Appeals court to hear lawsuit over Louisiana oil pipeline: “A company building a crude oil pipeline in Louisiana is asking a federal appeals court to throw out a judge’s order that had halted construction work in an environmentally fragile swamp. A three-judge panel of the 5th U.S. Circuit Court of Appeals is scheduled to hear arguments Monday from lawyers for Bayou Bridge Pipeline LLC, federal regulators and environmental groups opposed to the project. Baton Rouge-based U.S. District Judge Shelly Dick sided with environmental groups in February and issued a preliminary injunction stopping all Bayou Bridge pipeline construction work in the Atchafalaya Basin until the groups’ lawsuit over the project is resolved. But a different panel from the appeals court agreed in March to suspend that order pending a final decision by the 5th Circuit. Last month’s ruling allowed the company to resume construction work. In an April 19 court filing, project manager Cary Farber said construction crews “mobilized” two days after the March 15 decision and resumed clearing a path for the pipeline through the wetlands. The company anticipated that approximately 95 of the 262 total acres in the pipeline’s path through the basin will be cleared by the end of April, Farber said. Sierra Club and other environmental groups sued the U.S. Army Corps of Engineers in January, saying it violated the Clean Water Act and other environmental laws when it approved a permit for the project. The judge said the project potentially threatens the hydrology of the basin and “poses the threat of destruction of already diminishing wetlands.” She also agreed with environmental groups that centuries-old “legacy” trees can’t be replaced once they’re cut down. But the appeals court’s ruling last month said the company is likely to succeed on the merits of its claim that Dick abused her discretion in granting the injunction. Dick should have allowed the case to proceed “on the merits” and sought additional information about the “deficiencies” she identified in her ruling, the panel’s majority opinion added. The basin is the nation’s largest river swamp and includes roughly 880,000 acres (3,560 sq. kilometers) of forested wetlands, according to the groups’ lawsuit.”

[AP, 4/30/18] https://goo.gl/1TMCg6

Pipeline resistance stews in La. cypress swamps: “As executive director of Atchafalaya Basinkeeper, Wilson is charged with protecting the largest river swamp in America from a steady current of new threats. He sees Bayou Bridge as the latest. The oil project runs 162 miles across southern Louisiana, cutting through the heart of the Atchafalaya Basin about an hour southeast of Baton Rouge. Wilson and a coalition of crawfishermen and environmentalists are concerned that the pipeline's 23-mile traverse through the basin will wreck the delicate ecosystem here, which has already been damaged by other projects. The Atchafalaya's forested wetlands support migratory birds, gators and crawfish and play a critical flood protection role by sponging up floodwaters to spare downstream neighbors. Some advocates say it should be a national park. The iconic natural feature here is the bald cypress. Known for its feathered leaves, flared trunk and knobby "knees" that rise in surrounding wetlands, the Louisiana state tree is treasured for its peculiar appearance and vital role in the ecosystem. Cypress swamps filter water, provide wildlife habitat and help prevent erosion. Some of the trees are centuries old. Wilson was dismayed when he heard the federal government's plan for mitigating Bayou Bridge's damage to the swamps: restoring a different type of wetland in an agricultural area some 55 miles away. The offsite project, at the northern edge of the Atchafalaya Basin, is a type of mitigation strategy federal regulators routinely approve to offset wetlands damage. Today, the environmental coalition heads back to court to make its case to federal judges again, asking the 5th U.S. Circuit Court of Appeals to reinstate the freeze on construction and tree clearing. The plan for mitigating the damage to cypress trees comes from the Army Corps of Engineers, which approved permits for Bayou Bridge in December, requiring off-site mitigation in a different area of the Atchafalaya Basin. The approach stems from a 2008 Army Corps and EPA regulation that governs compensatory mitigation for development in wetlands. The rule — touted by the agencies as an effort to boost success and transparency of approved projects — set out preferred offset strategies for wetlands permits approved under Section 404 of the Clean Water Act. The policy gives preference to "mitigation banks," which are private wetlands sites that sell credits to developers to offset damage elsewhere. A permittee makes up for wetlands damage caused by its project by purchasing credits for acreage at an approved mitigation bank. The long-standing federal goal is "no net loss" of wetlands.”

