The Interior Department Is Sidelining Environmental Justice: “In early September, the DOI quietly rescinded two policy memos that provided specific guidance on how to implement principles of environmental justice. The first memo, issued in 1995, instructed bureaus to look at impacts of proposed projects and, where necessary, to evaluate the environmental consequences on vulnerable communities or human health. The second memo, drafted two years later, addressed Interior’s responsibility to protect Native American trust resources and sacred sites on federal lands. In addition to rescinding the memos, the department has delayed publication of a manual on how to conduct environmental-justice analyses and has asked BLM employees to review environmental-justice policy in the context of an “energy dominance” agenda. These changes have taken place against the backdrop of an ongoing, sweeping overhaul of the National Environmental Policy Act, the landmark 1969 law that mandated environmental considerations in government planning. This administration, however, has largely viewed NEPA as an impediment to energy development. Last year, a DOI secretarial memo dramatically reduced the amount of time and space allocated for environmental reviews as well as public involvement in the process. At the same time, the administration is pursuing an aggressive strategy of energy development on public lands and deregulation of environmental protections that could adversely impact vulnerable populations…Rather than build on efforts to strengthen the policy, DOI appears to be undermining it. According to an internal e-mail from a high-level DOI adviser obtained by The Nation, the rollback of the environmental-justice memo “signals that the department and bureaus have more flexibility on implementing EJ policy under NEPA.” Without the memos BLM field offices may have more discretion as to whether they conduct any kind of environmental-justice analysis during environmental reviews of sensitive projects, such as oil- and gas-lease sales in New Mexico or drilling in the Arctic National Wildlife Refuge.”

[The Nation, 11/14/18] https://goo.gl/fFFDKT

Environmentalists file third lawsuit against Trump border wall: “Environmental groups filed another lawsuit challenging the Trump administration’s use of waivers to speed up construction of a border wall, this time in Texas. Three groups sued the Department of Homeland Security (DHS), a week after the agency waived environmental laws along a roughly 40-kilometre stretch of border in the Rio Grande Valley, which is the southernmost point of Texas. Lawsuits have been filed to try to stop construction in California and New Mexico. So far, no judges have stopped DHS from moving forward with construction, though a federal appeals court in California heard arguments in that state’s case in August. In Texas, the government wants to connect existing sections of fencing on river levees in Hidalgo County and to close other gaps in fencing in neighbouring Cameron County. It argues that more barriers are necessary to stop the flow of drugs and immigrants. Congress already funded construction in both areas, though it hasn’t yet provided the larger amounts of money President Donald Trump has requested for his signature campaign priority to build a wall along the U.S.-Mexico border. Environmental groups say DHS is wrongly using authority that it received in 2005 for specific projects to waive reviews under more than two dozen laws, including the Endangered Species Act, the Clean Water Act and the National Environmental Policy Act. Jean Su, a lawyer for the Center for Biological Diversity, argued that when the previous border fence was built, Congress directly gave DHS the authority to issue waivers. But that waiver authority was not meant to carry over automatically for future projects, she said. “It will be a longer process, but that process is a basic part of our democratic system and the protection of our environment,” Su said. Defenders of Wildlife and the Animal Legal Defense Fund joined the lawsuit, which was filed in Washington. Advocates warn that the government’s proposed construction would cut through the non-profit National Butterfly Center and local heritage sites.”

