Can the California Desert Protection Act of 2010 be Passed this Year?

Following the announcement of Senator Feinstein's proposed California Desert Protection Act of 2010 (CDPA 2010) in December, civic organizations across California have been seeking support from local city councils and members of Congress in order to pave the way for its introduction into Senate and then House debate.  Senator Feinstein indicated that she would like to see the bill (S.2921) at the Senate for a vote before the end of this year.  So how does it look for CDPA 2010?  Even though several town councils, off-road organizations, and conservation groups have joined to support the intent of the legislation--which would set aside 1.6 million acres for conservation and provide permanent off-road vehicle recreation areas--the legislation's passage may be threatened by political realities in Washington that ignore the local grassroots and civic support building behind the legislation in California.

Probably the biggest trend in American politics that could affect CDPA 2010 will be the pressure that both Democratic and Republic legislators are under to prove that they are minimizing negative impacts on the economy and are not over-bearing from the regulatory perspective.  Unfortunately, CDPA 2010 could serve as an easy proxy for a host of legislators that are dealing with a prevailing sentiment among vocal constituents that the Federal Government and Congress are "over-regulating" and constraining economic development.  This sentiment ignores the Problem of the Commons, in which scarce public resources are likely to be decimated or abused unless a higher authority is able to establish sensible levels of use and balance immediate public needs with the mandate that public resources be sustained for future generations.  This need for policy is currently being portrayed as un-American, but anyone that travels to the third world and sees what happens to a country's economy when they destroy their natural resources with short-sighted or non-existent regulation will know that promoting science-based land management is very much in America's interest.

Hurdle Number 1: Senate Committee On Energy and Natural Resources
CDPA 2010 has been referred to the Senate Committee on Energy and Natural Resources (hereafter, the Committee), which must "report" the bill (S.2921) to the floor for consideration by the full body of Congress, assuming the Congress can find time in the legislative calendar to debate and vote on the matter.  The Committee could also fail to consider the legislation, letting it sit and ensuring that it never comes to a vote.  If the Committee stalls for too long or fails to consider it at all, the Committee could effectively end CDPA's chances of a vote this year.  This has to be considered a real outcome for the legislation.  Some of you may remember that the California Desert Protection Act of 1994 (CDPA 1994)--which converted Joshua Tree and Death Valley into National Parks, and created the Mojave National Preserve--was first introduced by Senator Feinstein in January 1993.  It was finally passed on October 31, 1994, almost two years later.

It is perilous to attempt to predict the political storms that could affect the path of CDPA 2010, but we can take the risk anyways and examine the Committee members and key issues that may impact their consideration of CDPA 2010.  Here is a sampling of the Committee members that could impact the passage of CDPA this year.

• Chairman Bingaman: The Committee is chaired by Senator Jeff Bingaman (D-NM).  Sen. Bingaman has sponsored a slew of legislation that promotes responsible energy policy and preservation of wilderness.  While a supporter of renewable energy, his legislation has also sponsored studies that examine the impacts of these projects on natural resources. 

• Ranking Member: Senator Lisa Murkowski (R-AK) is the highest ranking Republican member of the committee.  She has made news recently for favoring aerial wolf hunting in her state, and proposing oil and gas drilling in the Arctic National Wildlife Refuge.  Senator Murkowski could oppose CDPA 2010 on the grounds that the creation of two new national monuments could restrict energy development on that land.  However, if civic organizations and other legislators point out the CDPA 2010 also includes provisions to encourage energy development on more suitable land, and that CDPA 2010 also balances the needs of recreationists, she may not stand in the way.

• Senator Robert Bennett:  Senator Bennett (R-UT) could also pose some opposition to the bill.  Senator Bennett has expressed opposition to the creation of the Grand-Staircase Escalante National Monument in Utah, which is criticized by some for barring future energy development.  The Monument was created by executive decision (White House) instead of being considered and approved by Congress.   He is likely to be skeptical of the legislation's intent, although perhaps supporters of CDPA 2010 could offer the legislation as a role model for Congressional involvement in land management since it balances the concerns of many stakeholders and is the product of public debate, rather than executive decision. 

