White House extends comment period for NEPA overhaul: “The White House Council on Environmental
Quality will give the public more time to comment on its proposed update to guidance for following one of the nation's bedrock environmental laws. The public will now have until Aug. 20 — an additional 30 days — to weigh in on the advanced notice of proposed
rulemaking to rewrite CEQ's National Environmental Policy Act regulations. A notice of the extension will appear in the Federal Register tomorrow. CEQ's regulations underpin environmental permitting for the entire federal government, and the agency's proposal
to update them has already garnered considerable controversy. When CEQ issued the initial advanced notice last month, it gave the public 30 days to comment on a list of broad questions, including whether some of most litigated terms in the regulations —
"major federal action," "cumulative impact" and "significantly," among others — should be redefined. That immediately prompted backlash from environmentalists, who said the comment period was far too short. More than 350 green groups formally asked for an
additional 90 days the following week. When a company wants to build a pipeline, road or other infrastructure, federal agencies are required by the National Environmental Policy Act (NEPA) to review the project's environmental impact. But how does NEPA work
and why is it controversial? E&E News Explains provides a simple overview. Pamela King/E&E News Raul Garcia, legislative counsel at Earthjustice, said the extension is "very welcomed," even if it's not as long as they had hoped for. "I think not only the 30
extra days, but also the fact that they're going to be accepting comments by mail is important," Garcia said. A CEQ spokesman said the agency "received a number of requests to extend public comment." Many are a copied form letter asking for more time and opposing
efforts to "in anyway rollback the existing elements of the law as it currently stands." Others make similar requests in less standard wording. One commenter wrote to oppose loosening the regulations, saying that "ignoring the public isn't democracy. These
are not the times to piss people off." Either way, environmental groups are plotting out a campaign to oppose any changes to NEPA, Garcia said.”
[E&E News 7/12/18]
https://goo.gl/HEDwR7
House panel bars amendments to water bill, allows 4 for regs measure: “The House Rules Committee
advanced two bills over stern objections from the committee's ranking Democrat, including one that would authorize the Interior Department to transfer ownership of some major reclamation projects to nonfederal organizations, like municipal or tribal governments.
The Rules panel advanced Colorado Republican Rep. Doug Lamborn's H.R. 3281, by a 6-3 vote along party lines, for floor action later this week under a closed rule that will not allow any amendments to be considered. The bill would allow Interior to transfer
ownership of some Bureau of Reclamation projects, such as dams or buildings, to municipal or tribal governments, water users associations, or power agencies. Lamborn said that by doing so, badly needed major federal water infrastructure repair or expansion
efforts could be done more efficiently by nonfederal partners. "Transferring these low-hanging fruit projects, or parts of them, will allow water districts to leverage nonfederal financing through ownership equity and would decrease federal liability," Lamborn
said. The bill has drawn the support of Bureau of Reclamation Chief of Staff James Hess. But Rep. Jim McGovern (D-Mass.), ranking member on Rules, dismissed those arguments, saying the bill is little more than "a de facto privatization of federal water infrastructure
across the western United States." McGovern added: "The secretary of Interior could literally give away ownership of dams, canals or hydroelectric power plants. There's no requirement that federal taxpayers even be compensated. Businesses get the benefits,
they get the windfall, and the public gets left behind." In advancing Lamborn's bill, the committee rejected without debate a proposed amendment from Rep. Juan Vargas (D-Calif.) that called for removing a section of the bill allowing the Interior secretary
to issue categorical exclusions that waive environmental analysis requirements under the National Environmental Policy Act for transferred projects in certain circumstances. Though Vargas' amendment was not discussed at the hearing, Lamborn took issue with
anyone suggesting the bill would cut corners. "Despite what some may suggest, this bill does not exempt any action from NEPA or any other environmental mandates," he said. "In fact, it's a condition under the bill that any recipient of the benefit of the bill
in a title transfer has to continue complying with all applicable federal, state and local laws and regulations.’”
