Guest Op-Ed: What Trump’s Infrastructure Plan Missed About the Review Process: "Last week, while speaking on NPR’s All Things Considered about the Trump Administration’s newly released infrastructure plan, D.J. Gribbin, the President’s special assistant for infrastructure policy, argued that infrastructure choices were best made at the local level. “If you go out and you ask the public, you know, where do they want to invest?” he said. “They have much more confidence if they write a check locally.” The statement implied that, simply by virtue of being taxpayers, most Americans have, or could have, a direct say over the choices officials make about major infrastructure choices. Our nation’s history of infrastructure decision-making makes it clear that this is hardly the case. While there have been a multitude of fights over infrastructural projects large and small since World War II, only a handful of those initiatives have resulted in direct changes to megaprojects. This is especially true in the realm of transportation infrastructure. While not many have been successful, the fights themselves are crucial for us to understand. Debates about infrastructure are elemental to the shape of our cities. In the early 1970s, for example, just after the passage of NEPA, residents in the Harrisburg and Second Ward neighborhoods of central Houston used environmental impact statements as a venue through which to voice concerns about a major highway project and forced the Texas Highway Department (now TxDOT) to create a freeway study team that engaged with the public in ways the Department had never done before. In countless examples in Houston, Texas and across the United States, federal oversight legislation has been crucial to giving any modicum of voice to everyday Americans. Given the historically rooted intent of these acts, the Trump Administration’s praise for local decision-making and public decision-making rings hollow."

[Eno Center for Transportation, 2/19/18] https://goo.gl/wNpSzk

House Dems probe BLM's streamlining recommendations: "Three high-ranking Democrats are asking Interior Secretary Ryan Zinke for more details on how the Bureau of Land Management compiled a set of sweeping suggestions to streamline environmental reviews on public lands. BLM's so-called streamlining report was finalized in September 2017 but was not made public until The Washington Post reported on it earlier this month. The 22-page document was assembled in response to Zinke's March 2017 memo, which called on the agency to review how it conducts environmental reviews under the National Environmental Policy Act, or NEPA. The report provides a series of policy, regulatory and legislative recommendations that would, the agency states, expedite and consolidate the environmental review process for fossil fuel leasing on public lands as well as other actions that BLM handles, including managing wild horses and burros, doing forest thinning projects and issuing grazing permits. Namely, BLM suggests vastly expanding the number and type of projects that would be excluded from the full environmental review process because it has been determined that those projects have minimal impacts on the environment. Environmental advocates say the expansion of these categorical exclusions would undercut the rigor of the environmental review process and that many of the report's suggestions would silence the public. In their letter sent late last week, Reps. Raúl Grijalva of Arizona, Alan Lowenthal of California and Donald McEachin of Virginia expressed dismay at the recommended policy changes. The lawmakers also requested documentation and explanation about the process BLM undertook in crafting the report. They asserted that the process was not transparent. For example, they noted that instead of collecting comments via the customary regulations.gov portal, BLM put up a Google form on its website to collect feedback for the report. The suggestions proposed by BLM in the report are dense and sometimes fairly technical, but many of them would result in major changes to what types of things need environmental reviews, said Nada Culver, senior counsel and director of the BLM Action Center at the Wilderness Society. For example, the report calls on BLM to expand the definitions under which the agency can use a determination of NEPA adequacy (DNA). DNAs are a BLM-specific policy in which the agency determines a project does not qualify under the categorical exclusion banner but does not need a full environmental review.

