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FERC Can’t Just Check the Climate Box

Federal law requires that the Federal Energy Regulatory Commission (FERC) take a “hard look” at a proposed energy’s project’s effect on climate change. In last week’s order approving the Calcasieu Pass liquefied natural gas (LNG) export facility in Cameron Parish, Louisiana, FERC adopted what it called a “new approach” for consideration of direct greenhouse gas emissions from LNG facilities.”

FERC’s “new approach”—applied over Commissioner Richard Glick’s dissent—falls far short of what is required under both the Natural Gas Act and the National Environmental Policy Act (NEPA). The order is unreasoned, arbitrary, and fails to include a robust public interest analysis. It reads as though FERC is trying to check the climate box and move on.

The legal history behind FERC’s consideration of greenhouse gases is complicated. But FERC’s statutory duty for reviewing LNG facilities is clear: FERC must determine both whether the project is consistent with the public interest and consider the direct and cumulative greenhouse gas effects caused by an LNG facility.

In the Calcasieu Pass order, FERC does neither.
How we got here

There is a “tangled web of regulatory processes” involved in permitting LNG facilities. FERC reviews the siting and construction of LNG terminals. It does not, however, approve the exporting (or importing) of gas via those terminals; that decision rests exclusively with the Department of Energy. This is different from interstate pipelines, where FERC determines the siting and construction of the pipeline, as well as whether gas can flow inside it.

This division of labor affects how NEPA is applied to LNG facilities. NEPA requires agencies to consider the direct, indirect, and cumulative effects caused by a proposed action, including its effects on greenhouse gas emissions (see here for an explanation of direct, indirect, and cumulative effects). The key word here is “caused.”

In the pipeline context, caselaw establishes that, at least when the end-users are known, downstream greenhouse gas emissions are an indirect effect of FERC’s action, because FERC decides whether the gas arrives at the end-user to be burned. That means that FERC must consider these effects in its pipeline NEPA analyses.

Conversely, in the LNG terminal context, caselaw establishes that downstream greenhouse emissions are not indirect effects that FERC must consider under NEPA, because FERC only approves the LNG terminal and not the exporting or importing of the gas. Since DOE is the agency that decides whether the gas is imported or exported, DOE enables its use.

For both pipelines and LNG terminals, FERC must, however, consider the direct and cumulative effects of its actions. In the LNG terminal context, this means that FERC must consider the greenhouse gases caused by the construction and operation of the LNG terminal itself, and the cumulative impacts that the construction and operation of the LNG terminal itself has when added to other past, present or likely future actions in the same region (i.e., other nearby LNG terminals). In some cases, the cumulative effects can be the “straw that breaks the camel’s back” in determining the environmental impact of a project.

Simply disclosing the pure statistics isn’t enough. FERC must also determine the “significance”—a term of art within NEPA—of these effects. This is because numbers, in and of themselves, do not answer whether something is a significant environmental impact or not. For example, if a project were to emit a lot of oxygen into the atmosphere, that presumably would be less significant than if it were to emit a small amount of methane.
How FERC failed

The lead opinion of the Calcasieu Pass order—joined by FERC Chairman Neil Chatterjee and Commissioner Bernard McNamee—asserts that the construction and operation of the Calcasieu Pass LNG facility could directly increase annual emissions of carbon dioxide equivalent (CO2e) by nearly 4 million metric tons. It then states that such a result would increase overall U.S. CO2e emissions by 0.07 percent.

Is this a significant amount? The order never says, nor does it explain what this number is even being used to support. Instead, the order simply discloses this statistic, and then backpedals with the blanket statement that “there are no national targets to use as a benchmark for comparison,” citing the Trump administration’s intention to repeal the Clean Power Plan and withdraw from the Paris Agreement. In other words, a proposed change in policy by the current administration seemingly drove FERC’s conclusion that it couldn’t assess significance.

As it is, the 0.07 percent figure reads as an aside, or what lawyers call dicta: material, that, while interesting, is not being used to decide anything.

After citing the 0.07 percent figure, the order acknowledges unequivocally that construction and operation of the LNG terminal “will contribute incrementally to climate change.” Further, FERC staff’s Environmental Impact Statement for the project makes the connection between greenhouse gas emissions and climate change, stating that climate change is “driven by accumulation of [greenhouse gases] in the atmosphere through combustion of fossil fuels … combined with agriculture and clearing of forests.” However, FERC concludes that it cannot determine whether the “project’s contribution to climate change would be significant” due to the alleged lack of an accepted methodology for doing so. This is the end of the order’s climate change inquiry. The order doesn’t even attempt to address cumulative greenhouse gas effects. While McNamee said that FERC gave the project’s climate impacts “thoughtful consideration,” it’s hard to tell from the order itself.

Here’s where things get weird: after concluding that FERC cannot assess the significance of these acknowledged greenhouse gas emissions, Chatterjee and McNamee declare that “all impacts from construction and operation of the facilities will be reduced to less than significant levels” if the terminal is built in accordance with the order. (Emphasis added.)

This makes no sense: If FERC says that it cannot determine the significance of the project’s direct greenhouse gas emissions, how can FERC know that they’ll be reduced to less than significant levels?

This inconsistency suggests one of two things. Either (1) FERC is making a major logical misstep; or (2) FERC did, in fact, determine that the project’s greenhouse gas emissions were insignificant, without explaining its method for doing so. This latter theory is strengthened by FERC’s declaration that it used a “new approach” for evaluating the project’s greenhouse gas emissions.