[E&E News, 7/12/18]
https://goo.gl/mbHpju
D.C. Circuit Sinks FERC Hydro License for Failure to Adequately Consider Past Environmental Harm:
“Last Friday, the D.C. Circuit torpedoed a hydroelectric license issued in 2013 to Alabama Power Company because the Federal Energy Regulatory Commission (FERC) and the U.S. Fish and Wildlife Service (USFWS) “declined to factor in the decades of environmental
damage already wrought by exploitation of the waterway for power generation and that damage’s continuing ecological effects.” In doing so, the court rejected FERC’s attempt to follow its longstanding practice of limiting environmental review of past impacts
by using existing conditions and operations as the environmental baseline. The decision—American Rivers v. FERC—uses unusually sharp language to chastise FERC and USFWS for sloppy analysis, relying on weak or non-existent data, and failing to properly explain
their reasoning. But it remains to be seen how far this case will shift the law regarding the use of environmental baselines under the Federal Power Act (FPA), the National Environmental Policy Act (NEPA), and the Endangered Species Act (ESA). Are the shortcomings
in FERC’s analysis easily fixable on remand, or does this represent a fundamental shift in how the courts will view the relicensing of dams constructed long before enactment of the environmental safeguards of the 1970s and 80s?...
First, the court rejected the USFWS’ biological opinion (BiOp, a requirement under the ESA) because the agency’s analysis excluded historic impacts and thereby departed irrationally from the
agency’s own ESA handbook and regulations. Next the court rejected FERC’s NEPA analysis, which relied heavily on the BiOp and was “fatally infected” by the failure to consider “the damage already wrought by the construction of dams . . . .” Finally, the court
held that the analytical failures under NEPA and the ESA also violated FERC’s obligations under the FPA itself. Surprisingly, the D.C. Circuit’s scathing analysis did not discuss either of the two circuit court opinions (American Rivers, 9th Cir. 1999, and
Conservation Law Foundation, D.C. Cir. 2000) that FERC relied on in justifying its exclusion of past impacts from the baseline. Nor had FERC, in the License Order, discussed the primary circuit court opinion (National Wildlife Federation, 9th Cir. 2008) on
which the D.C. Circuit relied in its analysis of the Alabama Power baseline.9 As a result, determining how the new American Rivers decision changes the legal landscape created by the three preceding cases will require analysis by future courts.”
[Lexology, 7/11/18]
https://goo.gl/3AC8VS
Feds ask judge to muzzle scientific testimony at Rocky Flats hearing: “If the U.S. Department
of Justice (DOJ) has its way, the director of Jefferson County Public Health, a nuclear forensics researcher, an emeritus professor of biology, a meteorologist and a toxicology expert will be barred from testifying at a July 17 hearing in the U.S. District
Court in Denver over the future of Rocky Flats National Wildlife Refuge — 5,237 acres of grasslands surrounding the former nuclear weapons facility and Superfund site 10 miles south of Boulder. At Tuesday’s hearing, a federal judge will decide whether or not
to grant a preliminary injunction to a coalition of local environmental groups — Rocky Mountain Peace & Justice Center, Candelas Glows/Rocky Flats Glows, Rocky Flats Right to Know, Rocky Flats Neighborhood Association, and Environmental Information Network
— seeking to block construction of 20 miles of recreation trails and a multi-million dollar visitor center inside the Refuge, due to concerns with plutonium contamination. Federal attorneys representing the defendants — who include Acting Director of U.S.
