White House Blocking Whale Protection Rule

Multiple White House offices are working in concert to block a new policy that would expand federal protections for the North Atlantic right whale. The offices, including the office of Vice President Cheney, are questioning the findings of scientists at the National Oceanic and Atmospheric Administration (NOAA), the agency attempting to finalize the rule.

NOAA is proposing speed limits on large ships traveling in Atlantic Ocean whale migration areas during seasons when the right whale is most active. NOAA says collisions with ships are a major cause of death of the right whale — one of the most endangered whale species in the world.

Newly released memos sent from NOAA staff to White House officials indicate the White House is trying to undermine NOAA's conclusion that collisions with ships need to be reduced. The memos were obtained by the Union of Concerned Scientists and released by Rep. Henry Waxman (D-CA) on April 30.

In one memo, NOAA staff responded to objections from the White House Council of Economic Advisors (CEA). CEA reanalyzed statistics in a model intended to determine the relationship between ship speed and the risk to right whales. CEA tweaked certain data points to alter the model's outcome and suggested the relationship is not as strong as NOAA had first concluded. NOAA rejected CEA's claims and called its analysis "biased."

Another memo shows an unidentified White House office questioned NOAA's data on the birth rate of right whales and suggested the species population is increasing more quickly than NOAA had concluded. In response, NOAA officials said they "used the latest, peer-reviewed, scientific data when developing the rule," as required by law.

NOAA also continued to defend its proposal in the memo. NOAA wrote that the option to impose speed limits was chosen because it would "protect right whales while also minimizing economic impact to the shipping industry." NOAA selected the speed limit option from more than 100 policy options considered.

A third memo shows interference by the office of Vice President Cheney. According to the memo, Cheney's staff "contends that we have no evidence (i.e., hard data) that lowering the speeds of 'large ships' will actually make a difference." In response, NOAA staff cited records of collisions in which right whales were killed or seriously injured and again argued in favor of ship speed limits.

Cheney does not often involve his office in specific rulemakings. However, the most frequent targets of his attention have been environmental and homeland security rulemakings, according to an OMB Watch analysis.

The interference in NOAA's effort to protect right whales is being coordinated by the Office of Information and Regulatory Affairs (OIRA). OIRA routinely reviews and comments on federal agency rulemakings and solicits the opinions of other offices or agencies. However, it is rare for White House offices to conduct their own research or to see such extended back-and-forths.

Waxman wrote to OIRA Administrator Susan Dudley asking for an explanation of the White House's role. Waxman wrote, "I question why White House economic advisors are apparently conducting their own research on right whales and why the Vice President's staff is challenging the conclusions of the government's scientific experts."

President Bush installed Dudley by recess appointment in April 2007 after opposition from public interest groups, including OMB Watch, and labor unions. Those groups argued Dudley is ideologically opposed to government regulation and that she would put special interests ahead of public need.

In his letter to Dudley, Waxman notes, "The appearance is that the White House rejects the conclusions of its own scientists and peer-reviewed scientific studies because it does not like the policy implications of the data."

The right whale rule has been stuck at OIRA since February 2007. Under Executive Order 12866, which governs the federal rulemaking process, OIRA is supposed to complete its review in no more than 120 days. OIRA also reviewed the rule before NOAA initially proposed it in June 2006.

Environmental advocates and White House critics believe OIRA should discharge the right whale rule quickly because of imminent danger to the species' survival. According to NOAA, only about 300 of the mammals remain. Two right whales have been struck by ships, and one has likely died, in the time the rule has been under OIRA review, according to Waxman. NOAA officials warn that even one more dead female could set the species on an irrevocable path toward extinction.

Congress is considering a bill that would end the OIRA review. On April 24, the Senate Commerce Committee approved a bill (S. 2657) that would require NOAA to quickly finalize the rule. That bill now awaits consideration by the full Senate. A companion bill has been introduced in the House (H.R. 5536).