[AP, 11/14/18] https://goo.gl/UDRTEf

Idaho mulls scrubbing steelhead season: “The Idaho Fish and Game Commission could decide during its meeting today in Coeur d’Alene to shut down the steelhead fishing season Dec. 7 and not open the spring season. The move to close fishing for hatchery steelhead would be made in response to the threat of a lawsuit issued by a small cadre of fishing and conservation groups who believe this year’s return of protected wild steelhead is so low that fishing should be curtailed to guard against any incidental mortality. Wild Snake River steelhead are listed as threatened under the Endangered Species Act. While regulations require anglers to release any wild fish they catch, a tiny fraction of those released fish die from the experience. Last month the groups — including Idaho Rivers United, Friends of the Clearwater, the Conservation Angler, Snake River Water Keeper and the Wild Fish Conservancy — filed a 60-day notice of intent to sue Idaho Gov. C.L. “Butch” Otter, Idaho Fish and Game Director Virgil Moore and members of the Idaho Fish and Game Commission. That notice expires Dec. 7. Idaho’s Fisheries Management and Evaluation Plan gives the state cover under the ESA to incidentally harm a small percentage of protected wild steelhead during the course of its recreational steelhead fishery. That plan expired in 2009. The state submitted a new monitoring and evaluation plan the same year, but officials at Fisheries Division of the National Oceanic and Atmospheric Administration let it sit idle while working on other pressing issues. The federal agency released a draft of the plan last week and is now taking public comments on it while reviewing the plan and completing other necessary documentation under the ESA and the National Environmental Policy Act. That process could be completed and a plan approved late this winter or early next spring. But the lack of an approved plan leaves the state vulnerable to court challenge, even though federal fisheries officials are on record as saying fishing for hatchery steelhead poses little threat to protected wild fish. Officials in the department’s Fisheries Bureau have not yet made an official recommendation to the commission, but Jim Fredericks, chief of the bureau, said one will be made prior to the meeting. Earlier this week, Department Director Virgil Moore said he would opt for closing fishing rather than going to court…If the commission ends steelhead fishing for the rest of the year and into next spring, it would be the first time in decades Idaho hasn’t had a full season. Catch-and-release fishing would not be allowed under the closure. Fredericks said if steelhead fishing is closed, it would be to avoid a lawsuit and not as a conservation measure.”

[The Lewiston Tribune, 11/14/18] https://goo.gl/oMWmpc

A Judicial Keystone Kop: “More and more liberal federal judges are posing as the front line of the anti-Trump resistance and subjugating the law to their political preferences. Consider the Obama appointee who last week blocked the Trump Administration’s permit for the Keystone XL pipeline. The oil pipeline has already been stuck in regulatory quicksand for a decade. In 2008 TransCanada applied for a permit to move up to 830,000 barrels of bitumen crude per day from the Alberta oil sands to Gulf Coast refineries. The State Department under a 2004 executive order must approve cross-border projects to ensure they serve the “national interest.” Amid a drawn-out review, the Obama State Department issued five determinations that the pipeline would have no material impact on greenhouse gas emissions. Its final environmental impact statement in 2014 said bitumen would be extracted irrespective of the pipeline, and shipping the crude by rail or tanker instead would result in 28% to 42% greater CO2 emissions as well as more leaks. Barack Obama ignored those findings and offered Keystone as a sacrifice to the 2016 Paris climate agreement. The U.S. government must “prioritize actions that are not perceived as enabling further GHG emissions globally,” the Obama Administration concluded. TransCanada sued in federal court and under Nafta’s Chapter 11 investor-state arbitration, but it caught a break when Donald Trump was elected and his Administration granted the permit. Yet now it’s back to rolling the boulder uphill as environmentalists have sued. Their argument is that the Trump Administration violated the National Environmental Policy Act and Administrative Procedure Act by relying on the State Department’s factual record that Mr. Obama ignored. Ergo, Mr. Trump’s reversal of his predecessor’s arbitrary decision was arbitrary. Federal Judge Brian Morris agreed and has ordered the Trump Administration to conduct yet another environmental review. A new environmental impact statement could take another year or two to complete and will no doubt draw legal challenges. The earliest the Supreme Court would likely hear an appeal is 2020, at which point a Democratic President could be elected and issue another veto. Yet as TransCanada argued in its mooted federal lawsuit, the 2004 executive order does not require a National Environmental Policy Act review. The 2004 executive order on cross-border approvals may also infringe on Congress’s power over trade. Mr. Trump could fix TransCanada’s legal jam by rescinding the order. The lame-duck GOP Congress could vote to green-light the pipeline as Republicans did in 2015 before Mr. Obama’s veto. Congress and President Trump should use all of their constitutional powers to overrule this federal judge’s lawless interpretation of the law.”