What was the new approach? The inclusion of the 0.07 percent figure? Because, if so, that’s a big problem for FERC, since it’s claimed in the past that because it’s “not aware of a widely accepted standard … to ascribe significance,” it would be arbitrary to pick one without some level of scientific acceptance or explanation. In fact, in the often-cited Sabal Trail case, the D.C. Circuit ordered FERC to “either quantify and consider the project’s downstream carbon emissions or explain in more detail why it cannot do so.” In response, FERC stated that it could not determine significance due to the alleged lack of an established method for doing so. If FERC is now making a significance determination based on the project’s impact on national emissions, it needs to disclose that and explain how it did so. Failing to do so is arbitrary and capricious under NEPA.
Time’s up

FERC has been waffling on how to consider a project’s climate change effects for years. As Glick wrote in his dissent, “no one benefits from the Commission’s refusal to take climate change seriously.” FERC needs to stop trying to just check a box and instead adopt a robust analysis.

 

Gillian Giannetti is an attorney with the Natural Resources Defense Council (NRDC) focusing on energy issues at the Federal Energy Regulatory Commission and the U.S. Department of Energy.

 

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Improving Infrastructure to Benefit Communities—Without Harming the Environment

Improving and upgrading U.S. roads, bridges, and transportation networks; energy production and transmission systems; and other elements of human-made infrastructure is long overdue. As the new Congress begins its bipartisan, bicameral effort to pass an infrastructure bill, it’s important that it not come at a cost to the natural resources that benefit society. Instead, policymakers should view the infrastructure package as an opportunity to protect bedrock conservation laws and reinvest in America’s natural resource infrastructure.

Parks, forests, and public lands are not only an essential part of the American landscape—they are also foundational to its economy and well-being. They clean our water and air, and they buffer against the effects of climate change by sequestering carbon and mitigating natural disasters. For these reasons, any infrastructure proposals must be managed with natural resources’ short- and long-term benefits in mind.
Below are three ways that Congress can structure the infrastructure package to benefit people and foster a healthy and resilient environment.

1. Don’t allow infrastructure legislation to undermine bedrock environmental laws
For decades, a framework for weighing the effects of growth and development on the environment and natural resources has protected communities from potential harm. Bedrock environmental laws—such as the National Environmental Policy Act (NEPA), the Clean Water Act, the Clean Air Act, and the Endangered Species Act (ESA)—require project proponents to analyze development impacts to ensure that projects proceed carefully and modify, avoid, or halt actions that could harm the air, water, or wildlife resources. In essence, this framework protects local communities and ensures that the United States invests in less harmful projects.
It is important that these bedrock laws not be circumvented or modified. Despite calls for so-called streamlining and regulatory efficiency, these environmental laws are neither costly nor time-consuming. For example, research on consultations under the ESA—which ensures that projects do not adversely threaten or endanger species of plants and animals—revealed that they do not burden development and are generally completed within weeks.

2. Support measures that advance environmentally sound infrastructure development
Bedrock environmental laws aren’t the only policies that can make infrastructure more environmentally sound. Other tools, including some that the Trump administration has rolled back, can help offset the effects of development and, in some cases, draw private investment into conservation. One such mechanism, known as mitigation, requires developers to first try to avoid damage to the environment. When damages are unavoidable, they may invest in habitat restoration to minimize or compensate for the project’s environmental effects. Originally used to stem the loss of wetlands and streams to development, mitigation projects are now major drivers of the $9.5 billion restoration economy.
Under former President Barack Obama, the U.S. Department of the Interior (DOI) detailed how mitigation can be used to manage public lands under the department’s jurisdiction to avoid, minimize, and compensate for project impacts. This gave project proponents and managers space to improve project implementation on public lands for the benefit of resource users and the environment.
Recently, however, the DOI rescinded the requirement to mitigate projects’ effects on public lands. As a result, project proponents, land managers, mitigation providers, and concerned citizens face the prospect of more uncertainty and controversy regarding project impacts on natural resources. This policy should be reinstated both to prevent conflict over projects and ensure that projects proceed in a manner that avoids, minimizes, or offsets their environmental effects.
To further efforts to mitigate damage to wildlife habitat and natural resources where development is planned, new technologies—including satellite data, geospatial mapping, and artificial intelligence—should be used to identify potential conflicts during infrastructure projects’ design phase. Project designers can use this information to site projects where conflicts are minimized or avoided. This approach has been used in the West to identify priority habitat and potential oil and gas production areas as a part of the DOI’s efforts to conserve the greater sage-grouse. This work demonstrated that energy development could proceed across much of the bird’s range without threatening the species’ existence—a valuable lesson in supporting smart development through science and technology.

3. Include funding to strengthen America’s natural infrastructure
The United States’ natural landscapes and ecosystems—including forests, rangelands, wetlands, and coastlines—represent an important part of the natural infrastructure that is as essential to the health of the nation as roads, bridges, and other human-made infrastructure projects. But they lack support relative to their value; there is a backlog of natural resource projects designed to protect endangered species habitat and improve the health and resilience of the nation’s ecosystems. Policymakers must invest in the contributions these natural assets make to communities and economies in order to ensure their future and prepare for the effects of a changing climate.
For example, the U.S. Forest Service estimates that 180 million people access their drinking water from national forests. More than 5 million of these people live in communities served by small- and medium-sized utilities that rely on surface water for their drinking water. At a time when climate-driven droughts and megafires are more common, these communities will need support to protect both homes and water supplies. And in urban areas, investments in natural infrastructure—such as parks and green spaces as well as dunes and wetlands—can help increase cities’ resilience to climate change as well as improve the health, safety, and quality of life of urban residents.
As Congress builds its package of infrastructure investments, members should focus on opportunities to benefit urban and rural communities, commerce, and the environment through sound policy and strong investments. Policymakers should also be aware that the legal and regulatory infrastructure that exists today does not interfere with improving the country’s infrastructure. To the contrary, lessons learned over the past 50 years illustrate that Americans will be better off because of these smart policies that protect communities and improve our air, water, wildlife, and natural resources.

