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Bureau of Land Management Headquarters to Move in with Chevron. Will They Share a Bed?

Congress has been severely vexed by Interior Secretary David Bernhardt’s rush to dismantle and relocate the Bureau of Land Management headquarters to his home state, and he has refused to provide details about cost and rationale. With suspicion swirling that it is simply a power grab to get career staff out of the way, hobble the agency, and consolidate control of the budget process, legislators have been particularly keen to know his motivation.

The recent news about the location of the new office in Grand Junction, Colorado, has certainly helped answer that question.

The Bureau of Land Management (BLM), the agency responsible for multiple-use management of nearly 250 million acres of public land and 700 million acres of underground minerals, the largest land manager in the country, will share a building with Chevron and oil and gas lobbying organizations.
Par for the course
While this has shocked observers, it is par for the course during the Trump administration—a symbolic capstone to the administration’s blatant efforts to hand industry the keys to public lands.

That may be true, but it sure doesn’t make it ok.

The last time the Interior Department got this openly (and literally) cozy with industry was in the years leading up to the Minerals Management Service (MMS) scandal of 2008, when authorities discovered that regulators were doing drugs, exchanging favors, and having sex with their industry counterparts. There were literally no boundaries between industry and the agency—during the ensuing investigation one of the agency executives said “Obviously, we’re all oil industry.”

The ethical lapses of government staff in this instance were flagrant, and the dismissive attitude toward ethics rules was disturbingly similar to what we’re seeing among Interior Department’s political leadership today, so it’s not surprising that we might see similar tendencies.
Complete capture by industry
The phenomenon in which industry has direct access to regulators who promote industry interests over those of the public is known as “regulatory capture.” It is frequently characterized by a revolving door of personnel and often bribery in the form of gifts and favors. It is also really, really hard to fix. Even though the MMS was broken up and reorganized during the Obama administration—which separated the environmental enforcement branch, the offshore oil and gas leasing branch, and the revenue collection branch into separate organizations—the revolving door remains.

I saw this firsthand. When the Trump administration reassigned me in retaliation for blowing the whistle on their climate change neglect, they sent me to the Office of Natural Resources Revenue (ONRR), one of the three agencies created from the ashes of the MMS. While there I learned two things: a) I know nothing about auditing and b) many staff members have long industry resumes. I have deep admiration for the ONRR executives I worked with, but there is no denying the industry presence in the workforce.

Once regulatory capture infects an agency, it is nearly impossible to eradicate because an agency is understandably tempted to hire people who know the industry from the inside. At the very least, it remains subject to “cultural capture,” in which the agency comes to think like the industry it is charged with regulating.

So now BLM, the onshore equivalent of the MMS, is drifting ever closer to the warm embrace of the industry that wants unfettered access to public lands, our lands. Even if they somehow manage to avoid regulatory capture—and many observers say it’s far too late for that—there is no question that sharing a building will turbo-charge the existing cultural capture. It’s telling that Colorado Senator Cory Gardner, who took political credit for the relocation, has received more oil money for his 2020 campaign than any other US Senator.

Ironically, and laughably, BLM spokesman Chris Tollefson said the move will be effective because it will pull the agency away from all the special interests in Washington, DC—presumably referring to Congress and the other federal agencies that historically partner with BLM. This is just as nonsensical as their assertion that the move will improve operations among BLM offices—none of which are a direct flight from Grand Junction, Colorado, where the new HQ will be located.
A move right out of the Disinformation Playbook
If you think this is an aberration and not part of the administration’s playbook, look no further than the Union of Concerned Scientists excellent Disinformation Playbook and scroll down to play #5, The Fix: Manipulate government officials or processes to inappropriately influence policy. This headquarters relocation is right out of the playbook—and we can expect to see industry pulling the BLM strings more vigorously in the near future.

Secretary Bernhardt has failed to offer compelling justification for the chaotic relocation, and his attempts have been transparently feeble (is it really more effective to have the Congressional affairs staff in Reno, Nevada?). Tellingly, Trump’s Office of Management and Budget Director Mick Mulvaney has praised such relocations as a great tool for getting career staff to quit. That said, the new address for the BLM says all we need to know about the administration’s primary motivation.

Bernhardt is not doing this for the good of the agency, or the public interest. He’s doing it for his industry sponsors. They are delighted that he is delivering the agency into their hands while Senate Majority leader Mitch McConnell prevents Congressional oversight by sitting on his. Rather than quietly watch the concept of public service get turned on its head, Representative Raul Grijalva and the House Natural Resources Committee that he chairs are asking hard questions.

It’s time that Secretary Bernhardt takes responsibility for his actions and provides straightforward answers.

Joel Clement is a Senior Fellow with the Center for Science and Democracy at the Union of Concerned Scientists and the public face of the UCS Science Protection Project, through which federal scientists may confidentially report political interference in government science. Mr. Clement served in the US Department of the Interior (DOI) before becoming a whistleblower in 2017. He now works to expose political interference in science from the Trump administration and Congress.