[E&E News, 2/26/18] https://goo.gl/qgR98z

Court dismisses NEPA challenge to Michigan trail: "Citizens who don't meaningfully participate at the planning stage of a federal action forfeit their ability to later challenge the environmental review of that action, a federal court ruled today. The 6th U.S. Circuit Court of Appeals dismissed claims by a group of local residents challenging the National Park Service's review of a scenic trail through Michigan's Sleeping Bear Dunes National Lakeshore. The plaintiffs can't bring their claims because they didn't raise their objections when NPS issued a revised plan for the trail, Judge John Rogers wrote for the court. "Plaintiffs failed to participate in the Park Service's planning process in a manner that would alert the Park Service to their objections to the 2009 plan," Rogers, a George W. Bush appointee, wrote for a three-judge panel of the court. At issue is the Sleeping Bear Heritage Trail, a multi-use trail that runs 27 miles through the national lakeshore along Lake Michigan. The National Park Service released a proposed plan and environmental assessment for the trail in 2008, then revised it in 2009. Nearly six years later, the Little Traverse Lake Property Owners Association and individual residents challenged the plans for the trail. In a lawsuit filed in 2015, they argued that the 2009 plan violated the National Environmental Policy Act, in part by failing to prepare a full environmental impact statement. The residents appealed to the 6th Circuit after a district court dismissed their claims. Although the residents commented on the Park Service's proposed plan for the trail in 2008, Rogers today wrote that they failed to later "renew their objections" when the service modified the plan in 2009. "Parties must renew their objections if they believe the agency failed to sufficiently address their concerns," Rogers wrote, "so that the agency is put on notice of the parties' position and contentions with regard to the new proposal." The court also rejected claims that the National Park Service failed to consider an alternative route provided by the residents."

[E&E News, 2/23/18] https://goo.gl/Y7MCs5

Sabal Trail pipeline's fate still up in the air: "All eyes are on a federal court this week as it weighs whether to shut down a natural gas pipeline in the Southeast. The U.S. Court of Appeals for the District of Columbia Circuit could decide any day whether to issue an order that forces the Sabal Trail pipeline to halt operations or keep the project on track while regulators finish a review of its impacts. The D.C. Circuit last year found that the Federal Energy Regulatory Commission didn't take a close enough look at climate impacts when it approved Sabal Trail and the broader Southeast Market Pipelines Project. A court mandate that would halt construction and operations until FERC fixes its review has been in limbo ever since. On Friday, lawyers for FERC and pipeline developers Spectra Energy Partners LP, NextEra Energy Inc. and Duke Energy Corp. made their final case for allowing Sabal Trail to move forward. Parts of the pipeline network — which crosses Alabama and Georgia to deliver gas to power plants in Florida — are already operating, while others are still under construction. FERC argued in a filing last week that it needs the court to delay the mandate until March 23 so it can complete the climate review ordered by the D.C. Circuit last year. The agency released the supplemental environmental impact statement three weeks ago but hasn't yet issued a final decision on whether to recertify the pipeline based on the new study. The pipeline developers on Friday warned the court that Florida customers would face serious disruptions if Sabal Trail is turned off. They noted that power plants in the Sunshine State have already relied on the pipeline on high-demand days when two other Florida lines were at capacity. The Sierra Club, which raised the initial challenge to the project, has maintained that allowing Sabal Trail to stay in service before FERC fully addresses violations of the National Environmental Policy Act would undermine the federal statute. If the court sides with the Sierra Club, it could waive the customary seven days to issue the mandate or grant the group's request to issue the order immediately. Even a temporary shutdown of Sabal Trail would mark the first time a federal court has halted a major natural gas pipeline because of concerns about inadequate climate review."

[E&E News, 2/26/18] https://goo.gl/Baeiok

Keystone XL Pipeline Ruling: Trump Administration Must Release Documents: "A federal judge in Montana has ordered the Trump administration to release documents it relied on to approve construction of the Keystone XLpipeline last year, a development that pipeline opponents believe could stymie the controversial project. Last March, the State Department approved construction of the nearly 1,200-mile pipeline, which would carry crude oil from the tar sands region of Alberta, Canada, to Nebraska and ultimately to refineries on the Gulf Coast. The approval reversed a 2015 decision by the Obama administration, which had blocked the project by refusing to issue a permit for the pipeline to cross the Canadian border. Environmental groups sued the Trump administration, saying its reversal broke three laws and that it failed to conduct additional, updated environmental reviews before granting approval. As the lawsuit progressed, the government released only some documents, prompting environmentalists to push for a more complete record—or an explanation of why other documents were being withheld. In January, the plaintiffs told the court that the government "wrongly omitted an unknown number of emails and other internal communications." Under the law, the government can withhold certain documents that are deemed "deliberative," but it has to provide a "privilege log" that explains why they were withheld from the record. The Trump administration now has until March 21 to release the documents or the privilege log. Government attorneys had argued it could take years and more than $6 million to review to documents before releasing them, noting that the record contained at least 4.5 million documents. They called the environmental groups' request a "fishing expedition." Prange said the government's estimates were 'vastly overblown.'"

[Inside Climate News, 2/22/18] https://goo.gl/QQnjHM

Justin McCarthy

Digital Director, NEPA Campaign

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