This article was originally published by the Center for American Progress (CAP). About the author: Jim Lyons is a senior fellow at CAP.

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5G and the FCC: 10 Reasons Why You Should Care

As an environmental lawyer for over 25 years now, I have become intimately familiar with the workings of the Environmental Protection Agency and the Department of the Interior. I didn’t have occasion to watch what was happening across town at the Federal Communications Commission (FCC). Now I do. Here are ten reasons why you might want to also. 

1. Created in 1934, the FCC regulates all interstate communications—both wired and wireless—as well as international communications originating or terminating in the United States. In the words of the Telecommunications Act of 1934, the FCC was established to provide “to all the people of the United States, without discrimination . . . a rapid, efficient, Nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges.” 47 U.S.C. § 151. The law requires the FCC to serve the public interest.

2. Wireless communication touches every aspect of life. Smart phones are used by billions of people across the globe. As volume of data increases and delay decreases, wireless service is expanding beyond person-to-person communication. The possibility of the “Internet of Things” combined with Artificial Intelligence will impact every aspect of human life including transportation, education and health care.

3. The next generation of wireless technology—5G—is dramatically different from previous versions. Telecommunication is possible through use of the electromagnetic spectrum.

4. Five Commissioners sit on the FCC. The current Chairman Ajit Pai is pursuing an aggressive deregulatory agenda. He is joined by four other Commissioners—Michael O’Reilly, Brendan Carr, Jessica Rosenworcel and Geoffrey Starks. The positions each takes on issues ranging from net neutrality to health standards will shape the development and impacts of wireless technology.

5. In December 2017, the FCC eliminated “net neutrality” rules for broadband. These rules prohibit websites from blocking or throttling traffic, or from selling off “lanes” of traffic that will advantage some content players and disadvantage others. Over 50 parties including 22 states and the District of Columbia have opposed rescission of the rules in court. The D.C. Circuit Court of Appeals held oral argument in the case on February 1, 2019.

6. In March 2018, the FCC eliminated environmental and historical review for siting certain cell towers and other wireless facilities (FCC Order 18-30). Despite the license needed to provide wireless services, the FCC determined that there was no federal role in the construction of facilities needed to provide these services. In addition to NRDC, 19 tribes have challenged the FCC’s action along with the National Association of Tribal Historic Preservation Officers and the National Trust for Historic Preservation. The D.C. Circuit Court of Appeals is scheduled to hear oral argument in the case on March 15, 2019.

7. In Order 18-30, the FCC restricted fees tribes charge Sprint and other telecom companies for reviewing the impacts on historic and cultural resources.

8. In September 2018, the FCC restricted fees cities charge Sprint and other telecom companies for siting towers and other wireless infrastructure in their communities. (FCC Order 18-133). Several lawsuits challenging the FCC’s action have been consolidated before the Ninth Circuit Court of Appeals. (Case No. 19-70146)

9. In addition to restricting fees that cities can charge for building new wireless networks, Order 18-133 limited the time allowed for review of the proposed construction. The FCC imposed a so-called “shot clock” on cities and towns. If the local government has not acted within as few as 60 days on a construction permit, the project is deemed approved.

10. While the FCC has limited the review by others, the Commission at the same time has refused to update its own health and environmental standards. The Commission’s standards date from the 1990’s. In 2012, the General Accountability Office found that the existing standards may not reflect current knowledge and recommended that the FCC formally reassess its standards. The FCC’s standards address only one aspect of potential harm from electromagnetic radiation—heat. The current standards do not address other ways in which exposure to increasing electromagnetic radiation from wireless communications can harm human health, as well as the natural systems around us on which all life depends.

The U.S. National Toxicology Program conducted rodent studies to help clarify the potential health hazards of radio frequency radiation (RFR). According to my NRDC colleague, Dr. Jennifer Sass, the results (which have been subjected to expert peer review and public comment) show that long-term high exposures to RFR used by 2G and 3G cell phones are associated with an elevated risk of cancer, particularly in heart and brain cells (NTP 2018). This is consistent with the previous hazard assessment of the World Health Organization’s cancer experts, which concluded that there was a possible link (Group 2B) to brain cancer in people with RFR exposures (IARC 2011). Both government agencies warn that the public should take pragmatic steps to reduce exposures (IARC Director, May 2011; NTP Fact Sheet, Nov 2018).

 
Sharon Bucino is the Senior Director for the Natural Resource Defense Council’s (NRDC) Public Lands Program. This article was originally published by NRDC.

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Flagship Enterprise Center

In Anderson, Indiana, the National Environmental Policy Act (NEPA) helped to facilitate proper planning the environmental impacts during construction of the $2.7 million-dollar Flagship Enterprise Center – an 80,000 square foot small-business incubator.

During the environmental review process, project sponsors became aware of impacts to neighboring forested wetlands, which are home to migratory waterfowl.

As a result, provisions were added to the project to preclude negative effects on wetland hydrology, prevent storm water runoff from being directed to the wetland, and provide retention facilities to contain storm water within the current footprint of the project site. Additionally, a 26.5-acre forested wetland southwest of the Flagship Enterprise Center (FEC) was protected.