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Dangerous oil and gas industry exemption slipped into highway bill

A landmark five-year, $287 billion highway bill moving in the Senate contains a poison pill provision that must be eliminated. The measure — which would be the largest highway legislation in history — is noteworthy for its inclusion of the first climate title in a surface transportation bill. The climate provisions are an important step toward addressing the urgent need to reduce transportation emissions and invest in infrastructure engineered to be more resilient to the increasingly severe effects of climate change.

Unfortunately, buried in this 510-page bill is an unrelated toxic provision that would establish a sweeping environmental exemption for thousands of natural gas, oil and wastewater pipelines — known as “gathering lines” — compressors and pumps on federal or Indian lands.

The provision would exclude such facilities from environmental review required by the National Environmental Policy Act (NEPA). If this provision becomes law, these pipelines could be built without public input or sound environmental review meant to analyze their potential impacts.

In the past, gathering lines often were located in sparsely populated areas and were only inches in diameter, in contrast to big transmission pipelines (e.g., the Keystone pipeline) that carry oil or natural gas across the country and are several feet in diameter. But gathering lines are getting larger — much larger. Producers today are employing gathering lines up to 36 inches in diameter with maximum operating pressures that rival transmission lines.

And the number of gathering lines across the country has grown as well, with hundreds of thousands of miles in the ground today. There are more than 6,000 miles of gathering lines in the state of Texas alone. Yet the vast majority of gathering lines are poorly regulated. As Pasadena, Texas Fire Chief Lanny Armstrong stated: “No matter the size, pressure or operator, all of these pipelines carry hazardous materials that can pose serious risks to people and the environment.”

In September 2018, a natural gas gathering line exploded outside a home in Midland, Texas, killing a 3-year-old girl and badly burning her sister and parents. In 2015, a gathering line carrying natural gas exploded in south Texas — “melting portions of a roadway and power lines.” In 2010, a work crew hit a gathering line in a remote area of the Texas panhandle, killing two workers. And in 2013, a rupture and fire in east Texas caused the evacuation of a dozen homes.

As the impacts of climate change continue to worsen, unregulated gathering lines face an increasing risk of failure because of extreme weather events such as hurricanes and floods. The Pipeline and Hazardous Materials Safety Administration (PHMSA) has issued multiple advisory bulletins to operators, warning about extreme weather events and their consequences.

As long as we keep producing oil and gas, there is a critical need to reduce methane emissions from production fields caused by flaring, venting and leaking. But without careful environmental review under NEPA, the public has no way to know whether a proposed pipeline project will be the most effective approach to reduce methane emissions or whether environmental, health and safety risks have been thoroughly analyzed and understood. In addition, the public will not have an opportunity to provide input. Gathering lines and field compressors present significant environmental, health and safety risks. When on federal or Indian land — some of our most treasured natural resources — they should not be excluded from NEPA review.

Congress should stop this fossil fuel industry giveaway hidden in an unrelated surface transportation bill. Letting it proceed risks irreparable harm to communities and to our environment.

This article originally appeared in The Hill. Amy Mall is a senior policy analyst in the Nature Program at the Natural Resources Defense Council. Prior to joining NRDC in 2001, she worked in the private sector and in county, state and federal government, including the White House National Economic Council and the U.S. Senate. Follow on Twitter @NRDC.

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Pebble Mine Environmental Review Falls Flat

When Tom Collier talks, it’s sensible to be skeptical. 

He is CEO of the Pebble Partnership, now consisting only of Northern Dynasty Minerals, the small, under-funded Canadian company behind the widely condemned Pebble Mine—a massive open pit copper and gold mine proposed for construction at the headwaters of the most productive wild salmon ecosystem on Earth, Alaska’s Bristol Bay. Earlier this month, Collier revealed once again his propensity to say pretty much anything to secure support for his reckless project.

Recall his remarkable comments in 2017 to CNN, when he enthusiastically endorsed the blatantly absurd proposition that the company is “going to be able to put a clean mine up there that’s going to have no effect.”  He said this about a project that, according to the company’s own mine plan, will destroy thousands of acres of wetlands, require construction of hundreds of miles of roads, pipelines, stream crossings, ports, and associated infrastructure, and introduce a massive industrial project into a perfectly functioning, pristine natural ecosystem.   

Last December, in a letter to Bristol Bay leaders, he wrote that the company’s “sophisticated models . . . show we can have a potentially positive impact on fish habitat . . .,” echoing Northern Dynasty CEO Ron Thiessen’s assurance to shareholders in June 2018 that the Pebble Mine “will enhance the fisheries.” 

And now this:

In an interview with KTUU News in Anchorage earlier this month, Collier had this to say about the draft environmental review prepared by the U.S. Army Corps of Engineers and its consultant to support the company’s permit application: 
I don’t know that in my career of almost 40 years doing permitting if I’ve ever seen a more positive and unequivocal draft Environmental Impact Statement. This one concludes, without question, that this project will not do any damage to the Bristol Bay fishery. Period.
Reassuring words?  He wants you to believe that his beleaguered project – opposed by Alaskans for over a decade, abandoned by the world’s major mining companies, and all but dead until rescued by the notoriously anti-science, pro-polluter Trump administration—can be vindicated on its environmental merit by issuance of a permit from the Army Corps.

