense Council, in a blog post last month. “It shouldn’t work, and it won’t. The president has repeatedly stood up to this maneuver.”

NRDC has tallied a list of dozens of policy provisions that have hitched rides on a handful of spending bills for the Interior Department and U.S. EPA as well as the Energy, Commerce and Justice departments.

The most controversial bills funding Interior and EPA have stalled in both chambers and there’s little chance they’ll pass under regular order.

Whether Democrats and Republicans can agree on a budget deal that would replace sequester cuts and clear the way for an omnibus spending package — and an earnest debate on riders — remains to be seen.

Until, and if, that happens, Congress will have to rely on short-term continuing resolutions to keep the government’s lights on. Such spending patches typically maintain the status quo — free of most riders.

“The administration is telling Democratic senators to not allow appropriations bills to get to the Senate floor — with or without different amendments or riders,” said Sen. John Barrasso (R-Wyo.).

But if Democrats are able to extract spending concessions from Republicans, it might cost them some policy blood.

While Obama’s big-ticket environmental initiatives — including curbs on global warming gases and ozone pollution and his ability to designate new national monuments — are likely off the table, the president in the past has shown a willingness to compromise on certain wildlife, land and energy policies.

If Congress does pass an omnibus spending bill — a big if — here are some of the policy riders that might make it into law.

Gray wolves

Both the House and Senate spending bills for Interior would force Fish and Wildlife Service to reissue rules to remove Endangered Species Act protections for wolves in the western Great Lakes and Wyoming.

This rider — which would also exempt the delistings from judicial reviews — would seem a likely candidate to get Obama’s signature, given that the president signed a spending bill in 2011 doing essentially the same thing for wolves in Montana and Idaho.

Wildlife advocates panned the 2011 rider — pushed by Montana’s Democratic Sens. Jon Tester and Max Baucus — as opening a Pandora’s box for future congressional fiddling in ESA decisions.

While the White House has opposed moves in both bills to “undercut” ESA, the fact is Fish and Wildlife scientists believe wolves are recovered in Wyoming and the Great Lakes. Some environmentalists insist the agency privately supports the wolf riders.

FWS delisted wolves in the Great Lakes in 2011 and Wyoming in 2012, but a pair of federal district court rulings invalidated both rules. Those rulings are also getting in the way of FWS plans to delist wolves nationwide.

Rep. Reid Ribble (R-Wis.) in February introduced H.R. 884 to undo the court decisions, a measure that carries four Democratic co-sponsors in the affected states.

Lead ammunition and fishing tackle

Spending bills in both chambers would impose a one-year ban on federal regulations of lead in ammunition or fishing tackle.

The language — which is identical to a rider that was included in Congress’ fiscal 2015 omnibus spending bill last December — would probably make the cut in any spending deal given that it passed last year while Democrats controlled the Senate and was signed by the president. Such language carries support from key pro-hunting and fishing Democrats.

The rider is also a key priority for gun rights and hunting advocacy groups including the National Rifle Association, Safari Club International and the National Shooting Sports Foundation, as well as recreational fisherman — constituencies that carry heavy clout on Capitol Hill.

Certain liberal Democrats and environmental groups have pushed hard against bills to bar EPA from regulating lead ammo, arguing that the neurotoxin can be ingested by scavenger birds and can be ingested by humans who consume game meat.

But the Obama administration has shown no interest in regulating lead in ammo or tackle, and it has not opposed past legislation to block the executive branch from doing so.

Sage grouse

Both the House and Senate bills would temporarily block the Fish and Wildlife Service from writing a proposed rule to protect the greater sage grouse under ESA.

The language would probably be a lock in an omnibus spending bill or a CR, given that a nearly identical provision slipped through in the 2015 omnibus package (signed by Obama, but not without objections from Interior officials).

This year the language might be moot, since Fish and Wildlife by Sept. 30 must decide if grouse deserve ESA protections. All signs suggest the administration is prepared to declare grouse “not warranted,” thanks in large part to sweeping new grouse habitat protections proposed by the Bureau of Land Management and Forest Service covering well over 50 million acres of the West.

But the BLM protections themselves — set to be finalized next month in resource management plans spanning 10 states — could also be blocked or rolled back in a spending bill.

Western Republicans say BLM restrictions would unduly harm industry. They’ve sought to roll back the plans in standalone bills, a rider on the House’s defense authorization package and as an amendment to the House spending bill.

But the administration — backed by a bevy of conservation and sportsmen’s groups – would likely vigorously fight such language given that the BLM plans are the linchpin in its efforts to avoid listing grouse.

Izembek road

Sen. Lisa Murkowski (R-Alaska) has made building a 10-mile, gravel road through the Izembek National Wildlife Refuge in Alaska a top priority in her public lands platform, warning that residents in the remote community of King Cove need more reliable access to medical care in emergencies.