Fish and Wildlife Service (USFWS) Greg Sheehan, Rocky Flats National Wildlife Refuge Manager David Lucas and Secretary of the Interior Ryan Zinke — allege that the testimony of the plaintiffs’ scientists goes beyond the scope of this particular hearing and
are “improper ‘expert witnesses.’”…
Plaintiffs hope to prevent USFWS from breaking ground as early as this summer while the Court mulls over the former’s legal complaint filed in May alleging that the federal agency (along with U.S. Department of Transportation) violated the National Environmental
Policy Act (NEPA) in moving forward with the proposal. If the plaintiffs prove their case, USFWS would have to go back to the drawing board, drafting a detailed Environmental Impact Statement and opening the planning process to public comment. From 1952-1989,
Rocky Flats manufactured an estimated 70,000 plutonium “triggers” for nearly all U.S. nuclear weapons. The facility shut down following a raid from the Federal Bureau of Investigation (FBI) and Environmental Protection Agency (EPA) for environmental crimes,
and underwent a 10-year, $7 billion cleanup, ending in 2006. During the facility’s operation, plutonium and other radioactive and non-radioactive toxics seeped into the soil and migrated onto Refuge lands via high winds, erosion, surface water runoff and possibly
even routine operations.”
[Boulder Weekly, 7/12/18]
https://goo.gl/zQjHuz
Ninth Circuit to consider oversight for “predator derby” hunting competitions: “In an Idaho
forest, the Girls Scouts need a permit to hold a camping event. But the government says no permit – or the accompanying oversight – is needed for a weekend-long “predator derby” in which hundreds compete to kill wolves, coyotes and weasels. On Wednesday, the
Ninth Circuit heard arguments about whether to change that. An anti-wolf group that calls itself Idaho for Wildlife held two two-day events it publicized as “predator derbies” outside of Salmon, Idaho, in December 2013 and January 2015. Hunters didn’t kill
any wolves on either weekend, but they still competed for prizes based on who killed the most coyotes, skunks, weasels, jackrabbits, raccoons and starlings. Before holding the second hunting competition, Idaho for Wildlife applied for a five-year permit to
hold its event for up to 250 participants on private land and federal or state land, including land managed by the Forest Service. Charles Mark, forest supervisor for Salmon-Challis National Forest, told the group it didn’t need a permit, since the event was
not held solely on Forest Service land and because Idaho for Wildlife did not charge a fee for hunters to participate, nor did it offer equipment or services to the hunters. Chief U.S. Magistrate Judge Ronald E. Bush tossed the lawsuit in March 2017. He found
that Wildearth Guardians had standing to pursue its claims, but the Forest Service was within its rights to interpret its own regulation. Mark’s decision “had a reasonable basis as its underpinning,” according to Bush. “The court may not overturn a decision
simply because it disagrees with the decision or with the agency’s conclusions about environmental impacts,” Bush added. Wildearth appealed, and on Wednesday a panel for the Ninth Circuit consisting of U.S. Circuit Judges Kim McLane Wardlaw and John B. Owens
and Senior U.S. District Judge Joan Humphrey Lefkow heard arguments. Appearing on behalf of Wildearth Guardians, Andrea Santarsiere with the Center for Biological Diversity told the panel that requiring a permit would minimize public danger by directing the
hunt away from other planned events, like family reunions or dog shows. The Forest Service could also require the group to post signs for the derby. Currently, Santarsiere said, the Forest Service requires public notice for Girl Scouts camping events, but
not for the Predator Derby…
Santarsiere suggested the Forest Service might have decided not to require a permit for the derby so it wouldn’t have to issue an environmental assessment, since regulations under the Council on Environmental Quality state that actions approved by a permit
“generally do constitute major federal action requiring compliance with NEPA.” Under the Forest Service’s own regulations, Santarsiere said the agency is required to comply with NEPA (the National Environmental Policy Act) when issuing a special use permit
– which would force the agency to assess the event’s environmental impact. Should the appeals court find for the government in this case, group hunting competitions like the predator derby could proliferate, Santarsiere noted.”
[Missoula Current, 7/12/18]
https://goo.gl/Jz2r6f
Justin McCarthy
Communications Director, NEPA Campaign
The Partnership Project
1101 Connecticut Ave NW, 10th 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, including Sierra Club, Defenders
of Wildlife, League of Conservation Voters, Earthjustice, and Natural Resources Defense Council.