[E&E News, 4/30/18] https://goo.gl/45ho5d

Projects That Threaten Species to Get EPA Help With Permitting: “A new EPA office will try to keep federal environmental reviews from needlessly slowing down permitting for energy, manufacturing, and infrastructure projects that threaten endangered species, an agency official said April 26. The Environmental Protection Agency plans to announce as early as April 27 that its new permitting office, which will be housed at the EPA’s Office of Policy, will be charged with moving through permitting that gets bogged down by environmental reviews as well as interagency discussions about protecting endangered species, among other factors. The new office will take over national environmental reviews that were handled by the EPA’s Office of Enforcement and Compliance Assurance and interagency consultations on permits by relevant program offices, such as the Office of Water, the agency official said. The agency’s move builds on President Donald Trump’s infrastructure plan to streamline permitting decisions among various federal agencies. The new permitting office will follow through on the EPA’s goal to issue environmental permits within six months for major energy, transportation, manufacturing, and infrastructure projects. The EPA’s internal review of Clean Water Act permits revealed that interagency consultations over threats to endangered species were holding up the process, Henry Darwin, EPA chief of operations, told Bloomberg Environment in an interview in March. Darwin is spearheading an agencywide effort to review, identify, and address problems that are slowing down the EPA’s permitting programs. The Trump administration also worries about the speed of broader reviews of environmental impact required by the National Environmental Policy Act. The Office of Policy within the administrator’s office until now has no staff or experience coordinating permitting reviews because they were coordinated out of the enforcement office or through appropriate offices like water or air. “This move appears to be politicizing permitting decisions by moving them into the administrators office and out of the program offices where there are technical experts who know the rules and the science,” Gilinsky told Bloomberg Environment.”

[Bloomberg BNA, 4/30/18] https://goo.gl/n2aVA3

Don't undermine local voices in environmental decisions: “Poll after poll has shown that a large segment of the electorate supported President Trump precisely because he was so unacceptable to elites. These voters believe, with some justification, that elites tune out their voices. Voting for President Trump, and supporting him despite his difficulties, is these voters’ way of demanding to be heard. How ironic it is, then, that some Republicans who benefited from this disaffection are seeking to eviscerate one of the few federal laws that assures ordinary people and small businesses a voice before the government takes action that could radically impact their lives. The National Environmental Policy Act (NEPA), on which the House Committee on Natural Resources held a hearing Wednesday, is best-known for its role in protecting vulnerable wildlife and the cleanliness of our air and water. But it is also a vital citizen empowerment statute… Without NEPA, these decisions would be made entirely by federal agencies and industry: local communities would find out too late to prevent the damaging projects. NEPA does not assure that local communities’ views will be honored, but it does provide them with several key rights. First, it requires a clear public statement of what important projects are being planned before the decision to proceed has become irreversible. Second, it requires the solicitation of public input that can highlight harmful effects that the project’s proponents might prefer to sweep under the rug. And third, the law requires consideration of less-disruptive alternatives rather than manipulated take-it-or-leave-it choices. Above all, NEPA ensures transparency and voice. Yet rather than embracing NEPA, we are seeing a steady onslaught of efforts to weaken or destroy it. Several bills, for example, propose expanding “categorical exclusions” from NEPA review; the timber industry successfully buried some in the recent omnibus appropriations bill. Agencies originally created categorical exclusions to speed approval of projects that could not plausibly have deleterious environmental consequences. No one needs to puzzle over the impact of mowing the grass on the National Mall or painting administrative buildings. Now, however, legislation is creating categorical exclusions to cover major projects that can devastate local communities and sensitive wildlife habitat. This has nothing to do with efficiency: it is simply allowing federal officials and industry to decide on projects without listening to local communities or small businesses… Rather than trying to silence local communities, we should be working to strengthen NEPA. Like the democratic debate it fosters, NEPA is not always pretty but it plays an indispensable part in our civic life.”

