We cannot allow FERC to ignore our climate crisis: “As the agency responsible for permitting interstate natural gas pipelines and electric transmission, the Federal Energy Regulatory Commission (FERC) is the gatekeeper of America’s transition to a carbon-free future — a future desperately needed, given the dire warnings the global scientific community has issued concerning climate change. Which is why it is so astonishing that the agency does not even consider the climate impacts of the projects that it approves. Right now, FERC has two unfilled seats, following the passing of former Chairman Kevin McIntyre and the departure of Obama nominee Cheryl LaFleur. But the Trump administration appears determined to transform the historically bipartisan commission into a partisan vehicle to serve the interests of fossil fuel companies. With the nomination of James Danly, FERC will be made up of three Republican appointees and an intentionally empty seat, bucking a decades-long trend of appointing Republican and Democratic commissioners together. Given this partisan reality, it is perhaps no surprise that FERC has begun to refuse to abide by binding judicial decrees requiring the agency to adequately assess the climate impacts of its permitting before approval. It goes without saying that the next FERC commissioner must be someone who will comply with these judicial directives. The courts are very clear. In its 2017 decision, Sierra Club v. FERC (Sabal Trail), the U.S. Court of Appeals for the D.C. Circuit stated that since downstream emissions are indirect effects of permitting, the commission must assess all reasonably foreseeable emissions and climate impacts resulting from its approval of expanded natural gas pipeline infrastructure. By refusing to review the effects of these emissions, FERC failed to adequately balance “the public benefits against the adverse effects” of natural gas pipelines — effectively putting a finger on the scale in favor of locking America into decades of fossil fuel dependence.”

[The Hill, 10/25/19] http://bit.ly/2NbUGrZ

DeFazio shutting out Republicans on surface bill because they don't share climate goals: “House Transportation Chairman Peter DeFazio (D-Ore.) said today that he’s not involving Republicans in writing the surface transportation bill in part because they don’t share his climate goals. “I think there are certain pieces … where we have goals that [House Republicans] don’t share in terms of dealing with climate change and climate crisis in this bill,” he said. “We’re going to plow on on our own.” He told POLITICO that the Democrats “will be consulting with” House Republicans and that they “communicate with them constantly.” He said they’re “much better tuned in” than he was in 2011 when former Rep. John Mica (R-Fla.), then chairman, presented his surface bill to Democrats “two days before the markup.” DeFazio characterized the bill he’s writing as a “massive” and “transformative” bill that will provide “a lot more money for transit, a lot more money for bringing things up to a state of good repair, a lot more money to build in resilience, a lot more money to provide for moving toward a carbon- and fossil fuel-free transportation future.” He said he “heard via the grapevine that the Republican committee staff on my side of the Hill was appalled“ that Sen. John Barrasso (R-Wyo.) included a climate title in the Senate version of the surface bill, S. 2302 (116). “So that’s in part why we’re not trying to work with them.” Transportation Committee Republicans did not immediately respond to a request for comment. DeFazio is aiming to release the bill at the end of this year and mark it up early next year.”

[POLITICO, 10/25/19] http://bit.ly/2MOkj3g

Democrats slam Pebble as mine backers call debate over: “Power has shifted since the last House hearing on the Pebble mine but not the dividing line between the parties on the controversial gold and copper project upstream from Alaska's Bristol Bay. The House Transportation and Infrastructure Subcommittee on Water Resources and Environment renewed debate over the Pebble project at the first hearing in three years. Democrats remain planted behind fishermen, Alaska Native groups and environmentalists who oppose Pebble as a threat to Bristol Bay and the world's largest wild sockeye salmon run. Republicans are still committed to mining company Pebble LP's demands for "due process" in the National Environmental Policy Act review underway for the project. "NEPA is the gold standard, except when NEPA is actually being used," subcommittee ranking member Bruce Westerman (R-Ark.) said. "And now NEPA and the people carrying it out are villains." Westerman said the Army Corps of Engineers should be left alone to finish its environmental impact statement, while the subcommittee focuses on broader water infrastructure issues. "I don't think there is anything more important than water," Rep. Debbie Mucarsel-Powell (D-Fla.) said. "It is our job to conduct this important oversight." The Pebble mine has become one of the most expensive single issues on Capitol Hill. Thus far in 2019, Pebble has reported $1.22 million in lobbying, on pace to exceed last year's total, while national conservation groups like the Natural Resources Defense Council and Trout Unlimited have fought it in Congress. Mine critics believe the Trump administration has fast-tracked the Pebble project, which is expected to complete permitting before the 2020 election. "The NEPA process only works well if it's done well, and this one is not being done well," former Obama EPA Region 10 Administrator Dennis McLerran said.”