Construction was completed in 2005, and the FEC was approved as a certified microlender in 2010 by the Small Business Association. In 2015, the FEC reached $7 million in microloans

 
[1] “The Tenth Report on the National Environmental Policy Act Status for American Recovery and Reinvestment Act of 2009 Activities and Projects.” White House Council on Environmental Quality. August 1, 2009. Available at:

[2] “Eco Industrial Business Park.” Madison County Council of Governments. Available at:
http://www.mccog.net/Eco%20Industrial%20Park%20Template.pdf

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Springfield High-Speed Rail Project

Originally built in 1973 to connect Chicago and Illinois’ state capital of Springfield, Amtrak’s State House line carves a path directly through the heart of downtown Springfield.

Later extended to St. Louis, the State House line continued to grow in use and popularity by both passenger and freight trains over the next few decades. As the city of Springfield also grew in size, the traffic congestion and delays caused by regular train crossings was becoming a major source of frustration among local residents.

Noise was also a concern. Train horns are required to be sounded at all public crossings to warn motorists and pedestrians when a train is approaching, 24 hours a day.

Data collected by the city on traffic delays caused by at-grade crossings confirmed what Springfield locals already knew – traffic congestion issue was worsening.

The report concluded: “With both car and train traffic projected to grow considerably in the intervening years…vehicle delays due to trains blocking crossings are projected to more than triple, from 13,800 vehicle-minutes per day today to 47,500 vehicle-minutes per day in 2030.”

When Amtrak and the Illinois Department of Transportation announced plans in 2006 to upgrade its tracks to accommodate demand for high-speed passenger rail service between Chicago and St. Louis, the city of Springfield voiced strong concerns about further local disruption from freight and passenger trains.

Because the $1.95 billion project required completion of an environmental review under the National Environmental Policy Act (NEPA), federal official were able to work with city officials and local residents to identify a long-term solution that would be submitted in a supplemental Environmental Impact Statement (EIS).

Serving as liaisons between Springfield and the federal project team, a Stakeholder Advisory Group was formed that helped to identify and address key local concerns, provide community input, and build public trust in the project.

The final supplemental EIS concluded that the most effective solution would be to reroute trains from the historical 3rd Street corridor to the 10th Street while also adding several underpasses and one overpass.

After securing nearly $1.65 in federal funding, Amtrak broke ground on the $314 million Springfield project in 2014. The current 5 1/2-hour trip between St. Louis and Chicago has been cut by 22 minutes following improvements to tracks in Joliet and Springfield.

Illinois Department of Transportation Secretary Randy Blankenhorn said in an interview with The State Journal-Register that top speeds of 100mph should save passengers a total of 53 minutes when the project is completed in 2019, pending installation of automated train-control and detection technology required for faster trains.

Speed limits in Springfield’s 3rd Street corridor are also slated to rise following completion of the project. The current speed limit is 25 mph; the limit will be raised by five miles per hour each week until it reaches 40 mph.

 
[1] “Springfield Rail Improvements Project.” Hanson Professional Services, Inc. Available at:

[2] “Record of Decision for the Springfield Rail Improvements Project.” U.S. Department of Transportation, Federal Railroad Administration. December 2012. Available at:
https://www.fra.dot.gov/Elib/Document/2777
[3] “Trains start moving faster along Springfield’s Third Street corridor.” The State Journal Register, October 22, 2018. Available at:
https://www.sj-r.com/news/20181022/trains-to-start-moving-faster-along-springfields-third-street-corridor
[4] “Illinois’ $2 billion, high-speed rail project in final phase.” The State Journal Register. December 15, 2017. Available at:
https://www.sj-r.com/news/20171215/illinois-2-billion-high-speed-rail-project-in-final-phase
 

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Building 330 at Argonne National Laboratory

In 2009, the Department of Energy (DOE) proposed to demolish Building 330 at Argonne National Laboratory in Illinois, the former site of Chicago Pile-5. CP-5 was the fifth and last member of the distinguished family of ​“Chicago Pile” reactors, whose legacy ranges from the earliest efforts to develop nuclear reactors to current research aimed at retiring them safely.

After receiving funding from the American Recovery and Reinvestment Act (ARRA) – a long-time barrier preventing cleanup – the Department of Energy used the National Environmental Policy Act (NEPA) to develop an Environmental Assessment for decontamination, removal of radioactive waste, and demolition of Building 330.

DOE also used the Environmental Assessment to bring together operational and environmental expertise from across multiple federal agencies to develop demolition and transportation approaches that better-protected workers and the public from potential hazards.

For example, the final project mandated that air monitoring be performed at the building site during demolition to ensure that the public would not be exposed to dangerous levels of radionuclides. It also required airborne contamination controls such as filters and barriers, along with personal protective equipment like respirators, to ensure the safety of the demolition workers.

“We had plans in place to demolish the building, but had difficulty finding the money to do it,” he said. ​“The ARRA funds allow us to complete this project ahead of schedule and let us keep more of our operating budget for research,” said Mark Peters, Deputy Laboratory Director for Programs.

 
[1] “Environmental Assessment: Proposed Demolition of Building 330 at Argonne National Laboratory.” U.S. Department of Energy. August 2009. Available at: 

[2] “Argonne awards $10 million contract to veteran-owned small business.” Argonne National Laboratory. December 16, 2009. Available at:
https://www.anl.gov/article/argonne-awards-10-million-contract-to-veteranowned-small-business
 

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Bell Smith Springs (Shawnee National Forest)

Nestled between the Mississippi and Ohio Rivers, Shawnee National Forest covers some 260,000 acres of dense hardwood forest in Southern Illinois.

