Proposed rule changes will speed forest damage: “There are five national forests in New Mexico, totaling over 9 million acres. The headwaters of the Pecos River, Gila River and Rio Grande originate in these forests and provide drinking water to our communities and water for farmers who grow our food. They also provide vital habitat for wildlife and plants. With nearly 70% of the state’s population living in the 10 counties along the Rio Grande alone, how our forests are managed is critical to water supplies and the local economy. Despite the great importance of these places to New Mexicans, the U.S. Forest Service is proposing to weaken a bedrock law called the National Environmental Policy Act (NEPA), which protects forests and allows our communities to have a say in how they are managed. In June, a new rule was proposed that would cut both public participation and the role of science in the land management decisions for the 193 million acres of national forest lands across the United States. Several new “categorical exclusions” would allow the Forest Service to conduct planning behind closed doors, and eliminate any science-based review of impacts to water, wildlife and recreation. The changes would also create loopholes to increase the speed and size of resource extraction, including logging and mining – while eliminating public awareness and input on up to 93% of proposed projects. Meaning you, or local leaders, may not even know about the seriousness of a project in your area before it is too late to provide input.”

[Albuquerque Journal, 8/5/19] http://bit.ly/2Kek7ZI

Federal judge rebukes FERC's 'Kafkaesque regime': “A federal appellate court today upheld another Federal Energy Regulatory Commission approval for a natural gas project — but not without a sharply worded judicial critique. Judge Patricia Millett said she was bound by U.S. Court of Appeals for the District of Columbia Circuit precedent to join her colleagues in rejecting a challenge by environmentalists and landowners to the Atlantic Sunrise pipeline. In the same breath, she urged further review of a "Kafkaesque regime" by which FERC can trap landowners in "administrative limbo" while allowing pipeline developers to move full speed ahead. "In cases involving private property rights, the Commission has transformed this court's decisions upholding its tolling orders into a bureaucratic purgatory that only Dante could love," Millett, an Obama appointee, wrote in her concurring opinion. The panel rejected environmentalists' and landowners' claims that FERC had violated the National Environmental Policy Act, the Natural Gas Act and constitutional requirements for due process. "Because the challenges to the Commission's decision cannot surmount the deferential standards of agency review and binding circuit precedent, we deny the petitions," the judges wrote. The court has also recently affirmed FERC approvals for the Mountain Valley pipeline and the lower-profile Broad Run and New Market infrastructure expansion efforts. The latter projects launched a courtroom brawl over FERC's responsibility to quantify and analyze indirect greenhouse gas emissions from the infrastructure it authorizes. During oral arguments on the Atlantic Sunrise project, Millett criticized FERC's use of "tolling orders" to draw out its decisionmaking process, leaving pipeline opponents without a venue to challenge a project even as construction moves forward.”

[E&E News, 8/5/19] http://bit.ly/2yBpH1I

A Win for Migratory Birds: “In some good news for wildlife, the Southern District of New York just ruled that our lawsuit to protect migratory birds can move forward. In 2017, the U.S. Fish and Wildlife Service moved to gut one of our most important conservation laws – the Migratory Bird Treaty Act. Now we will continue the fight to keep migratory bird protections in place. For decades, the federal government recognized that the Migratory Bird Treaty Act applies to industrial activities, like oil and gas development. That prompted companies to take steps to avoid killing birds, where possible, by doing things like covering oil waste pits or installing flashing lights on towers. These measures saved millions of birds that otherwise would have drowned in oil or died in preventable collisions. In December 2017, the Trump Administration rolled back these protections, announcing that the law should only apply to bird deaths that are intentional, like those caused by hunting or poaching. But that interpretation is completely contrary to the law and its purpose. So we took them to court. Today’s ruling rejected the government's attempt to kick us out of court before we even got started. Now we can move forward with our arguments against the Administration's shortsighted attempt to gut migratory bird protections. As one of the nation’s first environmental laws, the Migratory Bird Treaty Act has been an essential tool for protecting migratory birds, providing for meaningful penalties against companies that harm these iconic bird species. But at the behest of the oil and gas industry and other industrial interests, the Trump administration and the Interior Department have radically reinterpreted how the Migratory Bird Treaty Act will be implemented and enforced.”

[NRDC, 7/31/19] https://on.nrdc.org/33anmc2

Environmental groups sue BLM for reopening badlands near Factory Butte to off-roaders: “Three environmental groups are suing the federal Bureau of Land Management, arguing the agency reopened thousands of acres in southern Utah to unfettered motorized use without investigating the potential environmental impacts. The groups — the Natural Resources Defense Council, Southern Utah Wilderness Alliance and The Wilderness Society — say off-roading in the area will cause soil erosion, worsen air and water quality and could hurt an endangered species of cactus, according to the lawsuit, filed Thursday in Utah’s U.S. District Court. The BLM reopened 5,300 acres around Factory Butte in Wayne County, east of Capitol Reef National Park, on May 20, just before Memorial Day. The land around the signature rock formation had been closed to cross-country off-road traffic since 2006, after a petition from SUWA to protect the cactus and soil. While the groups filing suit said in a news release they didn’t agree with the BLM’s decision to reopen the land without any sort of notice or public comment period (or to reopen to the land in general), they also believe the agency broke the law. A BLM representative declined The Salt Lake Tribune’s request for comment, saying the bureau doesn’t comment on pending litigation.”

