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Last-ditch regulatory mischief

Obama regulators use little-known bee species to stymie safe pesticide use and reward cronies

January 08, 2017 | 

As time ticks down on the Obama administration, its appointees and minions in federal agencies across America are scrambling to deliver last-minute favors to their favorite constituencies — especially environmentalists.

Every such action clearly poisons any hoped-for “bipartisan” Congress and “smooth, collegial, unifying” transfer of power from one president to the next. But they also help cement President Obama’s ultra-liberal legacy and monkey-wrench the incoming Trump administration’s plans.

A perfect example involves the Interior Department’s Fish and Wildlife Service (FWS), which among other things plays a central role in administering the Endangered Species Act. Most Americans associate this Nixon-era legislation with prominent conservation achievements, such as reversing the near-extinction of iconic national emblems like the bald eagle, alligator and Great Plains bison.

However, in recent years the act has been invoked to protect small, obscure creatures, including insects — or block vitally needed energy and economic development. This often brings consequences that are counter-productive or underscore the disdain that too many regulators and environmentalists have for hard-working rural families.

A case in point is the Delta Smelt, a three-inch bait fish of no commercial importance that was recently declared endangered. Once common in California’s giant Sacramento-San Joaquin estuary, it is now nearly extinct despite years of conservation efforts. During California’s six-year-long drought, FWS and state regulators flushed billions of gallons of water into the sea in wasted efforts to help the fish, while denying the water to farmers and communities and costing untold millions in agricultural damage.

Another example is the September 2016 Fish and Wildlife Service announcement of a “12-month finding” in a Xerces Society for Invertebrate Conservation appeal to designate the rusty patched bumblebee an endangered species. (The public comment period on the proposed rule closed a few days before Thanksgiving — the last step before the FWS can designate the insect as endangered.)

The September announcement was the latest step in a long saga that began in 2013 when Xerces submitted a lengthy petition to the Service for endangered status for the bee. When the FWS didn’t act quickly enough to please the group, Xerces deployed a now typical environmentalist tactic: joined by the Natural Resources Defense Council, it launched sue-and-settle litigation against the agency.

In 2015, the parties conveniently settled the case, with little or no public or affected party notice or input. That allowed the Fish and Wildlife Service to issue a “90-day finding” and investigate the species’ status, determine whether a “threatened” or “endangered” designation was warranted, and issue the 12-month finding.

Just as troublesome, the 12-month finding suddenly and inexplicably shifted the rationale for the bumblebee’s endangered designation. The original Xerces petition and other documents claimed the bee’s decline was due to lost habitat and a Nosema bombi parasitic fungal infection that spread to the rusty patched bumble bee from commercially raised bumble bees imported from Europe.

Then, out of the blue, the Fish and Wildlife Service 12-month finding was revised to suggest that most of the blame should be attributed to pesticides, specifically to neonicotinoids — the advanced technology, reduced-risk pesticides that farmers love and environmentalists have been trying to ban for nearly a decade.

It makes the rusty patch bumblebee sue-settle-designate-and-regulate action look suspiciously like a heading-out-the-door favor to Obama’s hard core green supporters.

That would be par for the course. Last year, the U.S. Geological Survey published what it called the first “national scale reconnaissance” of neonic pesticides in streams. It found neonic residues in over half of the 48 streams sampled, using technology that can easily detect the equivalent of one second in 32 years. That makes it look like the U.S. Geological Survey was trying to help justify an adverse action against neonics.

Almost in tandem, the Fish and Wildlife Service issued a rule banning both neonics and genetically modified crop seeds on Wildlife Service land leased to farmers. That move would eliminate drought-resistant RoundUp-ready crops and increase the use of other pesticides, some of which clearly are harmful to bees and fish.

Moreover, there is little evidence that neonics are harming rusted patch bumblebees — or any other bee species — all of which have clearly been impacted by mites, fungi and other diseases. Nor is there much evidence that government-mandated efforts to “restore” lost habitat for bumblebees or other “endangered” species will actually bring them back.

Indeed, these last-ditch diktats are so expensive and burdensome that 18 state attorneys general have sued to curtail government agency authority to “protect” areas where endangered species currently do not live, as an unconstitutional “taking” of private property without compensation.

Since the rusty patched bumblebee’s range once extended across most of the U.S. corn, wheat and soy-growing belts, efforts to “recover” lost habitat will be extremely expensive and disruptive.

All of which leads to a simple question for Congress and the Trump administration to ask departing Interior Department and Fish and Wildlife Service officials: What’s the rush?

This matter has been pending for three years. It can certainly wait a few more months, while new teams take a fresh look at the facts. Meanwhile, President Trump can use his phone and pen to suspend and defund the rule, and Congress can employ the Congressional Review Act to do likewise.