[E&E News, 10/25/19] http://bit.ly/2oh6D7g

Indian Nations Law Update - October 2019: “In Protect Our Communities Foundation v. LaCounte, 2019 WL 4582841 (9th Cir. 2019), the Tule River Tribe sought to build eighty-five wind turbines about sixty miles east of San Diego, California. During the planning and approval process, the project was split into two phases. Phase I concerned sixty-five turbines constructed on federal land in a valley and required approval from the Bureau of Land Management (BLM), which is responsible for granting rights-of-way for use of federal lands. Phase II, relating to twenty turbines on the Tribe’s reservation, required approval from BIA. Both phases were approved. Plaintiffs sued, challenging the approvals under the National Environmental Policy Act (NEPA) and Administrative Procedure Act. The district court affirmed the approvals and the Ninth Circuit affirmed, holding that the agencies had complied with the requirements of the NEPA: “What is troubling about this case is that it appears that, if and when the project proceeds, some eagles may die or have their nests impaired diminishing reproduction. But the protections given by our environmental laws are not absolute. NEPA doesn’t control any substantive result but rather requires procedural protections to ensure that a ‘hard look’ was given to reasonable alternatives”… In Pit River Tribe v. Bureau of Land Management, 2019 WL 4508340 (9th Cir. 2019), the Bureau of Land Management (BLM) decided to continue twenty-six geothermal leases located in California’s Medicine Lake Highlands with the Glass Mountain Unit Plan pursuant to its authority under 30 U.S.C. § 1005(a) of the Geothermal Steam Act (GSA), which provides that geothermal leases on federal land have primary lease terms of ten years but may be continued if geothermal steam is produced in commercial quantities during the ten-year primary term. The Pit River Tribe and environmental groups sued, contending that conditions for continuation of the leases had not been met and that the extension of the leases violated the GSA, NEPA, National Historic Preservation Act (NHPA) and the federal government’s fiduciary trust obligation to Indian tribes.”

[The National Law Review, 10/24/19] http://bit.ly/2BEu5yv

Should there be ATVs in Arches?: “Beginning on Nov. 1, off-highway vehicles known as OHVs—a term that includes ATVs and UTVs—will be permitted on roads within national park boundaries. What this will look like to the average visitor and the quality of the parks depends on who you ask. In recent years, the off-road vehicles have become increasingly popular, with over 202,000 total registered owners of street-legal OHVs in the state, according to the Utah State Bulletin. Hundreds of miles of public roads and trails managed by the Bureau of Land Management and the U.S. Forest Service have been approved for OHV use, but the vehicles have long been barred from traveling roads within the national parks. The Code of Federal Regulations governing national parks includes a passage that says that traffic and vehicle use within a park area is governed by state law unless specifically addressed by federal regulations. That small piece of policy appeared of little consequence until 2008, when Utah lawmakers passed a bill that allowed street-legal OHVs on all state and county roads. The bill originated with rural lawmakers and residents and at some point included an opt-out clause for any community in the state, according to then-Utah State Rep. Brad King, who spoke at a Moab community meeting in 2015 and said that the clause “mysteriously” disappeared from the final version of the bill. Today, only Salt Lake County is exempt. Utah’s parks barred OHV use in their policies and, for over 11 years, this discrepancy went mostly unremarked upon. But for some OHV fans, that hasn’t sat right.”