In the 1990s, the U.S. Forest Service proposed to allow a Missouri company to cut over 3,400 acres in a part of the forest called the Bell Smith Spring area, one of the most popular recreation areas in the forest – it contains eight miles of interconnected trails featuring strange and wonderful rock formations, such as Devil’s Backbone, Boulder Falls, and a natural rock bridge.

The Forest Service originally proposed cutting the pines as a routine commercial harvest, but before a permit could be granted the Forest Service was required to carry out an environmental review under the National Environmental Policy Act (NEPA). This review process requires federal agencies to disclose a proposed project’s projected impacts on the environment, public health, and economic livelihood of local residents.

This NEPA review process revealed that the extensive logging proposed by the Forest Service would irreparably damage Bell Smith Springs and, when the Forest Service sought to approve the project anyway, environmentalists went to court.

Environmentalists stopped it on the grounds that it was clear-cutting. The Forest Service then slightly altered the plan, called it something else, and tried again. It was successfully blocked again, so USFS came back for a third time and called it “ecological restoration.”

This time, they explained, the pines needed cutting to restore the area to hardwoods, which had dominated before the land was cleared for farming about 100 years. This move, however, was again questioned. As environmental groups pointed out, hardwood saplings were already filling the understory of the mature pines, and the ridge-tops were predicted to revert to hardwood on their own within the next twenty years.

The proposed timber harvest near Bell Smith Springs was permanently halted, but without the NEPA process and its requirement for the disclosure of project impacts, it would have been extremely difficult for advocates to demonstrate the irreparable harm that would have fallen on Shawnee National Forest.

 
[1] “A case study on successes and failures in challenging logging activities with adverse cumulative effects on fish and wildlife.” Lewis & Clark Northwestern School of Law, 2002. Available at:

[2] “Soul of the Wilderness: can we stop trying to control nature?” International Journal of Wilderness. April 2000, Vol. 6, No. 01. Available at: 

Can We Stop Trying to Control Nature?


[3] “A Smart Infrastructure Plan Wouldn’t Gut Environmental Reviews.” Environmental Law and Policy Center. February 9, 2018 Available at:

A Smart Infrastructure Plan Wouldn’t Gut Environmental Reviews


[4] “Battle of Shawnee Forest Rooted in U.S. Land Debate.” Chicago Tribune. August 28, 1991. Available at:
http://articles.chicagotribune.com/1991-08-28/news/9103040317_1_timber-sale-forest-service-shawnee-national-forest
 

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Chicago’s Harbor Lock

In the early 2000s, a little-noticed but vital piece of Chicago’s infrastructure was fast eroding and in dire need to replacement.

Despite years of expensive temporary fixes, Chicago’s 68-year-old Harbor lock continued to periodically malfunction resulting in the disruption of recreational and commercial boating and stoking fears about the remote but real potential threat of a downtown flood – when the lock’s gates malfunction, engineers lose their ability to open or close them, a last-resort safety valve that’s been used five times since 1996 during heavy rain to keep the Chicago River from overflowing its banks.

If the lock failed to open under such conditions, hundreds of millions of gallons of river water could spill into Union Station, Lower Wacker Drive and basements of buildings along the river. That’s far more than the roughly 250 million gallons that poured into downtown Chicago during the Loop Flood in April 1992, when a freight tunnel under the river was punctured.

Though the river normally is about a foot lower than Lake Michigan, the narrow channel rises much faster during downpours. Under the right conditions, less than 3 inches of rain over 12 to 24 hours can cause the river to rise 5½ feet. At that level, engineers with the Metropolitan Water Reclamation District of Greater Chicago open the lock to prevent flooding.

A $17-million overhaul of the lock’s four steel gates in 1998 and 1999 was supposed to last at least 10 to 20 years, but the lock needed urgent repairs again two years ago when six of the eight rollers that move the 133-ton gates broke down.

Seeking a more permanent fix, the U.S. Army Corps of Engineers conducted an Environmental Assessment under the National Environmental Policy Act (NEPA) to plan for repairs to existing breakwaters and replace. During the environmental review process, NEPA revealed a better method of repairing and extending the life of the breakwaters at a fraction of the replacement cost by replacing the structural steel sector gate leafs and associated hydraulic operating machinery. As a result, the new lock gates are designed to reduce repair and maintenance costs and prevent service disruptions. The new gates and operating machinery have fewer parts and are more reliable, and are modeled after the proven design of the Thomas J. O’Brien Lock.

Today, the Chicago Lock is fourth in the nation in terms of commercial lock usage and second in the nation in terms of recreational lock usage. On a busy day, 50-100 vessels can be locked at once.

 
[1] “Chicago Harbor Lock.” S. Army Corps of Engineers. 2009. Available at:

[2] “Clock ticks on Chicago Harbor lock.” Crain’s Chicago Business. June 4, 2006. Available at:
http://www.chicagobusiness.com/article/20060604/NEWS12/200020858/clock-ticks-on-chicago-harbor-lock
 

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Court Strikes Down Edgeville Uranium Mine Permit

Buried deep in the heart of the northern Great Plains, the pine-covered peaks of the Black Hills rise thousands of feet into the sky along the Montana, South Dakota, and Wyoming borders.

