The day after he was elected to a second term, President Bush conducted a press conference in which he highlighted four issues as the cornerstones of his second-term domestic policy agenda: tort reform, education, the tax code, and Social Security. For anybody who paid close attention to Bush's campaign - and especially to the domestic policy debate with John Kerry in October - this list is not surprising. But for the planning and development community in California, the list is notable for what is lacking: environmental policy.
As regular readers of this publication know, federal environmental policy has a vast impact on the California landscape. This is partly because of the fact that the feds own half the state - mostly through the U.S. Forest Service and the Bureau of Land Management - and partly because federal endangered species and wetlands policies come into play in virtually all large development proposals in the state.
But because Bush remained quiet on environmental issues, it is not clear whether he plans to be conciliatory or strident in the second term - or whether he plans to pick his spots on some issues (like Alaska oil drilling) and not push others (like Endangered Species Act reform). There is no question that the affected industries are expecting him to be aggressive. Newhouse New Service recently reported that forest-products companies gave $4 to Bush's campaign for every $1 they gave to the Kerry campaign.
Even so, in the wake of the election, major environmental groups did not seem to know quite what to say about Bush. Taking their cue from the president's own post-election rhetoric, most of them were taking pains not to sound too strident. “We hope the president's conciliatory and unifying words signal a new willingness to meet us halfway on key conservation issues,” said Roger Schlickeisen of Defenders of Wildlife, a fairly strident group. At the same time, however, John Adams of the Natural Resources Defense Council said, “As sweeping as this administration's attack on the environment has been, things are about to get worse.”
One thing is clear: Bush plans to move full-speed ahead on plans to reverse President Clinton's “roadless rule,” a ban on logging and road-building on 58 million acres of U.S. Forest Service land in the West. Reversing this rule may not directly affect urban development in California, but it could open up many national forests to resort development and other recreational use, as well as more mineral extraction.
Coincidentally, the comment period on the roadless rule ended on November 15 - less than two weeks after the election and one day before Californian Ann Veneman announced that she would step down as the secretary of the U.S. Department of Agriculture, which oversees the Forest Service. The government received more than 1.7 million comments on the roadless rule proposal, including critical letters from all Democratic governors in the West.
On the final day of the comment period, Gov. Arnold Schwarzenegger fell into line with his fellow Republicans. In a letter to federal officials, state Resources Secretary Mike Chrisman endorsed the repeal of the roadless rule. Chrisman said that the state welcomed the chance to have greater involvement in national forest management, although the secretary also said the state had no plans to identify specific areas for preservation or development. It's worth noting that California has 4.1 million acres of roadless federal land, including areas with significant gas, oil and timber resources.
Less clear is Bush's course on the Endangered Species Act, which might be one example of an arena where Bush will steer a more centrist course even as he gets pushed from the right by members of Congress who feel newly empowered.
Environmentalists have criticized Bush's implementation of the Endangered Species Act, noting that the president has designated only half of the critical habitat that federal biologists have asked for and has listed far fewer endangered species than any recent predecessor. (Among other things, the administration recently declined to list 1 million acres of California vernal pools as critical habitat.) Even after 10 years of mostly Republican control of Congress, however, the law has not been formally weakened. It remains, as one environmentalists once said, the “pit bull” of environmental laws, with very few loopholes.
However, Bush's coattails have created a more strongly Republican Congress, which is likely to kick up more of a fuss about amending the law, especially in the House. House Resources Committee Chairman Richard Pombo (R-Tracy) has been pushing two specific legislative reforms. The first would alter the scientific method by which species are listed as endangered, and the second would alter the rules on critical habitat designation. Pombo has indicated that he will revive these ideas and hold quick hearings on them. “We will put these back together and really start trying to figure out how we can put together a bipartisan compromise," he told The New York Times.
Republicans have been skittish about taking on the Endangered Species Act in the past, so Pombo's enthusiasm may be a little ahead of the curve. There is little doubt, however, that the Bush Administration will continue to change the way the law is implemented administratively. One issue - disturbing to environmentalists, encouraging to property-rights advocates - is the president's effort to shift responsibility for some species act implementation away from the U.S. Fish and Wildlife Service to other agencies.
Bush has proposed that the responsibility for determining whether fire protection threats pose a danger to species be shifted to the Forest Service, and similar responsibility regarding pesticides be transferred to the Environmental Protection Agency (EPA). Agency Administrator Michael Leavitt has suggested that a significant administrative shift is coming, in large part because one-third of all EPA employees are eligible for retirement in the next four years - giving him the opportunity to reshape the agency's approach.
The Bush approach became clearer on November 30, when the National Marine Fisheries Service proposed reducing a "critical habitat" designation for 19 species of salmon by nearly 90%. The revision was prompted by a lawsuit from the National Association of Homebuilders, which contended the original critical habitat designation (prepared by the Clinton administration) did not consider the economic effects of the designation.
Another less obvious way for Bush to affect environmental policy is through judicial appointments. Most of the discussion about Bush's judges has focused on abortion and the U.S. Supreme Court. But in the case of endangered species and other issues, appointments to two federal appellate courts - the Ninth Circuit in San Francisco and the District of Columbia Circuit in Washington - can be just as important.
The Ninth Circuit is generally regarded as more liberal than the federal judiciary as a whole, yet the Ninth Circuit does include some conservative panels, such as the one that recently issued a sweeping ruling against mobile home rent control (see CP&DR Insight, October 2004; Legal Digest, September 2004). The D.C. Circuit is the federal appellate court that deals with most federal environmental regulations. “It is close to the tipping point in a number of appeals courts,” one environmental lawyer said.
So even though some high-profile fights are in the offing and Rep. Pombo will hold potentially contentious hearings on the Endangered Species Act, the Bush approach in the second term is likely to be more subtle - streamlining processes, shifting the way rules are interpreted, altering the composition of courts, and maybe even changing the predominant orientation of federal bureaucrats. And all those changes are much more likely to have an enduring impact on planning and development in California and elsewhere than the more high-profile battles.
