January 15, 2009
• Posted in

SALEM – Oregon Governor Ted Kulongoski and Attorney General John Kroger today announced three separate legal challenges to federal executive actions that threaten the environment and a woman’s right to choose.

The state will appeal a decision by the Federal Energy Regulatory Commission authorizing the Bradwood Landing LNG facility on the Columbia River. FERC’s conditional license allows construction to begin without regard to the harmful impact on Oregon’s water quality and coastal resources. Oregon will argue that federal law requires consideration of those impacts.

Oregon also plans to go to court to block two last minute Bush Administration regulations that would undermine crucial provisions of the Endangered Species Act and basic reproductive rights for Oregonians. These controversial policies were adopted in the final weeks of the Bush Administration in an attempt to avoid Congressional input and public scrutiny.

“In its final hour, the Bush Administration is attempting to roll back protections in two important areas that Oregonians care deeply about,” Governor Ted Kulongoski said. “Ideology should not trump good public policy and I will not let these two changes take effect and hinder our progress to protect our environment, fight climate change or infringe on a woman’s right to reproductive health care.”

“There is nothing more important than the rule of law,” added Attorney General Kroger. “These backdoor Bush Administration rules violate federal law and harms Oregonians. The Department of Justice will aggressively protect our state in court, especially when our environment and our basic civil rights are threatened.”

Endangered Species Act Regulations (ESA)

For years, efforts to rollback protections for endangered species protections have failed in Congress for lack of support. So in order to bypass Congress, the Bush Administration aimed to make substantial changes to the ESA through rule making on December 16, 2008, the last possible minute, allowing for little Congressional input and only a short window for public participation.

The Bush regulations significantly amend the manner in which the ESA protects endangered species.

One amendment creates a “global processes” exception. This exception would mean that actions that lead to climate change and global warming would no longer be regulated by the ESA. In other words, if global warming was melting the polar ice caps, which in turn was ruining the polar bear habitat and threatening the existence of polar bears, ESA would no longer apply.

The ESA itself will not allow for such exceptions, and the case Oregon intends to bring contends the Bush Administration cannot create exemptions not identified in statute.

Another significant amendment would undermine the “cautionary principle,” which is derived from the ESA’s requirement to “insure” that actions do not jeopardize protected species. That principle requires that the federal government err on the side of protecting endangered species when human actions affect protected species. The new amendments reverse that principle, requiring that agencies ignore effects on species until they are proven to be harmful. Oregon asserts that the new rule is illegal.

Oregon and several other states on Friday will join a lawsuit filed by California challenging the new regulation.

Reproductive Rights

A new regulation adopted by the Bush Administration’s Department of Health and Human Services would allow doctors and hospitals to deny reproductive health services to women. The new rule would make it impossible for Oregon to enforce its emergency contraception laws that assist victims of sexual assault.

This rule is so last minute that it is scheduled to go into effect on the day that President-Elect Barack Obama is due to take the oath of office.

Under Oregon law, a hospital must provide a victim of sexual assault information on emergency conception and if requested, provide emergency contraception to the victim. Under the new Bush Administration rule, a hospital could refuse to comply with the state law and if the state tried to enforce it, DHS could penalize the state by withholding all federal funds.

Oregon and several other states on Thursday joined a lawsuit filed by Connecticut seeking to overturn the rules.


Tony Green, (503) 378-6002 tony.green@doj.state.or.us |

Anna Richter-Taylor, Governor’s Office, 503-378-6169, anna.r.taylor@state.or.us |