[The Hill, 4/27/18] https://goo.gl/MEo2Ta

How To Reform America’s Transportation System: “As a candidate for president, Donald Trump spoke often about the deplorable condition of the nation’s infrastructure—its highways, bridges, tunnels, airports, ports, and water systems—and as president he has pledged to “rebuild America.” The president’s infrastructure proposal now provides the specific measures and tools that his administration would use to renew and modernize the nation’s transportation infrastructure. The president’s proposal is nowhere near a complete legislative package. We are only at the beginning of a long and complicated legislative process, and typically it has been Congress, based on the initial proposals of an administration and almost always with broad bi-partisan support, that has developed the details of the transportation authorization legislation eventually enacted. Welcome as is the expansion of federal financing and incentives, there are limits to the effectiveness of such tools, in terms of the size and character of the nation’s transportation investment challenges. Financing, alone, will not “rebuild America.”  Not all states or metropolitan regions have authorized the use of public-private partnerships (PPPs) or have established the dedicated revenue streams that could support lending or provide adequate returns to private investors. Moreover, the greatest need for transportation investment is that related to bringing existing transportation facilities and assets to a state of good repair. Typically, such rehabilitation and capital maintenance programs do not generate the revenues that could service loans or could provide returns to investors. Instead, such “state-of-good-repair” programs generally require significant public funding… Often the most serious impediment to the timely and efficient delivery of a transportation project is the absence of community consensus about the need, scope, and siting of the project.   Often this opposition takes form under the National Environmental Policy Act (NEPA) and the environmental impact statement process, and the litigation that arises from it.  This is not a failure of the environmental regulatory process, but the result of a failure to engage the public successfully and early enough to avoid project delivery delays. Fifth and finally, an infrastructure package should account for the effects of climate change. Sea levels are rising, weather events are increasingly destructive, flooding is more frequent, and storm surges are more powerful. States and localities that use federal funding or financing to renew their transportation infrastructure and to undertake new capital projects should be required to construct such facilities and systems in the manner most resilient to these events.”

[American Action Forum, 4/30/18] https://goo.gl/XfYHGC

Forest Service unveils plan for Mendenhall Glacier tourism: “The U.S. Forest Service has unveiled a draft plan to deal with an increase in visitors at Alaska's Mendenhall Glacier. The Forest Service last week released the plan calling for a new 7,000-square-foot (650-square-meter) visitor facility, a boat and dock system to ferry visitors across Mendenhall Lake, new trails and a mobile visitor center near the glacier, the Juneau Empire reported . The Forest Service has yet to release the full plan, but said the objectives are to decrease crowding, enhance opportunities for locals, and "chase the ice," meaning increase opportunity for visitors to get to the glacier. The Cruise Line Industry Association said a record-setting number of over 1 million cruise visitors are expected in Juneau this year. About half of those visitors are expected to go to the glacier. Projections released earlier this year estimate a 200,000 visitor jump for Juneau in 2019, a 19 percent increase. Designers hope a new hub of a visitor center next to the main parking lot will help spread out the crowds. The idea is to create a natural flow of visitors to the new facility, where they'll get information about what they want to do, and from there, disperse. Corvus Design landscape architect Peter Briggs showed off the concept for the new visitor facility at the unveiling meeting on Thursday. The new center would be built where a pavilion next to the parking lot currently stands, Briggs said, an ideal location for visitors arriving by bus. Building the center in that area would entail tearing down the old pavilion. "The existing pavilion doesn't necessarily serve its ideal purpose and it's in this great real estate. So one of the ideas is that an existing visitor center would go where the pavilion is," Briggs said. Public input is being accepted for the next few weeks. The full plan will be posted afterward, and then the Forest Service will begin a National Environmental Policy Act review.”