To the Lakota people, this land is sacred – the Pahá Sápa is the center of their world. As Rick Two Dogs, an Oglala Lakota medicine man, explained: “All of our origin stories go back to this place. We have a spiritual connection to the Black Hills that can’t be sold. I don’t think I could face the Creator with an open heart if I ever took money for it.”

Unfortunately for the Lakota people, the Black Hills are also home to large deposits of gold and uranium ore.
Background
Uranium was first mined and milled in Black Hills in the 1950s, but sustained community pressure coupled with a sudden drop in the price in uranium in the 1970s resulted in a cessation of activities.

The damage, however, had already been done. No less than 169 mines were left abandoned and un-reclaimed, leaving a trail of contained land and water southwest of Mount Rushmore.

The damage was made worse by pollution from a uranium mill in Edgemont. The mill’s tailings – the radioactive waste leftover from processing – sat on the edge of a creek that feeds into the Cheyenne River, and for many decades after, leached into the region’s water supply.

“No one did any human health studies of uranium impacts in this area.  But we know from research in the Southwest, that the combination of mines and tailings piles can have substantial health impacts,” said Dr. Lilias Jarding, PhD.

Without modern-day laws like the Clean Water Act or a federal environmental review process mandated by the National Environmental Policy Act (NEPA) – laws Congress did not pass until 1969 and 1972 – the uranium mines or the impacts on the environment and public health were never disclosed to the surrounding communities before the project was approved, nor was there an opportunity for the public to weigh in and voice their concerns.

If the discovery of gold by General Armstrong Custer in 1874 prompted the US government to tear up the 1868 Fort Laramie treaty and steal the Lakota people’s land, then the discovery of uranium nearly a century later similarly prompted multi-national corporations to take that stolen land and pollute it.
Round two
By the mid-2000s, the price of yellowcake (minimally-processed uranium) had jumped from a low of $7 in the 1970s to a new high of $138. No less than eleven companies had soon expressed interest in re-starting mining operations in the Black Hills.

One company, in particular, drew the ire of local communities: Powertech Uranium. The subject of pending EPA action, Powertech published plans in 2006 for its proposed Dewey-Burdock project, which would have been located on 10,580 acres at the headwaters of the Cheyenne River, 50 miles west of the Pine Ridge Indian Reservation and 12 miles north of Edgemont. The project proposed drilling 4,000 deep injection wells into an aquifer used for domestic water and livestock using 9,000 gallons of water per minute.

Grassroots opposition to uranium mining began to swell again, led by three key organizations: Defenders of the Black Hills, founded in 2002 by Sioux Nation Treaty Council spokesperson White Face; Dakota Rural Action; and Clean Water Alliance, founded several years later in 2009. All three would prove instrumental in rallying support against the dangerous mine.

The City Council of Rapid City, South Dakota State Medical Association, and all nine tribal governments in South Dakota passed resolutions in opposition to the project.

Water is life

Opponents also cited the complex geology of the Black Hills.

In situ leach mining – the only way uranium mining is done – involves drilling hundreds of small wells over top of the uranium deposit, before pumping sodium bicarbonate concentrate into the individual aquifers and across the ore bed at high pressure in order to force the uranium out of the ground. This leach solution strips the uranium out of the aquifer – along with highly toxic arsenic, selenium, and other heavy metals.

If in situ leach mining sounds like dirty business, that’s because it is – even in the best of circumstances. But in order to prevent cross-contaminating multiple aquifers, the rock layers above and below the uranium mining aquifer must be continuous and without fractures.

The geology of the porous Black Hills, by contrast, is not. Groundwater flows freely through natural fissures and cracks to feed massive underground aquifers across the entire region. To pollute one aquifer is to pollute an uncounted number of the rest.

But Powertech took it one step further, planning to pump uranium wastewater directly into another aquifer used by area residents through four deep disposal wells. All told, the project would have impacted water from three of the four major drinking water sources in the Black Hills.
We talk, you listen
When first generation uranium miners came to the Black Hills in the 1950s, modern-day environmental laws were non-existent – it would be another twenty years before the EPA was founded.

Now, things are different. Before Powertech could begin mining for uranium, it would have to undergo robust environmental review under the National Environmental Policy Act (NEPA) and secure eleven federal, state, and county permits.

Passed into law into law with broad bipartisan support in 1969, NEPA requires the federal government to engage in a review process designed to discover any potential environmental, public health, or cultural impacts before a decision is made and the relevant permits are issued.

Although NEPA isn’t the only law project sponsors have to comply with – the Clean Water Act, Endangered Species Act, and National Historic Preservation Act are other examples – it’s the glue that holds the entire process together and keeps everything on track. Without NEPA, individual permit applications would become separated and balkanized, slowing the review process down.

A key component of this NEPA review process are mandated public comment periods that provide an outlet for citizens to speak out and voice their concerns about a potential project’s impact on their community.

At least, that’s how the NEPA process is supposed to work. The NRC, EPA and other participating agencies began work to analyze Powertech’s proposed project in early 2009, but didn’t begin consulting with impacted communities – especially tribal groups – until much later.

Still, when public hearings were eventually held in August of 2014, concerned community members packed into buildings to express their outrage and voice their opposition to Powertech’s Dewey-Burdock project.

Two hearings in Hot Springs proved particularly contentious.

From the outset, many members of the public expressed concern of NRC’s choice of location and apparent unwillingness to hold the hearings closer to impacted communities.

Mayor of Edgemont Carl Shaw was particularly vocal; “I am disappointed that all regulatory agencies that have had hearings for this project have refused hold them where the people will truly be affected, and that is Edgemont. Even though we have more than one ample facility to hold the hearings.”

