The National Oceanic and Atmospheric Administration may be making long-overdue progress on a rule to protect the critically endangered North Atlantic right whale. A draft of the final rule has been stuck at the Office of Information and Regulatory Affairs — the White House office that must approve major agency actions — since February 2007.

However, the proposal NOAA is now floating is weaker than the proposed rule first unveiled in June 2006. NOAA now says it wants to enforce the would-be regulation in waters 20 nautical miles off the east coast. The original proposal called for a 30 nautical mile protection zone. Ships traveling in these waters would have to slow down in order to reduce the risk of striking a whale. Collisions with ships are a significant cause of right whale deaths.

In surprising yet unfortunate candor, NOAA officials acknowledged they are weakening the proposal at the shipping industry's behest. An agency spokesman told The Washington Post: "Time is money in shipping. There was a concern about the increased cost to carriers … We accommodated that by reducing the speed zones."

But the World Shipping Council, the trade group that has been lobbying NOAA and the White House, is still unhappy. Their biggest beef with the proposal is not the area in which NOAA will enforce the speed limit, it's the speed limit itself. The Council says, "We continue to see no scientific or statistical support on the record of the rulemaking to show that a 10-knot speed limit for large ships around East Coast ports will help protect right whales," according to the Post.

That argument is totally bogus. NOAA marine science experts have examined the latest science and conducted statistical analyses that show fast-moving ships increase the chances of right whale deaths.

The Council's statement attacking the science behind the rulemaking is eerily similar to the arguments being made by political forces inside the White House. Several White House offices, including the office of Vice President Dick Cheney, have been questioning NOAA's scientific findings and have gone so far as to meddle with NOAA data sets and rerun analyses.

NOAA yesterday revealed its decision to reduce the protection area to 20 nautical miles when it released a draft environmental impact statement that will accompany the final rule. The draft regulation is still stuck at the White House, but the release of the impact statement and the policy change signals that NOAA may be moving forward with the rulemaking.

Of course, the White House can continue to hold up this rule for as long as it wishes. Political forces including those in Cheney's office may pressure NOAA experts to abandon the speed limit, or they may be content to let the draft rule gather dust while the shipping industry continues to move ships through the Atlantic unfettered by new requirements.

It's a bad week to be a forest-dweller. Yesterday, Reg•Watch blogged about the Bush administration's proposed changes to the Endangered Species Act that would make it easier for big development projects to move forward without due consideration to vulnerable species.

Today, headlines bear bad news for the threatened northern spotted owl. The owl was listed as threatened under ESA years ago. Now, the Bush administration's Fish and Wildlife Service — an agency within the Interior Department which released the controversial proposal covered yesterday — wants to reduce protections for the owl. The Associated Press reports:

The U.S. Fish and Wildlife Service said Tuesday that the federal forest land designated as critical habitat for the owl in Washington, Oregon and Northern California would be cut by 23%, a reduction of 1.6 million acres. Critical habitat is a requirement of the Endangered Species Act and offers increased protections against logging.

Endangered and threatened species need special protections for their habitats in order to recover and thrive. Even though the northern spotted owl has enjoyed a critical habitat area since the 1990s, its numbers are struggling to climb. "Research shows that spotted owl numbers are dropping by 4% annually as a result of logging, wildfires and an invasion of its habitat by the barred owl, a more aggressive East Coast cousin," according to AP.

It's as though the Bush administration is employing hard-nosed management techniques to spur the owl toward recovery. As a species, the owl is underperforming (down four percent annually, not even accounting for inflation), so the administration will send it a message by cutting benefits. Next it will be the parking space, then the key to the executive wash room. Fear can be strong motivation.

Of course, the northern spotted owl is unlikely to turn things around in a smaller protected habitat. According to AP, "Tom Partin, president of the American Forest Resources Council in Portland, said the recovery plan and critical habitat would make it more difficult to thin overgrown forests to reduce the risks to wildlife and to promote the old-growth characteristics the owls favor."

The Bush administration is proposing major changes to the Endangered Species Act that would sideline government experts and allow development projects to proceed unchecked, all at the expense of endangered plants, animals, and other organisms. The Washington Post reports:

The new rules, which will be subject to a 30-day comment period, would use administrative powers to make broad changes in the law that Congress has resisted for years. Under current law, agencies must subject any plans that potentially affect endangered animals and plants to an independent review by the Fish and Wildlife Service or the National Marine Fisheries Service. Under the proposed new rules, dam and highway construction and other federal projects could proceed without delay if the agency in charge decides they would not harm vulnerable species.