[Wall Street Journal, 11/14/18] https://goo.gl/hPcQ2v

Keystone XL: "You have to be lucky all the time. We only have to be lucky once”: “We saw that, yet again, on Nov. 8, when Montana federal judge Brian Morris quashed the presidential permit for the Keystone XL pipeline… The pipeline opponents are following the same strategy – flood the courts with every single legal argument under the sun, and you only need one to stick to kill the project. Judge Morris found a few things that stuck. Morris apparently came to the conclusion that governments can’t change their mind. That was one of the issues in the 54-page ruling I spent the better part of an hour reading through. Particular attention in the judgement was paid to the fact that climate change was cited as a reason to deny the presidential permit in 2015, but that the new 2017 record of decision (ROD) does not talk about climate change. What the judgement does not discuss, however, is that there was a change in administration during that time, and that this was a campaign item. In particular, I just happened to be the guy to ask Trump if he would approve the Keystone XL project. He said he would, and upon election, he did, and granted a permit for it. And the people, by electing him, had in fact changed their mind. But that’s not good enough for the judge. He ruled that the National Environmental Policy Act and Administrative Procedure Act “require a detailed justification for reversing course and adopting a policy that ‘rests upon factual findings that contradict those which underlay its prior policy.’”… The judge found that the cumulative climate impacts of Keystone XL and Alberta Clipper should be considered. But nowhere does he bring up the cumulative climate impacts of North Dakota adding 1 million barrels per day in production since the time Alberta Clipper went into service, or Texas adding 1.9 million barrels per day in the same time frame. Nor does the judgement include mention of any of the pipelines, like Dakota Access Pipeline (DAPL), that haul this oil. It’s only Canadian oil production, and these two new Canadian pipelines, that need to be considered. Some other items in the judgement Morris, quite fairly, ignored. The plaintiffs threw everything but the kitchen sink into this lawsuit. Of particular note are endangered species. Not only did they want the State Department to consider those species south of the 49th parallel, but north of it as well Thankfully, we get to be our own country. He ruled, “The Court will defer to the government of Canada’s environmental review of Keystone’s impacts within its own jurisdiction.’”

[Estevan Mercury, 11/14/18] https://goo.gl/rRdW7L

Environmental activists are turning to the courts to block pipelines: “Environmental activists are successfully using the courts to stymie the Trump administration’s “energy dominance” agenda, especially oil and natural gas pipelines, with the latest example being a federal judge last week blocking the long-disputed Keystone XL pipeline. “This is emblematic of the very orchestrated effort being made to stop energy infrastructure of all kinds,” Don Santa, the president and CEO of the Interstate Natural Gas Association of America, told the Washington Examiner. “Pipeline opponents are seizing on every possible opportunity to throw a monkey wrench into the gears of getting these facilities approved." But opponents say courts should be giving greater scrutiny to pipeline approvals because such projects lock in a dependence on fossil fuels, due to their long lifespan. “The real element that is changing is not the legal issue around abiding by review processes, but the increasing burden of proof these projects face to show they are environmentally sound,” Anthony Swift, the director of the National Resources Defense Council’s Canada program, told the Washington Examiner. Environmental activists scored a win last week when U.S. District Court Judge Brian Morris blocked the construction of the $8 billion Keystone XL pipeline, which President Trump had approved in one of his first actions as president. Morris, an Obama appointee to the District Court of Montana, ruled late Thursday night that the administration's environmental analysis fell short, and ordered the pipeline to be halted until the federal government completes further reviews. The judge said the Trump administration had not provided a “reasoned explanation” for reversing former President Barack Obama's rejection of the pipeline's permit. Morris also said the Trump administration “simply discarded” the effect the pipeline would have on climate change. The 1,179-mile Keystone XL pipeline would send 800,000 barrels a day of oil from Canada’s Alberta oil sands to Steele City, Neb., and then on to refineries along the Gulf Coast. But it has been challenged by environmental advocates worried about spills and climate change. Environmental groups had sued both TransCanada, the company building the pipeline, and the State Department over the pipeline's approval… Morris’ decision blocking the pipeline, which Trump called “political” and a “disgrace”, follows a common theme that has haunted his goals of rolling back Obama-era environmental regulations and more quickly building energy infrastructure projects… The administration has also proposed changes in how the government conducts the reviews, including streamlining the National Environmental Policy Act’s requirements and potential changes to the Clean Water and Clean Air acts. Trump aims to reduce the time a state has to issue water permits required under the Clean Water Act to build interstate natural gas pipelines. Environmental officials in states such as New York have used that provision to halt pipeline projects, to the consternation of the energy industry. But these changes require cooperation by Democrats in Congress, who say “streamlining” would harm protections for natural habitat and endangered species.’

