White House adviser's exit seen signaling end of infrastructure push: “The abrupt exit of President Trump's top infrastructure adviser this week leaves the administration's plan — already unlikely to clear Congress this year — without a key advocate. D.J. Gribbin, who served as special assistant to the president for infrastructure for more than a year, is "moving on to other opportunities" now that Trump's $200 billion infrastructure plan has been handed over to Congress, the White House said. "I think it's ultimately a big deal. It isn't just one more voice," said Fred Wagner, a partner with Venable LLP's Environmental Group who previously served as chief counsel for the Federal Highway Administration (FHWA). "[Gribbin] was in many ways the leading voice for the principles and concepts that were the foundation of the infrastructure plan." A former White House aide said Gribbin likely left because there's no pathway for the president's $1 trillion infrastructure package this year, a sentiment echoed on social media. "DJ Gribbin is a good man caught in the wrong place at the wrong time," tweeted Joseph Brusuelas, a chief economist at RSM US LLP. "He was the only person truly dedicated to pushing infrastructure at the White House. His exit likely signals the demise for any real infrastructure project in this administration." The move came as a surprise to those who expected Gribbin would stick around to stump for proposals he helped write and marks the departure of yet another experienced policy operative from a White House that has struggled to retain staffers. While Gribbin's exit also triggered jokes on Twitter that "infrastructure week" had finally come to an end — the White House had proclaimed frequent infrastructure-themed weeks — his departure is a loss for the president's efforts. He also met behind closed doors with moderate Democrats seen as key votes on a broad, bipartisan infrastructure package. Gribbin also had deep expertise in structuring public-private partnership transactions, having filled stints at Macquarie Group Ltd., the Department of Transportation and FHWA from 2003 to 2005. It's unclear whether that task will now solely fall to Alex Herrgott, who is leading an office focused on speeding regulatory reviews at White House Council on Environmental Quality and worked in lockstep with Gribbin. A White House official said the National Economic Council, under new director Larry Kudlow, plans to bring in someone to fill Gribbin's role.”

[E&E News, 4/8/18] https://goo.gl/jzvvp9

Stop the G.O.P.’s Conservation Demolition Crew: “The destruction is already well underway. Even as I write, Mr. Bishop and the other members of the House Committee on Natural Resources are waging a relentless assault on each and every one of these essential laws. If they succeed, our priceless public lands, water and wildlife will suffer irreversible damage. Consider, for instance, the National Monument Creation and Protection Act, which Mr. Bishop shepherded through his committee in October. Despite its name, the bill would fundamentally gut one of our oldest conservation laws. It would amend the Antiquities Act of 1906 by severely restricting the president’s ability to independently designate national monuments on public land to protect natural, historic and cultural treasures. His legislation would also empower future presidents to reduce such monuments in size, effectively enshrining in law the Trump administration’s ongoing and legally dubious attack on national monuments across the country, especially in Mr. Bishop’s home state. Then there’s the Resilient Federal Forests Act, introduced in Congress by Representative Bruce Westerman, Republican of Arkansas. Among other provisions, the bill would excavate gaping loopholes in the National Environmental Policy Act’s crucial environmental review process and give timber companies greater latitude to exploit our national forests. It would also make it more difficult for everyday Americans to use the courts to seek oversight of timber-harvesting activities on federal land. Mr. Westerman, it’s worth noting, has received more than $200,000 in campaign contributions from timber interests over his career. The House passed the bill in November. Finally, there is the Endangered Species Act, a law that has saved fish, other animals and plants from extinction. Mr. Bishop has said that he “would love to invalidate” the act, and he’s well on his way. His committee recently passed a package of proposals that would bleed the law by a thousand cuts. Among other things, the bills remove Midwestern gray wolves from the endangered species list, require the federal government to consider the economic impact of protecting species under the law and make it more burdensome for citizens who sue in federal court to enforce the law’s provisions.”

[New York Times, 4/5/18] https://goo.gl/oMPCnw

Senator Thune: There’s no offseason for wildfire prevention: “South Dakota is no stranger to wildfires. In fact, while we’re technically still in the offseason, it was only a few months ago that the Legion Fire scorched tens of thousands of acres in Custer State Park and forced numerous home evacuations in the area. Thankfully, no one was injured. It was a good reminder, though, that there’s no offseason when it comes to discussing ways to reduce the risk of future wildfire incidents, which is a good thing for the land, property owners, and local communities that often face the brunt of the damage and clean-up. Congress recently took an important step in that direction. Included in a newly enacted law, which I supported in the Senate, was a package of proposals that will take a significant financial burden off of the U.S. Forest Service (USFS), one of the primary federal agencies that’s often tasked with both battling forest fires and helping to prevent them from happening in the first place. Thanks to the change in the law, fire-borrowing (using previously allocated funds for unrelated fire suppression costs) will now be a thing of the past. A new contingency account will be established so the USFS can more efficiently prioritize its annual funding without having to worry about the uncertainty that can be created in bad wildfire years. I’ve also introduced a handful of bills over the last few years – including the Prescribed Burn Approval Act, which was signed into law in 2016 – that would help with wildfire prevention and federal forest service management. Last August, I introduced the Forest Service Management Improvement Act. It would make several improvements to the forestry title of the farm bill by increasing the effectiveness of the Healthy Forest Restoration Act and improving the National Environmental Policy Act, which would help simplify and streamline federal forest management. Several of these provisions were included in another bill, the Wildfire Prevention and Mitigation Act, which I cosponsored last fall with fellow senators from western and Great Plains states. While it’s still awaiting action in the Senate, I’m glad to see we’re already making good progress on reducing wildfire risk in other areas – an issue that I will continue to work with my colleagues, federal agencies, and landowners to strengthen.”