The proposal would give extraordinary control of biological health decisions to officials whose primary responsibilities include infrastructure creation, minerals extraction, or logging.

For example, take the Minerals Management Service whose mission is to "manage the ocean energy and mineral resources on the Outer Continental Shelf and Federal and Indian mineral revenues to enhance public and trust benefits, promote responsible use, and realize fair value." If an official is considering a project that would yield huge energy benefits and please MMS higher-ups but would also decimate one or more endangered species and violate the law, what's a bureaucrat to do? Talk about a damned if you do, damned if you don't situation.

The proposal fits in with the Bush administration's record, or lack thereof, on enforcing the Endangered Species Act. A March investigation by the Post found that Bush had listed only 59 species under the act. Bush's father, President George H.W. Bush listed 231 species in only four years as president. President Bill Clinton listed 521 species in eight years.

If finalized before Bush leaves office in January, the rule would also violate a new White House policy intended to slow the usual proliferation of rules that occurs at the end of an administration, often called midnight regulations. On May 9, White House Chief of Staff Josh Bolten issued a memo telling regulatory agencies that "regulations to be finalized in this Administration should be proposed no later than June 1, 2008."

The proposed rule wasn't announced until yesterday, and has yet to be officially published in the Federal Register. Of course, the Bolten memo isn't binding, nor does it carry any legal consequence.

The Bush administration is applying the memo selectively, using it to delay policies that might expand protections for public health, workers, or the environment and ignoring it when it finds a new opportunity to cement an anti-regulatory legacy. The proposed changes to the Endangered Species Act — which could lead to environmentally damaging, scientifically uniformed decisions in a future administration — is a perfect example.

(Another rule that would change the way the Department of Labor studies the toxic substances workers are exposed to is equally sneaky. A Health and Human Services rule that may make it harder for women to receive birth control provides yet another example.)

The proposed changes to the Endangered Species Act will be open to public comment once published in the Federal Register. But the 30-day comment period indicates the administration is trying to hustle this rule through before it leaves office. (60 days is the norm for a comment period on a proposed rule.) Stay tuned to Reg•Watch for updates.

Last week, a group of EPA staffers wrote to administrator Stephen Johnson chiding him for the agency's recent decision to delay federal action on greenhouse gas emissions and the damaging climatic effects they cause. In July, EPA issued an Advanced Notice of Proposed Rulemaking (a relatively minor step in the rulemaking process) that solicits public comment on various regulatory options for curbing greenhouse gas emissions.

Strangely, the notice was accompanied by a raft of statements from senior officials across the Bush administration which ridicule the proposal and undermine it ultimate intent — to slow the effects of global climate change. Susan Dudley, head of the White House's regulatory clearinghouse, the Office of Information and Regulatory Affairs, said the policy "cannot be considered Administration policy or representative of the views of the Administration."

In their July 30 letter, the EPA staffers blasted Johnson for including the views of political officials (including the secretaries of Agriculture, Commerce, and Energy) while basically ignoring the hard work of EPA experts: "The way in which you subverted the work of EPA staff in your preamble statement on the merits of the supporting rationale for the ANPRM was as unprecedented as it was stunning to your staff and damaging to EPA's reputation for sound science and policy."

On one important point, the letter corners Johnson as a hypocrite. Johnson chose to include the views of officials in other agencies in the name of transparency. But when it comes to decision making on environmental policy, Johnson has been downright opaque over the past few months:

The decision to publish the critiques of other agencies in the name of "transparency" in decision-making is both disingenuous and counterproductive. A far more direct contribution would be made to the credibility and transparency of EPA decision-making if you cooperated with congressional requests for documents and hearings.

Johnson's refusal to cooperate with Congress isn't limited to the greenhouse gas rulemaking. Congressional committees have repeatedly requested information from Johnson on EPA's controversial revision to an air quality standard for smog and on his decision to refuse to let the state of California write its own rules to deal with climate change.

On all of these issues, internal documents and anecdotal evidence show that the White House exerted some level of pressure on Johnson in order to sway his opinion. And when the Bush White House weighs in on environmental policy, it unfailingly does so on behalf of polluters, not the public.

But when Congress subpoenas Johnson, Dudley, and others, they claim executive privilege. While they argue that these communications must be kept secret in order to ensure good government, EPA staffers say otherwise:

The professional staff of EPA has nothing to hide. In fact, contrary to your assertions of executive privilege, the free flow of policy recommendations would be aided by opening up all (not just selected) communications to public scrutiny.

Toward the end of the letter, the staffers say: "You were once one of us. We were proud when you were nominated as the first of us to occupy the Administrator's Office, and we expected great things. Our disappointment is profound."