As chairwoman of the Senate panel that funds Interior, Murkowski was able to insert policy language into the Senate bill green-lighting the road. It’s not in the House bill, but such a proposal would presumably clear the lower chamber.

Signing a spending bill authorizing a road through Izembek — a designated wilderness that serves as a major haven for migratory birds, grizzlies and salmon — would be a major concession for the president, given that Interior Secretary Sally Jewell has emphatically rejected the proposal.

The road is also strongly opposed by conservation groups and has drawn criticism from former Interior officials from Republican administrations.

But don’t underestimate Murkowski’s ability to get Alaska priorities across the finish line in spending bills. In late 2011, Murkowski successfully inserted a rider into a spending bill transferring EPA’s air quality oversight for Arctic offshore drilling to Interior, a move designed to streamline the permitting of drilling in her oil-dependent state.

In addition, Obama has not taken ownership of the Izembek issue in the same way he has other Alaska policy issues, including drilling in the Arctic National Wildlife Refuge and the Beaufort and Chukchi seas.

And while conservation groups have strongly opposed the Izembek road — warning its construction would set a bad precedent for wilderness protections nationwide — the issue hasn’t garnered universal attention from green groups in the same way as climate change or other national issues.

BLM oil and gas rules

BLM’s newly finalized hydraulic fracturing rules for drilling on public lands have been a top target of Republicans, the oil and gas industry and drilling-heavy Western states, so it’s no surprise that language was included in both the House and Senate spending bills to roll back the rule.

The frack rule — while tepidly embraced by green groups who would like it to be stronger — has been stayed by a federal district court in Wyoming, and BLM recently asked for an extension to its deadline to file the administrative record. Industry groups that are challenging the rule said it was a sign the agency is in no hurry and may be ill equipped to enforce the new rule.

However, green groups are likely to go to the mat for the frack rule. And signing such a rider would mark a major concession for an Obama administration that has worked on the regulation for years, calling it critical to allay public concerns over the safety of fracking.

The House also voted along party lines earlier this month for an amendment by Rep. Steve Pearce (R-N.M.) to its Interior spending bill to block any moves by BLM to raise royalties on oil and gas drillers.

While the administration has been eying a hike in royalties for a few years — under pressure from conservation groups — BLM appears in no hurry to advance the politically contentious proposal given the pushback from industry. BLM issued an advanced notice of proposed rulemaking in April, but that merely started a public discussion on the merits of higher royalties. It did not commit to a royalty hike.

While Pearce’s amendment may be a long shot for passage, the White House may see bigger policy fish to fry as it seeks to hammer out a spending bill with Republicans.

Water rule

Republicans’ bid to kill the Obama administration’s controversial Waters of the U.S. rule was one of the final issues to be dealt with in negotiations during last December’s spending bill showdown. Now, the issue is poised to come down to the wire again.

With riders targeting Obama’s signature climate rules widely viewed as a no-go with the administration, pressure for a high-profile win from critics of the administration’s environmental agenda could fall on the water rule, which has sparked an intense outcry from farming, construction and mining industry groups.

Senate Majority Leader Mitch McConnell (R-Ky.) mentioned the water rule second, behind the climate rules, in an op-ed earlier this month touting policy riders in the EPA spending bill.

Opponents of the rule enter negotiations with some strong numbers on their side: The House, which has repeatedly voted to kill the rule, most recently approving a measure to do so (H.R. 1732) 261-155 in May.

More than half the Senate is also on record opposing the rule, although efforts to move S. 1140 from Sens. Barrasso and Joe Donnelly (D-Ind.) to kill the rule have stalled at the moment, with neither side certain whether the 60 votes needed for passage are there.

But since the administration has vowed to veto such stand-alone measures to block the rule should they reach the president’s desk, the appropriations process appears to be critics’ likeliest path to success.

Last year, they won language underscoring existing exemptions for normal farming practices and ditch maintenance, and scrapping a widely panned interpretive rule for agriculture. That appears to leave the Obama administration with less to bargain with on the water rule go-round.

Coal mining waste

A prohibition on the administration changing the definition of fill material under the Clean Water Act, which could restrict coal and non-coal mining, is likely to make it into whatever vehicle lawmakers develop to keep the government funded.

Pro-mining lawmakers describe the rider as a preventative measure because the administration has not publicly committed to a new definition for waste. Environmentalists have for decades favored a change.

Yet, the main reason it may find itself in a final spending bill this year is because Democrats and Obama have agreed to it in previous measures. It has become the status quo.

Another proposed rider would block the Office of Surface Mining Reclamation and Enforcement’s stream protection rule. But Interior chief Jewell and many Democrats in Congress have spoken strongly in its defense.

Similarly, previous efforts at including a rider to prevent EPA from developing new financial assurance requirements from hardrock mines — backed by Murkowski — have failed to stick in the past.

Reporters Annie Snider, Manuel Quiñones and Corbin Hiar contributed.