Is Collier a credible source for this assessment? Should the people and communities of Bristol Bay believe him—the people who, if he’s wrong and after he’s gone, will have to live with the consequences? 

Is it possible that he might be influenced by his personal financial stake in the project, including, under an incentive contract, a $12.5 million dollar bonus if he gets a quick project approval?

Under these circumstances, it’s sensible to be skeptical, as the public comment record on the draft environmental review (“DEIS”) inarguably confirms. Tens of thousands of comments deeply critical of the DEIS—from government agencies, elected officials, Bristol Bay residents, tribes and tribal associations, commercial and recreational fishing stakeholders and associations, businesses and their associations, recreational outfitters, conservation organizations (including NRDC), and on and on—all of these interests have formally disputed in the strongest terms Pebble’s self-serving endorsement of the Army Corps process and the quality of its DEIS.

Here is just a very small slice of the overwhelming consensus of criticism that the record (accessible on the Army Corps website) reflects:

According to comments submitted by the U.S. Department of the Interior (“DOI”):
“After thorough review, we believe the DEIS has major outstanding issues related to an overreliance on qualitative, subjective, and unsupported conclusions. . . .  Based on these identified deficiencies, the DEIS is so inadequate that it precludes meaningful analysis. . . .  In summary, the DEIS does not fully discuss the potential impacts of the proposed mining activity on DOI-managed resources and lacks a number of important analyses that are necessary to adequately assess the project. Therefore, we recommend that the USACE prepare a revised or supplemental DEIS to resolve the significant gaps in the current document.”
According to the U.S. Environmental Protection Agency (“EPA”):
“The EPA has concerns regarding the extent and magnitude of the substantial proposed impacts to streams, wetlands, and other aquatic resources that may result, particularly in light of the important role these resources play in supporting the region’s valuable fishery resources. . . . Region 10 finds that this project . . .  may have substantial and unacceptable adverse impacts on fisheries resources in the project area watersheds, which are aquatic resources of national importance.”
EPA concluded the DEIS likely “underpredicts” the impacts Pebble could have on water quality, salmon and air quality. Further, the DEIS does not “support a reasonable judgment” that the project will comply with the Clean Water Act.
According to the U.S. Fish and Wildlife Agency in a July 25, 2019 letter to the Army Corps:
“We believe the project as proposed will have significant adverse impacts on important, fish, wildlife, and aquatic habitats. We are advising the USACE  . . . that the proposed work will result in substantial and unacceptable impacts to aquatic resources of national importance. Consequently, we recommend that a permit not be issued for the project as currently proposed. We recommend more robust analysis be conducted to thoroughly identify, analyze, and reduce risks to those resources . . . .”
According to the largest development corporation in the Bristol Bay region—the Bristol Bay Native Corporation—supported by 286 pages of detailed comments:
A major flaw of the Draft EIS is that much of the information that is necessary to complete a satisfactory review of the Project either does not exist or has not been provided by the Pebble Limited Partnership (PLP). The Corps should suspend its review of the proposed Pebble Mine Project until such time as that information exists and has been provided. . . .  [R]egardless of what action the Corps takes with respect to the Draft EIS, enough is known about the potential impacts of the proposed Pebble Mine Project to conclude that it cannot be constructed, under any variant, in a way that would not cause significant adverse effects to Bristol Bay, its waters and its fisheries, and therefore the Corps should not issue a permit to PLP.
According to Trustees for Alaska, based on 415 pages of comments submitted on behalf of The Alaska Center, Alaska Community Action on Toxics, Alaska Wilderness League, Audubon Alaska, Cook Inletkeeper, Defenders of Wildlife, Earthworks, Fairbanks Climate Action Coalition, Friends of Alaska Wildlife Refuges, Friends of McNeil River, McNeil River Alliance, National Parks Conservation Association, Natural Resources Defense Council, Sierra Club, and Wild Salmon Center:
The number of problems with the DEIS is staggering. The scope of analysis is completely inadequate to account for impacts to ecosystems. The baseline documents are inadequate. There are far too many data gaps to allow for a thorough review at this time. Some of the underlying assumptions are flat out wrong. There is no meaningful cumulative impacts analysis reviewing how each of the independent stressors to the environment interacts with one another. The Corps cannot comply with NEPA or the CWA based on these documents.
According to the Bristol Bay Regional Seafood Development Association:
[T]he Army Corps appears ready to approve this project based on little more than superficial rhetoric and colorful graphics, not science. The DEIS is woefully inadequate and is an affront to sound biological and economic analysis. If the Army Corps issues this permit based on a finalized version of this DEIS, it will be doing so based on information and analysis that is either erroneous, misleading, or altogether missing. Instead of taking a hard look at environmental and economic impacts, the DEIS takes a hard look away from the profound and predictable impacts of the proposed project.
According to United Tribes of Bristol Bay and the Nondalton Tribal Council:
[T]he DEIS fails to consider a reasonable range of alternatives; the DEIS is based on outdated, inadequate, and incomplete data; the DEIS fails to adequately consider mine failures and spills; the DEIS fails to adequately consider cumulative effects and future connected actions; the DEIS fails to consider adequate mitigation measures; and the purpose and need section of the DEIS is inappropriate. Given these and other fatal flaws and deficiencies identified in the attached memoranda . . ., the USACE must suspend the current NEPA process and prepare a revised DEIS to address these flaws and data gaps.