City attorney Joel Landeen also testified, making clear that both the Mayor and City Council of Rapid City were vehemently opposed to the project.

“Since you are probably not from the area, to put it in perspective, Rapid City is a city of approximately 70,000 people, which is the largest city in the Black Hills region…Tens of thousands of people rely on this aquifer for their water, and we are really concerned that it not be contaminated in any way and still be a viable drinking source for the city of Rapid City and the other communities and people living in the Black Hills region,” testified Landeen.

Hot Springs Councilmember DeAnn McComb made her own impassioned plea. “This is our drinking water. Our bathing water. The water we enjoy swimming in. This is a vacation area, resort area. People from all over the world come to enjoy our area.”

Local resident David Miller also expressed concerns about the project’s long-term impacts. “I don’t believe that we’re capable of mitigating long term damage of the kind that Powertech, the kind of mining they’re proposing.”

If there is a question as to whether a project will impact tribal land, federal agencies are required by law to consult with the tribe’s historic preservation office. Tribal groups were sure to voice their own concerns at three similar hearings in Rapid City.

Oglala Lakota tribal member Dennis Yellow Thunder implored the NRC to stop the project. “We are very connected to the sacred water,” he said. “It’s up to us to defend that water. When you make your decision, feel that heartbeat. Help us. Help us to survive.”

Michael Catches Enemy, the Oglala Sioux Tribal Historic Preservation Officer (THPO), stressed the federal government’s treaty obligations and public trust responsibility to protect the tribe’s cultural resources.

“I am Lakota and I am the land,” he said in his introduction. “It may sound profound or unrealistic, but if we have sovereign nations, such as we carry ourselves, regardless of our status in most American minds, we still see ourselves with treaty rights.”

The 1868 Ft. Laramie Treaty originally guaranteed “absolute and undisturbed” use of the Black Hills under the jurisdiction of the Great Sioux Nation.

Unfortunately, the NRC failed to incorporate any of this information into its Final Environmental Impact Statement (FEIS).

Indeed, the final environmental review was so egregious that Ogala Sioux Tribe President Bryan Brewer complained in a subsequent letter to the NRC that the application failed “to assess even the detailed information contained in sworn oral testimony during hearings at the early stages of the State of South Dakota permitting process.”

The letter summarily concluded that “the review prepared by Powertech failed to include any direct input from any tribal sources, whether written or oral,” urging NRC staff to “abandon its current approach of prematurely finalizing its NEPA and NHPA documents until proper steps can be taken to ensure a competent cultural resource impact review.”

Nonetheless, the NRC approved Powertech’s Environmental Impact Statement (EIS), granting it a key permit.
Court of Appeals strikes down NRC permit
The NRC’s decision to sign off on the environmental review was met with immediate skepticism. Indeed, the agency’s own Atomic Safety and Licensing Board soon after acknowledged that the EIS was inadequate and had failed to take the required “hard look” at the project’s impacts. The agency, however, decided to leave the license in place while it worked to fix the environmental review, reasoning that it wouldn’t cause irreparable harm.

That decision was immediately challenged in court and struck down by the 9th Circuit Court of Appeals (Oglala Sioux Tribe v. NRC, No. 17-1059). Siding with the Oglala Sioux Tribe, which had worried that the project would lead to the destruction of cultural, historical, and religious sites, Chief Judge Merrick Garland wrote that the law “obligates every federal agency to prepare an adequate environmental impact statement before taking any major action, which includes issuing a uranium mining license.”

Judge Garland wrote that the EIS did not just contain a “technical violation of NEPA,” but that the NRC’s failure to consider impacts on the tribe was a “significant deficiency.”

Moreover, the judge noted that the NRC’s action appeared to be part of a larger systemic pattern of abuse.

“This was not a one-off decision by the NRC… Rather, it appears to be the agency’s settled practice,” noting that the NRC had previously allowed a license for uranium projects in Wyoming and Nebraska to remain in effect despite findings that NRC staff had not complied with NEPA.

The Black Hills were again safe from the specter of uranium mining, at least for now.

NEPA under attack
When environmentalist lay claim to Powertech’s Dewey-Burdock project as a NEPA “success story,” critics will rightly point out that the NRC’s Environmental Impact Statement was found to be deficient in the extreme and did not incorporate any of the concerns voiced by members of the local community.

Nonetheless, the NEPA process still served an important role. When federal agencies fail to perform appropriate outreach to affected communities or don’t incorporate that input into their analyses, the NEPA process ensures that members of the public are able to hold the government accountable when it violates the law.

When a federal court ruled that the NRC unlawfully advanced Powertech’s uranium mining project, that’s exactly what happened.

Unfortunately, the Trump administration and members of Congress – backed by powerful special interests – have mounted an all-out assault on both NEPA and public access to the courts. In the current Congress, more than 100 pieces of legislation have been introduced over the past two years aimed at weakening the substance of environmental reviews and restricting citizens’ access to the courts.

Many of these legislative proposals aimed at weakening the substance of environmental reviews under NEPA are labeled under the deceptive headings of “streamlining” and “permitting reform.” One of the worst examples of such legislation came in 2012 when Congress passed legislation entitled “Moving Ahead for Progress in the 21st Century Act” (MAP-21).