[Moab Sun News, 10/25/19] http://bit.ly/342KwAE

E-Bikes in Tahoe National Forest Draw Equestrian Group’s Ire: “Equestrian groups are suing the U.S. Forest Service over its recent decision to allow electric bikes on 132 miles of non-motorized trails in the Tahoe National Forest. The agency failed to carry out an environmental impact statement and to provide a public notice and comment period as required by law before inviting Class 1 e-bikes onto nature trails also used by hikers on foot and trail riders, the Back Country Horsemen of America told the U.S. District Court for the Eastern District of California. Class 1 e-bikes have pedal-assist motors, which means the rider’s own pedaling triggers the motor rather than a separate throttle. The bikes can achieve speeds of 20 miles per hour, the equestrian group says. The group says it’s worried about surprise encounters with the fast-moving bikes and about the environmental wear and tear their use will have on trails maintained for non-motorized recreation. The e-bike decision is also an inadequately explained reversal of a prior agency position that the bikes are self-propelled motor vehicles and therefore not permitted on non-motorized trails, the Oct. 23 lawsuit alleges. The Forest Service’s own Travel Management Rule requires it to provide a notice and comment period on proposed revisions to vehicle classifications with regard to national park management, it says.”

[Bloomberg Environment, 10/24/19] http://bit.ly/31MBwOG

Outdoor groups launch legal campaign against e-bikes: “Outdoor groups in California sued the Forest Service yesterday in an attempt to block a plan that would permit electric bikes on nonmotorized trails in Tahoe National Forest. The suit alleges that federal officials violated the Travel Management Rule, which limits motorized transportation to certain trails to prevent harm to natural resources. "Allowing motorized bicycles on nonmotorized trails meant for hikers, backpackers and equestrians poses risks and conflicts for the many visitors who enjoy that type of quiet recreation," said Helen Harvey, president of the Gold Country Trails Council in Nevada County, one of the plaintiffs in the lawsuit. The plaintiffs also say the Forest Service — which is part of the Department of Agriculture — did not follow the National Environmental Policy Act in assessing the impacts of its decision. In a statement, the plaintiffs called the move a "dramatic change in trail policy" that was made with no public input. "We believe there is a place for motorized bikes, but nonmotorized trails — by definition — are not the right place," said Darrell Wallace, chairman of the Back Country Horsemen of America, another plaintiff in the case. The lawsuit is certain to be watched closely as the Trump administration moves to permit electric bikes on more public lands controlled by the Interior Department. Interior Secretary David Bernhardt on Tuesday ordered three agencies — the Bureau of Land Management, Fish and Wildlife Service, and Bureau of Reclamation — to follow the lead of the National Park Service in allowing more e-bikes. "To my knowledge, this is the first lawsuit addressing the issue of e-bike use on nonmotorized trails on federal public lands," said Alison Flint, director of litigation and agency policy with the Wilderness Society, another plaintiff in the lawsuit. Flint said the Tahoe decision "violates decades of established laws and policies designed to ensure that decisions about where motorized recreation occurs on our shared public lands are subject to public input and environmental analysis."’

[E&E News, 10/24/19] http://bit.ly/2Nbz2Em

California Groups Sue To Keep Motorized Electric Bikes off Non-motorized Trails in Tahoe National Forest: “Backcountry trail and forest groups in California joined together to challenge the U.S. Forest Service’s decision to allow motorized bikes to operate on non-motorized trails in the Tahoe National Forest. Plaintiffs in the suit include Backcountry Horsemen of California, Back Country Horsemen of America, the Forest Issues Group and The Wilderness Society. The groups are represented by the Western Environmental Law Center. “The Forest Service cannot simply disregard its own rules when it comes to allowing electric bikes on nonmotorized trails on the Tahoe National Forest,” said Susan Jane Brown, attorney with the Western Environmental Law Center. “With this lawsuit, we seek to compel the agency to follow those rules.” “Allowing motorized bicycles on nonmotorized trails meant for hikers, backpackers and equestrians poses risks and conflicts for the many visitors who enjoy that type of quiet recreation,” said Helen Harvey, president of the Gold Country Trails Council in Nevada County. “It also undermines the trail building and maintenance time and money our volunteers have contributed in the Tahoe National Forest for decades.” The groups cite several violations of law and policy, including the Travel Management Rule, which confines motorized transportation to certain trails to prevent harm to nature and conflicts with other trail users. Also, the Forest Service did not assess the environmental impacts of its decision, as required by the National Environmental Policy Act, one of the nation’s bedrock conservation laws.”