According to the Bristol Bay Borough Chamber of Commerce:
[W]e express concern that the draft EIS fails to require the Pebble Partnership to submit an economic feasibility study. It also fails to require the Pebble Partnership to submit a plan for environmental cleanup in the event of a failure or contamination that jeopardizes Bristol Bay’s highly sensitive ecosystem. The draft EIS fails to adequately address the long term impacts to Bristol Bay’s communities and existing sustainable economy. Considering these reasons and the fact that the majority of our members have responded that they are “Against the development of Pebble Mine” this Chamber of Commerce as an organization must oppose any development that threatens the collective livelihood of Bristol Bay, including the Pebble Mine.
According to former EPA Administrators from the Nixon, Reagan, and both Bush Administrations, as well as to former Interior Secretary to President Clinton:
We oppose the Trump Administration’s efforts to sweep nearly a decade of science and Clean Water Act review under the rug. The record is clear: The Pebble Mine is fundamentally flawed—it’s the wrong mine in the wrong place. And the choice is simple. Protect the greatest salmon fishery on the planet. Protect Alaskans and the Bristol Bay watershed.  For these reasons, we oppose issuance of a permit by the U.S. Army Corps of Engineers for development of the Pebble Mine.   
According to the National Parks Conservation Association:
Ultimately, the Pebble Project poses the question of whether the future of the Bristol Bay watershed is a healthy ecosystem that supports massive tourism and fishing industries and resident subsistence users, or an industrial mining watershed with all the impacts associated with air and water pollution, increased noise, traffic and people. The DEIS makes it impossible to address this question by refusing to analyze the impacts of a mining district on the watershed and on Lake Clark and Katmai National Parks and Preserves.
According to longtime environmental director and permitting chief for Rio Tinto Richard Borden:
Based on a careful review of the Pebble Mine Draft Environmental Impact Statement (DEIS), it is my professional opinion that the document and associated analysis is fatally flawed. The DEIS contains an unacceptable number of deficiencies, omissions and errors for such a large, complex project in an extremely sensitive environment. Due to the global significance of the salmon fishery, any EIS within the Bristol Bay watershed should be held to the highest standard, but the Pebble DEIS does not even meet industry standard practice. I would strongly urge the Army Corps of Engineers to restart the DEIS process with an analysis based on an economically-credible mine plan, supported by an independent and rigorous economic analysis demonstrating that it is the “least environmentally damaging practicable alternative.”
According to Trout Unlimited:
Because the permit application and DEIS are incomplete and fail to meet the most basic standards required by applicable law and regulation, the only alternative supportable by the record is for the Corps to take no action by denying PLP’s application. The Corps must deny the permit or suspend its review of the permit application and start anew with scoping and a new DEIS once additional plans, specifications, and background data are available to provide a comprehensive and thorough review of the proposed project and its potential impacts.
According to the Attorney General of Washington State:
Despite these mandates, the Draft EIS fails to satisfy NEPA and the CWA’s requirements in multiple respects. Specifically, the Draft EIS: • fails to consider Washington’s unique economic and educational connections to the Bristol Bay commercial and recreational fisheries; • fails to consider a reasonable range of alternatives, including a practicable alternative that would have less adverse environmental impacts; • drastically underestimates the size of the mine; and • fails to adequately analyze the direct, indirect, and cumulative impacts of the proposed mine, including potential impacts to the Bristol Bay watershed and the fisheries it supports and the potential impact of catastrophic tailings dam failure.
According to Tiffany & Co.:
The proposed Pebble Mine’s threat to Bristol Bay exemplifies the enormous human and environmental cost of irresponsible mining. The released Draft Environmental Impact Statement (DEIS) from the U.S. Army Corps of Engineers (USACE) fails to meet rigorous scientific standards and also fails to take into consideration the robust Environmental Protection Agency’s 2014 watershed assessment.
Tiffany & Co. was one of the first jewelers to sign the Bristol Bay Protection Pledge in 2008 and declare that, should the proposed Pebble Mine be developed, we will not source gold from it. Since that time, Tiffany & Co. has raised awareness about the danger of mining in such a precious place, first within the jewelry industry and then among the broader public. . . . Tiffany & Co. is not alone in taking this stance. A broad and diverse coalition—from recreation providers and commercial fishing companies, to restaurateurs, conservationists and Alaska Natives—has raised a unified voice in opposition to the Pebble Mine. We, along with so many others—including mining companies who previously planned to develop the Pebble deposit—concluded long ago that this mine represents an environmental risk of the highest order.
This record of criticism of the very same draft environmental review so enthusiastically endorsed by Pebble’s Collier goes on and on.  As Senator Lisa Murkowski, the senior member of Alaska’s congressional delegation, summed it up:
“[T]he Corps’ DEIS has failed to meet my standard of a robust and rigorous process.”
With Collier’s blanket assurance that the Army Corps’ environmental review has blessed his reckless scheme, Pebble is hoping to deflect public focus from any of these flaws. The definition of a mine,” Mark Twain is reported to have said, “is a hole in the ground owned by liars”—a sentiment worth remembering in the battle over the Pebble Mine.

