05.01.01

Cantwell Criticizes Bush Administration Attempt To Scuttle Roadless Rule

WASHINGTON, D.C. - U.S. Sen. Maria Cantwell (D-Wash.) today called on the Bush Administration to enforce the "roadless forest protection rule," a final federal regulation designed to protect 58 million acres of roadless national forests from further development, while preserving their use for recreation. "Instead of defending and enforcing the final roadless forest protection rule," Cantwell said, "the Administration is seeking to overturn it in favor of a 'roads without rules' policy that would allow unrestricted oil, gas and timber development in the nation's few remaining pristine open spaces, which include key recreational areas, vital watersheds that supply clean drinking water, and irreplaceable fish and wildlife habitat."

"The Bush Administration is trying to solve 21st Century problems with 19th Century thinking - an approach that has no place in this discussion," Cantwell said. "The President's fight to extract a relatively small amount of non-sustainable oil and gas from our few remaining pristine natural areas while simultaneously slashing funding for energy conservation and sustainable forms of energy that could help us address the nation's energy needs this year and for many years to come."

Testifying before a Senate Energy and Natural Resources subcommittee hearing last week, Thomas McGarity, a professor of administrative law at the University of Texas in Austin, said that, "When Chief of Staff Card, at the President's request, asked agencies to postpone the effective date of published final regulations, he was asking them to take an action that was unlawful under the Administrative Procedures Act."

"Federal agencies should obey the law, just as they expect ordinary citizens to obey the law," McGarity said. "The Chief of Staff, in asking the agencies to engage in unlawful conduct, sent a message to ordinary citizens that it is acceptable to circumvent legally binding procedural requirements in pursuit of political ends."

The attack began when the Administration used the Card memo to illegally delay a final federal rule. The Justice Department then offered only a lackluster defense of the rule against plaintiffs' effort to get preliminary injunctions, despite Attorney General Ashcroft's promise to the Senate Judiciary Committee during his confirmation hearing that he would vigorously defend and enforce rules with the force of law. Last week, the Washington Post reported that the White House had instructed the Justice Department to find some way to set aside the rule until it could be eliminated or made less restrictive.

Cantwell said she has reason to believe that the Administration thinks it may have found its answer in Section 705 of the Administrative Procedures Act, a rarely used maneuver that allows an agency to stay one of its own rules. By employing Section 705, the Department of Agriculture, at the direction of the White House, could attempt to permanently stay the existing roadless forest protection rule while the Administration crafts an alternative that would open the nation's few remaining roadless national forests to logging, mining and drilling for oil and gas.

But Cantwell said that in using Section 705, the Administration would have to meet the test of "irreparable injury" to an affected party, the same standard a judge would use in granting a preliminary injunction. Given the depth and breadth of public comment, and that all existing interests are protected by the rule, Cantwell said she is skeptical that the Administration would be able to show that any party would suffer irreparable injury if the rule took effect on May 12.

"The Bush Administration seems determined to replace the 'roadless rule' that would protect public lands and vital watersheds with "roads without rules" that would potentially destroy them for future generations," Cantwell said. "Who is the Bush Administration listening to in this debate? Certainly not the public."

Cantwell said the roadless rule is the result of a massive three-year effort by the Forest Service and Department of Agriculture, which included more than 600 public meetings in local communities nationwide and 1.6 million public comments - there were 60,000 comments from Washington state alone - the most extensive public outreach in the history of the National Environmental Policy Act. Those comments overwhelmingly favored strong protection for roadless areas, and recent polls show that there is strong, widespread support for the rule among the American people.

"I respect the right of the Bush Administration to disagree with the roadless rule, and to explore options to modify it, but they can't simply cross it out because they don't like it," Cantwell said. "If they want to change the rule, they need to undertake a new rulemaking process, as the law requires. Meanwhile, this rule is final and has the force of law, and it should govern our actions in roadless areas unless a new rule, which has undergone the same level of intense public scrutiny, is established."