[AP, 4/30/18] https://goo.gl/MELUd4

Lawsuit Targets Trump Oil, Gas Leases Threatening Sage Grouse in Five States: “Conservation groups filed a lawsuit today challenging Trump administration policies that gut protections for imperiled greater sage grouse and allow oil and gas leases on nearly 2 million acres of the birds’ prime habitat. Today’s suit, filed in U.S. District Court in Boise, says the Interior Department’s Bureau of Land Management violated the National Environmental Policy Act and Federal Lands Policy and Management Act when it approved eight massive oil and gas lease sales in Nevada, Utah, Montana, Wyoming and Idaho. Those leases were enabled by two Trump polices, one directive rolling back hard-won compromises to preserve dwindling sage-grouse populations across the West and another that cuts the public out of oil and gas planning on public lands. “Trump can’t ignore the law to fulfill the fossil fuel industry’s wish list,” said Michael Saul, a senior attorney at the Center for Biological Diversity. “There’s no scientific or legal support behind these policies, and no public support for them either. They’re clearly intended to make fossil fuel development the dominant use of public land, and that’s illegal.” This lawsuit also marks the first legal challenge to the Interior Department’s controversial January policy that slashed transparency, public participation and environmental reviews before oil and gas leases are auctioned. The policy, together with the massive leases in sage-grouse habitat, are part of Trump’s “energy dominance” agenda, intended to sweep aside environmental protections to speed fossil fuel development on public land. Under land-use plans adopted in 2015, the Interior Department is obligated to focus fracking and drilling leases outside of sage-grouse habitat. Those plans are intended to prevent the bird’s decline and preclude its protection under the Endangered Species Act. A BLM directive effectively eliminated those sage-grouse agreements. Today’s lawsuit targets oil and gas lease sales in Nevada, Utah, Wyoming, Idaho and Montana. “This is a battle for the American West, and we’re not going to stand idly by while the oil industry destroys our public lands, wildlife habitats and quality of life again,” said Erik Molvar of Western Watersheds Project. “The one thing the Obama administration got right, amid all the compromises in their sage-grouse plans, was to shift oil and gas leasing and development away from sage-grouse habitats, because you can’t destroy sage-grouse habitats if they’re never leased.” Sage-grouse success also benefits pronghorn, elk, golden eagle, native trout and nearly 200 other bird species. Over the past 200 years land conversion, oil and gas drilling, and livestock grazing have cut the grouse’s range in half, causing steady population declines. Under Zinke the BLM has ignored the 2015 policies, built into 98 federal resource-management plans in 10 states, and put nearly 2 million acres of habitat on the auction block ― more than 1.3 million acres in 2018 alone. Zinke vowed to undo the 2015 plans despite support from western states and scientists who helped the BLM write them.”

[Center for Biological Diversity, 4/30/18] https://goo.gl/5pC6C4

Udall wants Zinke to provide answers on Izembek road: “New Mexico Sen. Tom Udall (D) wants Interior Secretary Ryan Zinke to answer some questions about Zinke's decision earlier this year to sign a land exchange agreement between the Interior Department and an Alaskan tribal corporation. Udall wrote in a three-page letter to Zinke that he's troubled by the agreement authorizing conveyance to the King Cove Corp. of up to 500 acres of federal land needed to build the single-lane, nearly 12-mile-long gravel road through the Izembek National Wildlife Refuge. "The decision-making process appears to have been conducted without public input or congressional oversight, and raises a number of legal questions, and therefore I seek additional information about this proposed exchange [to] better understand your process and legal basis," the senator wrote. Those questions include: Why did Zinke reverse a decision that rejected the land exchange and road by former Interior Secretary Sally Jewell, following a four-year analysis of a land exchange proposal?; Who is going to pay an estimated $675,000 in annual maintenance fees for the road? It's not clear whether Zinke will respond with detailed information to Udall's questions. Udall's letter was shared with E&E News by representatives from Defenders of Wildlife, one of nine groups that in January filed a lawsuit in the U.S. District Court for the District of Alaska. The complaint says the land exchange agreement violates the Alaska National Interest Lands Conservation Act and National Environmental Policy Act.”

[E&E News, 4/30/18] https://goo.gl/kynRfP

Justin McCarthy

Digital Director, NEPA Campaign

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