[WELC, 10/24/19] http://bit.ly/2Joi7gz

Forest Service pines for solution at Walton Lake: “Management of a 40-acre grove of diseased trees should become clearer in February when the U.S. Forest Service releases its latest environmental assessment for the Walton Lake area. The document will analyze the effects of vegetation management in the forest near the lake, a popular recreation area 30 miles east of Prineville, said Patrick Lair, public affairs officer for the Ochoco National Forest & Crooked River National Grassland. Information from the document, coupled with public comment, will be used to render a final decision. The Forest Service is considering a sanitation harvest, which would remove all types of trees that serve as a host for the disease. This would include the removal of scores of trees infected with or susceptible to laminated root rot, which decays roots and prevents them from delivering water and nutrients to a tree. The weakened trees are susceptible to falling over in a strong wind, a potential risk for forest visitors. The Forest Service also proposes thinning trees to reduce competition for water from large ponderosa pine trees. A partial clearing along the roadside is an option being considered by the Forest Service, as is doing nothing. A sanitation harvest differs from a clear cut because it would remove all species that serve as hosts for the disease, including Douglas fir and grand fir, but will retain the ponderosa pine and western larch, according to Beth Peer, environmental coordinator for the Ochoco National Forest. The sanitation harvest has drawn public debate because it would irrevocably alter an area that is special to many longtime Crook County residents. More than 14,000 people visit the area in the summer months for hiking, biking and fishing opportunities. Laminated root rot affects grand fir and Douglas fir trees but does not affect ponderosa pine or larch trees. Although the disease exists throughout the moist mixed conifer parts of the Ochoco National Forest, the spread of the disease is contained to about 40 acres of the Walton Lake recreation area because fir trees are only in the shady, or “moist” side of Walton Lake. Drier parts of the area are home to mostly pine trees.”

[Ben Bulletin, 10/24/19] http://bit.ly/2NdPaVD

Sen. Wicker portrays Jim Hood lawsuit against Corps as “political stunt”: “On Thursday, the office of Attorney General Jim Hood announced he planned to file suit against the U.S. Army Corps of Engineers to require the federal government to pay for the extensive environmental and economic damaging to the Mississippi Gulf Coast caused by the repeated and lengthy openings of the Bonnet Carré Spillway in 2019. Not long after the announcement he received backlash by U.S. Senator Roger Wicker. Wicker has asserted that Hood’s decision to file suit at this particular time is directly related to his run for governor in November and President Trump’s visit to the state in support of Republican Tate Reeves. The Bonnet Carré Spillway was opened for a record 123 days in 2019. Based on Corps’ numbers, a total of 1.35 trillion cubic feet (almost 10 trillion gallons) of Mississippi River water was discharged through the spillway during 2019. That discharge is equivalent to the volume of more than 15 million Olympic-size swimming pools which, if laid end to end, would circle the Earth more than 18 times. According to the Institute for Marine Mammal Studies, the fresh water of the Mississippi River carries with it industrial pollutants from 31 states and two Canadian provinces. When the Corps repeatedly opened the Bonnet Carré Spillway in 2019, trillions of gallons of this polluted fresh water was dumped into the Mississippi Sound. “The spillway opening has destroyed the State’s oyster reefs, decimated the crab and shrimp catch, and killed more dolphins than the 2010 BP Oil Spill,” General Hood said. The lawsuit will seek relief under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), National Environmental Policy Act (NEPA), Resource Conservation and Recovery Act (RCRA) and contain other claims under federal law and Mississippi law.”

[Yall Politics, 10/14/19] http://bit.ly/2oh6LDM

Justin McCarthy

Interim Director, NEPA Campaign

The Partnership Project
1300 L St NW

Washington, DC 20005 USA
C: (540) 312-3797

E: jmccarthy@partnershipproject.org

protectnepa.org

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.