• Senator Samuel Brownback: The Republican Senator from Kansas voted against the Omnibus Public Land Management Act of 2009 in its Senate form and the House version which ultimately became law.  Although his state has not dealt with the public lands issue as deeply as Murkowski or Bennett, he is likely to be skeptical of the legislation's intent and question the need for wilderness preservation.  

• Senator James Risch: Senator Risch (R-ID) also expressed concern over the executive branch's ability to unilaterally declare public lands as national monuments, although the Senator's letter to Secretary Salazar on the issue suggests he favors "collaborative" approaches to land management.  If Senator Risch were to oppose Senator Feinstein's legislation he would be overriding the collaboration that has already taken place among local stakeholders.

Hurdle Number 2: Consideration by the Senate

Assuming the Committee reports CDPA 2010 to the full Senate for consideration.  As you all probably know, the legislative calendar is largely controlled by the Democratic majority, but agenda contains an ambitious laundry list of legislative goals, to include immigration, jobs, banking reform, the health care debate (which is finally wrapping up), and climate (cap & trade, emissions, etc), among others.  Keep in mind that Congress is likely to adjourn before November this year, given the pressure most rank and file members will be under to get back to their home districts to campaign.   Feinstein will have to deftly maneuver to find space on the calendar so the legislation can be put to a vote.  And then timing will have to be good.  For the same issues addressed above, introducing the legislation to the floor at the wrong time could make the bill a target as a proxy for other issues, giving Senators a soap box from which they can denounce any White House executive action on land management, burgeoning government, or "over regulation" in order to score political points.

Remember that CDPA 1994 received staunch opposition from the GOP on the grounds that the Democratic majority at the time did not appropriately consider other stakeholders, and in general, sought to slow down Democratic legislative priorities.  It may sound eerily familiar, but GOP legislators stalled the legislation with multiple filibusters to slow down debate and prevent a vote.  It has been said that the CDPA 1994 as initially proposed in 1993 did not include provisions that accommodated hunters, and the legislation irritated private landowners, ranchers and off-road enthusiasts.  It appears that CDPA 2010 has front-loaded collaboration, which should hopefully head off criticism.

Hurdle Number 3: Consideration and Vote by the House

The same potential pitfalls that could stymie CDPA 2010 in the Senate could also apply in the House -- legislative agenda, potential for filibusters, and political climate.  However, the Senate would probably pose a more treacherous route than the House, since the Democratic (and thus likely favorable population) majority in the House is more likely to overcome obstacles and pass legislation.  The key to look for in House consideration would be if House members make amendments to the original legislation that could either make it untenable to the pricklier Senate.  Whatever changes the House makes will have to be approved by the Senate or they'll have to work out a compromise.  CDPA 1994 was bogged down in this process, as House member Jerry Lewis sought to prevent its passage.

Hurdle Number 4:  Presidential Signature

This is unlikely to pose a problem.  As reported in the press, the President's Secretary of the Interior Ken Salazar commented favorably on Senator Feinstein's proposed legislation.  So unless Congress ends up tacking on amendments to the legislation that the President find's unreasonable, the White House almost certainly would sign the bill.  The tricky part will be getting it to the President's desk.

Again, trying to predict how specific members will vote, or which issues will affect CDPA 2010 is difficult.  But keep in mind that the issues that do impact the legislation may have little to do with the science involved in preserving the Mojave Desert, or how many stakeholders in California view the legislation as a good thing.  It will be important to highlight the legislation's balanced and collaborative approach to land management to head off legislators attempting to abuse the bill as an opportunity to grand stand on irrelevant political themes and score cheap points with Americans that have little understanding of the pressure being placed on our open space in the Mojave.

Below: Screenshot of part of the lands that would be affected by CDPA 2010.  The legislation would permanently establish key off-road vehicle recreation areas, set aside new wilderness for conservation, and establish two new national monuments.  The Mojave Trails National Monument would encompass much of the land adjacent to the historic route 66, preserving several sites of significance in America's natural heritage.