The people of Bristol Bay—and all of us who support the fight to defend their region and their way of life—aren’t afraid of good science, and no one should be. But everyone should beware of backroom deals between the Pebble Partnership and the Trump Administration to transform one of the world’s most sustainably functioning ecosystems—supporting all the people, communities, and wildlife that depend on it—into a mining district for the benefit of the Pebble Partnership (aka Northern Dynasty), its shareholders, and its CEO. 

Take action now to stop the Pebble Mine.

By Joel Reynolds. The Natural Resources Defense Council (NRDC) purpose is to safeguard the Earth: its people, its plants and animals and the natural systems on which all life depends.

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How ‘Freeway Revolts’ Helped Create the People’s Environmental Law

In the summer of 1969 a banner hung over a set of condemned homes in what was then the predominantly black and brown Brookland neighborhood in Washington, D.C. It read, “White man’s roads through black men’s homes.”

Earlier in the year, the District attempted to condemn the houses to make space for a proposed freeway. The plans proposed a 10-lane freeway, a behemoth of a project that would divide the nation’s capital end-to-end and sever iconic Black neighborhoods like Shaw and the U Street Corridor from the rest of the city.

Today, Brookland is not home to an interstate. The community’s protest forced the government to cancel its construction plans. And the activists’ efforts helped spur the passage of a law that gives all people the right to weigh in on projects that affect their communities—a right that is now under attack from the Trump administration and its allies.

Residents taking a stand in Brookland were the latest participants in the “Freeway Revolts,” a multi-decade effort to force federal planners to consider the impacts of large development projects on communities and ecosystems. During and after World War II, 6 million Black people moved from the South to cities in the Midwest and California, drawn by employment opportunities and driven by the violence and poverty of the Jim Crow South. Following this demographic shift and growth in cities across the United States, planners rewrote municipal zoning ordinances and separated residential, commercial, and industrial development. These policies promoted urban sprawl and white flight, which fed the culture of automobile dependency. 

The Freeway Revolts formed alliances across lines of race and socioeconomic status. In D.C., wealthy white residents of Takoma Park and Georgetown allied with middle-class black and brown residents in Brookland. In Seattle, the Black Panthers aligned with the Sierra Club in opposition to highway widening proposals. In San Francisco, Latinx communities joined hands with white residents to protest the Central Freeway’s devastation to homes and communities. These various communities realized how disruptive and destructive these large urban planning projects are to neighborhoods and communities.

Activists demonstrate against proposed freeway construction in San Francisco in 1960. // IMAGE COURTESY OF SAN FRANCISCO HISTORY CENTER

Lacking a voice in the development process, residents and community members in cities across the country used tactics that ranged from picketing, petitioning and leafleting to directly occupying facilities. In each case, however, the central message was the same: Government should not ransack homes, divide areas, and introduce new sources of smog and noise pollution without the consent of those affected.

In many places, the protests forced city governments to change their plans, or even led to the removal of freeways that had already been built. At the federal level, the protests helped inspire a law that ensures the people get to weigh in on projects that affect their health, homes, and neighborhoods: the National Environmental Policy Act (NEPA). This law has become one of the most important tools to protect communities and our environment—and now, it’s under attack by the Trump administration.

In 1969, after over a decade of relentless pressure and public activism, Congress passed NEPA in a nearly unanimous vote. The aim of the law was to create a national environmental policy that equally weighed environmental impacts and the voices of communities when federal agencies developed infrastructure projects. NEPA was the first law to require the federal government to conduct an environmental impact study (EIS) when embarking on a project. It required the federal government to tell the public what it wanted to develop and establish time for communities to comment and offer environmentally friendlier or less disruptive alternatives; alternatives the government must consider under NEPA.

Community leaders heightened the national consciousness of the effects of environmental degradation on communities throughout the second half of the 20th century. // PHOTO COURTESY OF U.S. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

Over the years, it is communities of color—whose efforts made NEPA possible—that have invoked the law when seeking justice. After all, more than half of the people living less than two miles from a toxic waste site in the United States are people of color. Children of color are disproportionately more likely to face the dangerous health effects of lead poisoning. Indigenous communities like the Navajo Nation have been face-to-face with toxic water thanks to the legacy of uranium mining in the Southwest. In the Northern Mariana Islands, indigenous and low-income U.S. citizens are using NEPA to compel the U.S. Navy to consider the effects that artillery, rockets and bombardment will have on their tropical homeland and sacred sites. According to Cinta Kaipat, a resident of the island Saipan, NEPA allows communities to “fight this fight without firing a shot. The military will sit up and hear our voices.”

Right now, communities of color are using NEPA to challenge the Keystone XL pipeline, President Trump’s illegal border wall, waste incinerators in Puerto Rico, intrusive transit plans in Los Angeles, and pollution from the KCI Airport in Kansas City. The Northern Cheyenne Tribe in Montana successfully used NEPA to thwart Trump administration’s plans to reopen coal-mining leases on public lands. Ill-conceived development along the I-70 Corridor near Denver stopped thanks to NEPA. It is community voices, not those of polluting and profit-driven corporations with armies of well-paid litigators and lobbyists that are most likely to be excluded or ignored in the decision-making process. And it is their voices that can help stop further division and destruction in our environments if they are made apart of the planning process.