[Salt Lake City Tribune, 8/5/19] http://bit.ly/33fgGt1

N.Y. carbon pricing plan creates quandary for FERC: “New York's grid operator is preparing to ask the Federal Energy Regulatory Commission to approve a landmark plan to put a price on carbon dioxide emissions in the power sector. The New York Independent System Operator's move, expected later this year, could pose a direct challenge to Republican FERC Chairman Neil Chatterjee and Commissioner Bernard McNamee, who so far have declined to assert any role in curbing greenhouse gas emissions while considering whether to approve natural gas projects. It would also mark the first effort of its kind by any of the electricity markets overseen by FERC and, if approved, could spark similar action in other regions, experts say. The ISO sees its proposal — in the works for nearly two years — as complementary to sweeping climate legislation signed into law by Gov. Andrew Cuomo (D) last month. The concept of allowing carbon pricing into the market isn't entirely foreign, said Ken Irvin, co-leader of Sidley Austin LLP's global energy practice in Washington, noting that the California Independent System Operator takes carbon into account pursuant to a landmark 2006 law to cut greenhouse gas emissions.  "I would guess that's going to raise lots of questions at FERC because it looks like a nongovernmental entity — the ISO — putting its finger on a public policy scale and asking FERC to endorse that which is definitely outside the norm of what FERC's done in the past," Clark said. He added that he doesn't see any ties to FERC's treatment of carbon issues through its Natural Gas Act responsibilities, or the agency's consideration of projects' environmental effects under the National Environmental Policy Act. "There's not a NEPA issue here. This is pure Federal Power Act," Clark said.”

[E&E News, 8/51/19] http://bit.ly/2M1nkh8

Greenhouse Gas Quantification Under FERC’s Pipeline Certification Process: “The required breadth of GHG evaluation in the NEPA review process also has become an environmental flash point, as the Trump administration’s White House Council on Environmental Quality (“CEQ”) and the D.C. Circuit Court of Appeals have weighed in on the matter. On June 4, 2019, for the second time in three years, the D.C. Circuit confirmed that under NEPA the Commission must gather information and evaluate upstream and downstream GHG emissions expected from proposed pipeline projects on a project-by-project basis. Yet, later that month, on June 21, 2019, the CEQ released a Draft NEPA Guidance on Consideration of Greenhouse Gas Emissions (“Draft Guidance”) providing that federal agencies need not quantify, analyze, or give weight to GHG emissions and their climate impact where there is no close causal relationship, emissions quantification is impracticable or overly speculative, or emissions are not substantial enough to warrant quantification. Industry groups have expressed support for CEQ’s Draft Guidance, hoping that it will clarify and streamline FERC’s natural gas project review process.[55] However, the CEQ’s Draft Guidance is not an agency promulgated rule, and therefore is not binding. Moreover, the Draft Guidance is inconsistent with the D.C. Circuit’s Sierra Club and Birckhead opinions, which have placed the onus on FERC to gather information regarding upstream production and downstream use of natural gas, to analyze that information to make project-by-project determinations of reasonable foreseeability, and to quantify the resulting project emissions. Given that the D.C. Circuit has rejected FERC’s attempts to avoid or minimize the quantification step, it seems unlikely that the court would now accept the Commission’s approach because of its articulation in CEQ’s Draft Guidance.”

[Sullivan & Worcester LLP, 7/30/19] http://bit.ly/2KfYVSW

One of largest timber sales in Pisgah National Forest now open for public comment: “The elk's ears must have been burning. Since they were being openly talked about mere feet away while munching their breakfast. A group of men and women in important-looking uniforms stood beneath the dense canopy of Pisgah National Forest near the Pigeon River Gorge, discussing how cutting down trees and setting prescribed fires would open up better foraging habitat for Western North Carolina's growing elk herd… The 222-page draft environmental assessment for the Twelve Mile Project was released July 24, and is open for a 30-day public comment period, ending Aug. 23. The draft shows that a roughly 18,000-acre area in the Twelve Mile area - so named because it borders 12 miles of I-40 in the Pigeon River Gorge Gorge, is aimed at maintaining a resilient and diverse forest that supports wildlife, provides a sustainable source of timber, improves water quality and aquatic habitat and improves access to the forest, said Appalachian District Ranger Richard Thornburgh. As part of the required procedure under the National Environmental Policy Act for a proposed timber sale on federal land, the Forest Service draft environmental assessment lays out different options on which people can give their opinion. These include Alternative A, the “no action” option, and the Forest Service’s preferred alternative, B, or “action alternative.’”

[Ashville Citizen Times, 9/5/19] http://bit.ly/2LYGMLP

Justin McCarthy

Communications Director, NEPA Campaign

The Partnership Project
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The Partnership Project, a registered 501 (c) (3) non-profit, is a collaborative effort of over 20 of the country’s most influential advocacy organizations, including Sierra Club, Defenders of Wildlife, League of Conservation Voters, Earthjustice, and Natural Resources Defense Council.