[Capital Journal, 4/9/18] https://goo.gl/EfPQF6

9th Circuit reverses federal district court injunction against irrigation project: “The U. S. Court of Appeals for the Ninth Circuit has reversed the federal district court in Great Falls in the case by Defenders of Wildlife against the Lower Yellowstone Irrigation Project. The district court had issued a preliminary injunction that stopped construction of a new irrigation weir and fish bypass. The reversal vacates that preliminary injunction. This is outstanding news for our communities. It is cause to celebrate. We still face, however, the upcoming hearing on summary judgment in Great Falls on April 19. The issues on a preliminary injunction and the issues on summary judgment are not the same. Our victory in the 9th Circuit does not guarantee victory on summary judgment. But the victory will have influence, and in this instance the influence might be strong. The influence might be strong because of how strong the opinion of the 9th Circuit is in this case. First, the 9th Circuit acted through a three-judge panel. Theirs is not a split decision. The three judges decided to reverse the district court unanimously. Second, this is not a nip-and-tuck reversal. It is a fairly lopsided reversal. There are four issues on appellate review of a preliminary injunction, and the 9th Circuit held the district court was in error on all four of the issues. Error on one of them would have been enough, but the 9th Circuit went through all four of them. Third, the degree of error on some of the issues must be fairly extreme to warrant reversal. The appellate court must find that the district court abused its discretion and acted arbitrarily and capriciously. Legally speaking, that is some pretty tough talk, and the 9th Circuit used that language to describe what the Obama appointee, Judge Brian Morris, had done when he issued the preliminary injunction. he 9th Circuit said: “On each of the claims at issue, the district court erred in supplanting the deferential standard of review under the Administrative Procedure Act.” This just means that when an agency has a field of expertise, courts should show deference to their decisions within that field of expertise. The 9th Circuit did not see Judge Morris showing the proper, legal deference to the expertise of those who made the biological assessment that the fish bypass would make things better for the pallid sturgeon.”

[KPVI, 4/7/18] https://goo.gl/nNqmwZ

Despite DOI policy reversal on incidental takes, project developers still face risk of criminal liability under MBTA: “At the end of 2017, the Department of the Interior (DOI) announced that it will no longer pursue criminal enforcement for “incidental takes” under the Migratory Bird Treaty Act (MBTA). The change in legal interpretation of the MBTA is one of the latest environmental enforcement developments from the Trump Administration, as part of its goal to reduce regulatory burdens on industry, project developers and the public. The MBTA imposes criminal liability on a person, who “at any time, by any means or in any manner” does, or attempts to, take, kill or capture any migratory bird or part, nest or egg of such bird. The statute covers nearly all native birds in the US. The statute of limitations for bringing a charge under the MBTA is five years. Clearly prohibited under the MBTA are intentional takes of protected birds, which would include poaching and hunting without a permit. More contentious, and more important for wind farm operators and energy development generally, is the concept of an “incidental take,” which is a take that results from an activity that was not intended to result in the taking. Put another way, an incidental take includes accidents that result in a taking. It’s a concept that is not included under the MBTA, but is a defined term under the related Endangered Species Act. Until now, DOI has tempered its enforcement of incidental takes through exercising prosecutorial discretion. DOI has provided guidelines that developers of major infrastructure projects now follow as common practice in hopes that DOI will exercise its prosecutorial discretion in the event of an incidental take during project development, construction and operation. However, even these guidelines acknowledge that compliance will not shield a developer from potential MBTA criminal liability. Thus, the regulated community has had little certainty of when or under what circumstances otherwise lawful activity could give rise to criminal liability. In its new guidance DOI rejects its prior stance, noting that interpreting the MBTA to prohibit incidental takes would “turn every American who owns a cat, drives a car, owns a home” into a potential criminal. Instead of relying on prosecutorial discretion to avoid imposing criminal liability for otherwise economically beneficial and lawful activities, DOI’s guidance embraces the legal position that the MBTA does not prohibit incidental takes. In other words, DOI does not need to exercise prosecutorial discretion because criminal liability does not attach to an incidental take. By interpreting the MBTA as not prohibiting incidental takes, the Administration has potentially made it much easier for projects that have a high risk of incidental takes to secure federal approval under the National Environmental Policy Act (NEPA).”

[Lexology, 4/9/18] https://goo.gl/snUiLo

Justin McCarthy

Digital Director, NEPA Campaign

The Partnership Project
1101 Connecticut Ave NW, 10^th Floor

Washington, DC 20036 USA

T: (202) 650-0327
C: (540) 312-3797

E: jmccarthy@partnershipproject.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.