Put simply, the National Environmental Policy Act is a tool to help uplift the people’s environmental voice. That’s why it’s no wonder that the Trump administration and its allies want to stifle it, either by exempting certain proposals from oversight, limiting the length of public comment periods or eliminating public comment altogether.

Communities in the Northern Mariana Islands are using NEPA to challenge the U.S. Navy’s plan to conduct live-fire training on the island of Pågan. // PHOTO COURTESY OF DAN LIN

The spirit that drove communities of color and neighborhood residents throughout the U.S. to hang banners, picket, sit in, and stand up in the 1950s and 1960s is alive today. Even though several communities of color across the nation have been displaced and burdened by pollution because of freeway development projects in the 1960s, NEPA helps to fight against exclusionary and environmentally disruptive planning processes. 

As we fight to end environmental racism, we cannot allow the Trump administration and its allies in Congress to retrench the people’s tools for access to justice. We cannot allow them to limit public comments and continue to shut communities out of the NEPA process. It is through direct action and community engagement that NEPA came to be; safeguarding it gives people more power to be a part of the decisions that determine what happens in their communities.
This article is written by Teju Adisa-Farrar Raul Garcia and was originally published by Earthjustice. 

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After Broad Run, FERC’s GHG Policy Is on Thin Ice

The DC Circuit fired a warning shot this week at the Federal Energy Regulatory Commission and its analysis of the greenhouse gas emissions associated with gas pipeline projects. The court rejected the core legal arguments that underpin the agency’s policy and admonished FERC for its “less-than-dogged” efforts to build a robust record regarding these emissions. Although the court upheld FERC’s approval of the Broad Run project on procedural grounds, the main takeaway is that FERC’s climate policy is contrary to law and must be revised.
FERC’s historic take
FERC reviews applications to construct and operate interstate gas pipelines. Under federal law, FERC must disclose and consider the significance of all the reasonably foreseeable direct, indirect and cumulative effects caused by a proposed pipeline. Applying this to greenhouse gas emissions, or GHGs, FERC historically has cabined its analysis to the emissions caused by the construction and operation of the pipeline itself (midstream emissions). FERC has excluded from its analysis any GHGs associated with gas production (upstream emissions) or gas use (downstream emissions) (see here for more).
Sabal Trail forces FERC’s hand
In 2017, in the landmark Sabal Trail case, the DC Circuit rejected FERC’s approval of the Southeast Market Pipelines project because FERC had failed to include an analysis of the project’s downstream GHGs. While FERC briefly expanded its discussion of both upstream and downstream emissions, last year, FERC issue its current GHG policy, which restricted FERC’s consideration of these emissions to cases that match Sabal Trail exactly (in Sabal Trail, the project’s entire purpose was to transport gas to known power plants). This eliminated from consideration almost all upstream and downstream emissions associated with pipeline projects.
The DC Circuit responds
While not directly addressing FERC’s climate policy, the DC Circuit’s Broad Run decision rejects the core legal arguments that form the basis for that policy.

First, the court dismissed FERC’s restricted reading of Sabal Trail, noting that the case “hardly suggests” that downstream emissions are only to be considered “when the project’s ‘entire purpose’ is to transport gas to be burned at ‘specifically-identified’ destinations.”

Second, FERC has argued that downstream emissions are not reasonably foreseeable because the gas may displace other fuel sources. The court rejected that claim, too, flatly saying that FERC “is wrong to suggest that downstream emissions are not reasonably foreseeable simply because the gas transported … may displace existing natural gas supplies or high-emitting fuels. Indeed, that position is a total non-sequitur.”

Third, FERC has argued that because it does not regulate downstream end-users, its approval of the pipeline transporting the gas to those end-users is not the cause of those emissions. The court also rejected this argument, stating that because FERC can reject a pipeline project due to its harmful environmental effects, its authorization is a legally relevant cause of the project’s downstream emissions, “even where it lacks jurisdiction over the producer or distributor of the gas transported by the pipeline.”

Last, FERC has claimed that, even if it was required to conduct these analyses, because of the various actors involved in the gas supply chain, it would be “an exercise in futility” to ask project developers for more information about the gas’s origin or destination. The court was “troubled,” “skeptical,” and had “misgivings” about this “dubious” claim. It further criticized FERC’s “less-than-dogged” attempts to obtain this information. As noted by the court, federal law requires FERC “to at least attempt to obtain the information necessary to fulfill its statutory responsibilities,” and yet, for Broad Run, FERC made “no effort” to obtain this information from the project developer.
The time is now
In response to the Broad Run decision, FERC Commissioner Richard Glick called on the agency to reform its GHG policy immediately, as the decision “unambiguously affirms” FERC’s legal obligation to analyze the reasonably foreseeable upstream and downstream emissions of projects it approves. For too long, FERC has been trying to check the climate box and move on. FERC must take on this challenge immediately to comply with federal law. Otherwise, FERC is putting itself on a crash course that, in the process, will approve pipeline projects on dubious legal grounds, all the while enabling the taking of private landowners’ property to facilitate those projects and leaving massive energy investments in legal jeopardy. Additionally, by the time a court has a chance to review these approvals, the initial environmental damage likely already has occurred, as many projects do not reach the courts until they are already at least partially built and in service (this was the case in both Broad Run and Sabal Trail).