[Washington Examiner, 11/14/18] https://goo.gl/7jyY9b

California’s Paradise Lost: “One problem with President Trump’s bullying rhetorical style is that he gives his critics reason to ignore him even when he has a point. Consider his weekend threat to yank federal funds from California amid its horrific wildfires. Three fires are raging across the state, killing at least 31 people and scorching more than 200,000 acres, including the town of Paradise in the Sierra Nevada foothills. “There is no reason for these massive, deadly and costly forest fires in California except that forest management is so poor,” Mr. Trump tweeted. “Billions of dollars are given each year, with so many lives lost, all because of gross mismanagement of the forests. Remedy now, or no more Fed payments!” Mr. Trump has no empathy gene even if he is right about forestry ills. Relentless winds and low air moisture make California’s fires harder to contain while development is putting more people in danger. But also fueling the fires is an overgrown government bureaucracy that frustrates proper forest management. About 57% of California forestland is owned by the federal government while most of the rest is private land regulated by the state. Nearly 130 million trees died in California between 2010 and 2017 due to drought and a bark beetle infestation. Dense forests put trees at greater risk for parasitic infection and enable fires to spread faster. When dead trees fall, they add more combustible fuel. Once upon a time the U.S. Forest Service’s mission was to actively manage the federal government’s resources. Yet numerous laws over the last 50 years, including the Endangered Species Act and National Environmental Policy Act, have hampered tree-clearing, controlled burns and timber sales on federal land. California also restricts timber harvesting and requires myriad permits and environmental-impact statements to prune overgrown forests. As the state Legislative Analyst’s Office (LAO) dryly noted in April, “project proponents seeking to conduct activities to improve the health of California’s forests indicate that in some cases, state regulatory requirements can be excessively duplicative, lengthy, and costly.”… he LAO recommended that California prune its regulations, facilitate timber sales and ease permitting for burning biomass. Environmentalists oppose this, but one irony is that destruction from fires imperils species far more than does regulated tree-clearing. Thinning forests could also save Californians billions of gallons of water each year, according to an April study by the National Science Foundation. The good news is that the Trump Administration is expanding timber sales on federal land and this year’s harvest will be the biggest in two decades. Restoring California’s forests to health could take years, but the lesson of these fires is that the feds and state should drop their political blinders and do it.”

[The Wall Street Journal, 11/14/18] https://goo.gl/X9Rgk9

Dems demand rationale for Trump scrapping Minnesota Withdrawal: “House Democrats want the documents that made the case for the Trump administration to abandon proposed mining limits in northern Minnesota. Rep. Betty McCollum (D-Minn.), a top appropriator, and House Natural Resources Committee ranking member Raúl Grijalva (D-Ariz.) have yet to receive responses from Interior Secretary Ryan Zinke or Agriculture Secretary Sonny Perdue to their Nov. 5 letter asking for materials related to the cancellation of a 234,328-acre mineral withdrawal near the Boundary Waters Canoe Area Wilderness. The pair yesterday released a new missive to the administration and asked for a response by Monday. In 2016, the Obama administration proposed the Rainy River Watershed withdrawal as Chilean mining company Antofagasta PLC looked to build the Twin Metals copper-nickel project mine near Ely, Minn. Under President Trump, the Forest Service first downgraded the National Environmental Policy Act (NEPA) review from an environmental impact statement to an environmental assessment. Then, in September, the Forest Service halted that EA, and the Bureau of Land Management suspended the withdrawal application. After 15 months of review and public meetings, Forest Service spokesman Brady Smith said: "There was not any need to complete the process on an environmental assessment based on what we learned." McCollum and Grijalva said the conclusion disregards a series of reports and comments about the risks of sulfide-ore mining submitted by scientists including University of Minnesota professor Daniel Engstrom and Harvard University economist James Stock, who compiled an economic impact analysis. "A decision based on the claim that there is 'no new scientific information' should have supported the mineral withdrawal, not its cancellation," the Democrats wrote. The letter argues the Forest Service and BLM actions diverge from not only the normal withdrawal consideration process under the Federal Land Policy and Management Act but Trump-era decisions made on mineral withdrawals in Montana and Washington. Zinke imposed a 30,370-acre mining ban outside Yellowstone National Park based on a recommendation from the Forest Service, which also recommended the secretary block mining on 340,079 acres of the Methow Valley northeast of Seattle.

[E&E News, 11/14/18] https://goo.gl/B7ZCKH

Justin McCarthy

Communications Director, NEPA Campaign

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