More recent legislative attacks include the “American Energy Independence and Job Creation Act” (H.R. 49), which would open up parts of Alaska to oil and gas drilling by deeming an outdated 30-year-old environmental review to satisfy the requirements of NEPA and require all public comments be submitted within 20 days of the project’s publication. Just as controversially, the “Resilient Federal Forests Act of 2017” (H.R. 2936) would exclude up to 30,000 acres in National Forests from any environmental review or public input for activities such as logging – for context, that’s over 22,000 football fields.

“Wealthy corporations and members of Congress know that they could never outright repeal NEPA because, for many federal infrastructure projects, it is the only law that gives the public influence over what happens in their own backyards – there would be a massive public backlash,” said Raul Garcia, Senior Legislative Counsel at Earthjustice. “So instead they’ve introduced bill after bill chipping away at public input and the environmental review process. It’s a death by a thousand cuts.”

Since taking office, President Trump and the current administration has also moved to swiftly roll back NEPA. Administrative rulemaking is underway at almost every federal agency, from the Departments of Transportation and Interior all the way down to USDA’s Animal and Plant Health Inspection Service. No agency is too small.

Topping it all off, in the summer of 2018 the White House Council on Environmental Quality (CEQ) announced plans to re-examine the NEPA’s implementing procedures across the entire government.

NEPA’s regulations are among the most broadly applicable in the entire federal government and apply to every “major federal action” the government takes, but the actual law – the statute – is very short. In other words, the real substance of NEPA is largely contained in its implementing regulations,” said Garcia.

That’s where the White House CEQ comes in. A small but critically important office housed inside the White House, the Chair of CEQ is tasked with the implementation of NEPA’s implementing regulations. In other words, the Chair of CEQ has immense power to shape – and potentially severely weaken – how environmental reviews are carried out across every federal agency.

Adding to the controversy, CEQ only offered 60 days for public comment on a rulemaking process that opponents say could affect every person in the United States on a level that eclipses even tax reform. Despite the short comment period, CEQ received over 100,000 comments, the vast majority of which urged CEQ drop the rulemaking process and ensure the continued integrity of the federal environmental review process. As one commenter succinctly stated: “leave NEPA alone.”

“Supporters of reasonable protections and public engagement have been trying to fend off these attacks, but the job is only getting harder,” said Garcia. “Rich corporate interests keep couching their actions as ‘streamlining’ but the hoax is up. The public knows that what they really want is to eliminate NEPA, making the communities across the country powerless to whatever ill-conceived projects they invent behind closed doors.”

 

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NRDC Sues U.S. DOT as the Gateway Project Stalls

With the government shutdown over, at least for now, NRDC, on January 28, 2019, filed a lawsuit in the Southern District of New York under the Freedom of Information Act. The reason? To find out why the Trump administration has prevented the Environmental Impact Statement for the Hudson Tunnel—part of the urgently needed Gateway Project—from being published.

Despite the President’s call for faster environmental reviews of projects, the White House seems to have subverted the review process to slow down a project he doesn’t want to move forward.

A major, and probably the most critical project for the nation’s economy, is building a new tunnel under the Hudson River. According to the draft Environmental Impact Statement, the existing tunnel, over 100 years old, suffered serious damage during Hurricane Sandy, and its replacement is critical for the health of our economy. When the tunnel needs to be closed for safety reasons, as it did after Sandy, the cost to the economy is estimated at over $100 million a day.
Timeline of Events
The environmental analysis of the Gateway project was slated to be completed on March 30, 2018, according to the White House website, which was perfectly in step with the President’s demand that project reviews be finished in no more than two years.

All was well, everything was apparently on time, but then the Department of Transportation went mum. Despite it now being 10 months later, the March 30th date had, until recently, still been listed as the deadline with no new notations added. Over the past six weeks, the deadline and status dates were recently removed from government dashboards.

NRDC, which supports the Tunnel’s construction and recognizes its necessity, requested last spring that the Department of Transportation provide an update on the status of the project. Crickets. In September, we filed a Freedom of Information Request, which required by law a response from the agency in 30 days. Crickets.

The major concern centers on how the Trump administration may have stymied the environmental review process – jeopardizing the economy of the New York region and the nation.
NEPA—National Environmental Policy Act
The administration often plays fast and loose with the facts dealing with NEPA, which is designed to ensure decisions made by federal agencies consider environmental impacts. The administration has previously highlighted three projects as “evidence” for proposing radical changes to the environmental review process—in the name of “speeding up,” but really steamrolling, the review process. Their rationale was categorically false, and we called their bluff.

Now, the administration is changing its tune—apparently slowing down the NEPA process, at the expense of millions of rail users.

Make no mistake, NEPA is essential to ensuring that federal projects consider the environmental impact of their actions and give the public a chance to comment on the effects of a proposed project. In this case, the Hudson Tunnel will improve the environment and decrease carbon pollution by preventing commuters and Amtrak users from being diverted to polluting airplanes and automobiles.

One of the many false statements in the State of the Union last year was that it takes 10 years to perform environmental reviews to build a simple road. But a White House study shows that most environmental reviews, even for the biggest project, takes much closer to the goal of two years. Ironically, the critic who gave the President the idea of “Two years not 10” said of this project:

“The importance of Gateway is undeniable. There are no serious arguments against the project. Nor are there any serious alternatives. Delay in starting work will only raise costs, drag down the regional economy, and cause environmental harm.”

This FOIA lawsuit should lead to the public knowing the truth—and this urgently needed project moving forward once and for all.

 
The Natural Resources Defense Council (NRDC) works to safeguard the earth—its people, its plants and animals, and the natural systems on which all life depends.

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The Partnership Project's NEPA campaign is a registered 501 (c) (3) non-profit organization.