The time is now for FERC to put itself on a solid legal footing.

Gillian Giannetti is an Attorney with the Natural Resources Defense Council’s (NRDC) Sustainable FERC Project, Climate & Clean Energy Program.

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Alaskans Emphatically Tell the Army Corps “No Pebble Mine”

More than 900 people gathered to oppose the Pebble Mine yesterday in Anchorage, Alaska. Hundreds rallied outside the Dena’ina convention center where inside the U.S. Army Corps of Engineers held the last of several public hearings on its draft Environmental Impact Statement (EIS) for the Pebble Mine—a gold and copper mine proposed at the headwaters of the world’s greatest wild salmon fishery in Bristol Bay.

“Salmon Forever, Pebble Never” was just one of many anti-Pebble chants heard at the rally, which energized around 500 people outside the convention center demonstrating to protect Bristol Bay from the proposed Pebble Mine—and the Corps’ reckless rush to permit it.

Inside, indigenous subsistence users, commercial fishermen, sportsmen, scientists, conservationists, business owners, bear-lovers, and concerned citizens testified against both the behemoth Pebble Mine and the Corps’ woefully inadequate draft EIS.

People spoke from the heart, beseeching the Corps to prioritize their communities, culture, lives, and livelihoods over the profits of a foreign mining company.

“Our people have been saying ‘no Pebble Mine’ for over a decade,” said Second Chief for Curyung Tribal Council and Director of Natural Resources for Bristol Bay Native Association Gayla Hoseth. “We are sick and tired of the greed and the lies. Yet we are here again to comment on an inadequate draft EIS based on Pebble’s incomplete application to build a mine in our pristine environment, because we want to protect this last wild salmon run on earth as it exists today, for this generation and for future generations.”

Many commenters echoed that sentiment, noting our obligation to protect Bristol Bay for future generations.

“I’m a fifth-generation commercial fisherman,” said Emily Taylor, a 15-year-old who fishes in the Naknek-Kvichak district every summer. “And the permit I now hold once belonged to my great, great grandmother.” She wants to pass the fishing tradition onto her grandchildren but fears the Pebble Mine will destroy their heritage. “Do you think they’ll ask me about this day? What I did to stop it? I don’t want that to become my reality,” she said, adding that her people had been fighting to stop Pebble her entire life.

Numerous commenters focused on the inadequacies of the draft EIS.

Daniel Schindler, Ph.D. and Professor of Fishery Sciences at the University of Washington, described the draft DEIS as junk: “The reality is, if you put garbage into [an EIS] process, you get garbage out of a process. And what we’re looking at here with the Draft EIS is one that distinctly underestimates risks to fish, to water, and to people. It is junk. The draft EIS should be thrown out.”

Other scientists described the draft EIS in similarly negative terms, going so far as to use descriptors such as “lies,” “fantasy,” “fiction,” and “slipshod.”

The Army Corps of Engineers did not allow everyone to testify publicly and closed public comment at 8 pm sharp. The clock ran out on dozens of people still waiting to speak—including two small children who skipped dinner to wait hours for their turn. Instead of listening to everyone who showed up to speak, the Corps directed the public to provide written comments online.

This is just another—albeit egregious—example of how the Corps is unnecessarily fast-tracking the permitting process at the expense of interested stakeholders. The process is broken and the fix is in.

The Corps is accepting public comment until May 30th. Make your voice heard today.

I attended the hearing and gave the following testimony:

My name is Taryn Kiekow Heimer and I am here on behalf of the Natural Resources Defense Council and our more than 3 million members and activists.

In the last 5 years alone, tailings dams have failed across Brazil, Canada, the United States, and Mexico, killing hundreds of people and leaving a dead zone of polluted water.

Mining companies and regulators alike promised it would never happen. We’re now hearing the same empty promises from Pebble.

The law requires the Army Corps to do more than simply take Pebble at its word.

But the DEIS fails to do so—just like all those failed tailings dams across the world.

First, the DEIS fails to meet the basic requirements of NEPA and the Clean Water Act by fast-tracking the permitting process; by underestimating the long-term risks to people, water, wildlife and fish; by discounting Pebble’s unprecedented water treatment plan; and by ignoring impacts associated with fully developing the Pebble Mine, including the mining district in Bristol Bay that Pebble would ignite.
Second, the DEIS fails the people of Bristol Bay—who overwhelmingly oppose the Pebble Mine. It’s ignored numerous requests to pause the permitting process and extend the public comment period. People in Bristol Bay provided heart-felt testimony asking the Corps to prioritize their communities, culture, lives and livelihoods over the Pebble Mine. How can the Corps make a positive public interest determination when the public overwhelming rejects the mine?
Third, the DEIS fails to ask the biggest question of all: whether Pebble’s mine plan is even feasible. Pebble hasn’t submitted an economic feasibility study like all other mining companies have done before permitting. When the Corps asked for this information in an RFI, Pebble said it couldn’t disclose it without running afoul of Canadian Securities regulations prohibiting investor fraud and misrepresentation. Richard Borden, a 23-year veteran from Rio Tinto with experience in permitting more than 50 mines, did the math and found not only that Pebble, as proposed, is economically infeasible but that is has a net present value of negative $3 billion. Why is this project even going through permitting? A project that isn’t feasible by definition does not meet the LEDPA standard.
Finally, the DEIS fails to address what concerns people the most—a catastrophic dam failure.

Think of what a Pebble Mine disaster would do to Bristol Bay—what it would do to the communities who rely on subsistence fishing, the $1.5 billion annual commercial fishery that supports 14,000 jobs, and the people, businesses, and wildlife that rely on the prolific salmon runs.

We cannot afford to fail in Bristol Bay. I urge you to do the right thing. Listen to the people who would be impacted most, revise this DEIS, and ultimately deny Pebble’s permit application.

Thank you.
Taryn Keikow Heimer is Deputy Director of the Natural Resource Defense Council’s (NRDC) Marine Mammal Protection Project. 

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Dominion’s James River Transmission Project

More than 400 years of American history, including the first permanent English settlement in North America, were placed at critical risk in 2017 after the Army Corps of Engineers began construction on a nearly 7-mile-long stretch of massive 295-foot transmission towers within sight of Historic Jamestown and Colonial National Historical Park in Virginia.

Dominion Virginia Power, a for-profit energy company sponsoring the project, maintained that the state needed the energy from the power lines without which the regions could face rolling blackouts. However, the transmission project was met with considerable skepticism from local officials as well as other federal agencies who criticized the project on the basis that transmission construction would have adverse impacts on historically significant land and endangered species within the area.

Moreover, research from a 2015 report from the National Parks Conservation Association and Princeton Energy Research International suggested that Dominion’s underlying case for building massive transmission towers was based on faulty analysis – Dominion’s transmission line would provide more than four times the needed grid capacity.

The Army Corps of Engineers nonetheless pushed forward with the project, carrying out analysis under the National Environmental Policy Act (NEPA). Passed into law with bipartisan support in 1969, NEPA requires federal agencies to complete an environmental review identifying and publicly disclosing any potential environmental, public health, or cultural impacts a project may have before a decision is made and the relevant permits are issued.

There was only one problem – the Army Corps of Engineers decided to carry out an Environmental Assessment (EA) instead of a more detailed Environmental Impact Statement (EIS). Whereas EAs are prepared for smaller projects and in cases where the impacts are uncertain, agencies are required to carry out an EIS for major projects like power plants and interstate highways.

Choosing to ignore tens of thousands of comments from concerned citizens as well as sharp criticism from other federal agencies, including the Environmental Protection Agency (EPA), the Army Corps of Engineers concluded that the project would have no major impacts and that a detailed EIS was unnecessary. The Corps approved the project in 2017.

However, in a landmark court decision in March 2019, a federal appeals court found that the Army Corps of Engineers approval of Dominion’s transmission project to be in violation of NEPA on the basis that the permit was based on private research, lacked transparency and public engagement, and that the Corps  should have conducted an EIS.

Judge David Tatel described the significance of the area in detail, recounting Capt. John Smith’s voyage into the Chesapeake Bay and up the James River. “These journeys came to symbolize our nation’s founding and to serve as an equally important reminder of one of the darkest episodes in our history — the settlers’ devastation of Native American populations,” he wrote.
[1] “Appellate Court Says Corps Should Have Prepared EIS On James River Transmission Line.” National Parks Traveler. March 1, 2019. Available at:
[2] Natl. Parks Cons. Assoc. v. Todd Semonite, et al. No. 18-5179 (D.C. Circ. 2019). Available at:
https://www.cadc.uscourts.gov/internet/opinions.nsf/87FABC162438AE4B852583B000549984/$file/18-5179.pdf
[3] “Court decision could doom already built Va. power line.” E&E News. March 1, 2019. Available at:
https://www.eenews.net/stories/1060122819
[4] “5 Myths and 5 Facts About Dominion’s Ill-Conceived Transmission Line Plan at Historic Jamestown.” National Parks Conservation Association. October 21, 2016. Available at:
https://www.npca.org/articles/1346-5-myths-and-5-facts-about-dominion-s-ill-conceived-transmission-line-plan

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Tribes Challenge Final Permit For Toxic Open‐Pit Copper Mine On Sacred Land

TUSCON, AZ (April 10, 2019)  — The Tohono O’odham Nation, Pascua Yaqui Tribe, and Hopi Tribe filed a complaint in U.S. District Court today challenging the U.S. Army Corps of Engineers’ decision to issue Rosemont Copper Company a permit to commence construction of a massive open-pit copper mine on the eastern flank of the Santa Rita Mountains in the Cienega Creek watershed. The Tribes are represented by Earthjustice, an environmental legal organization.

The creek and its tributaries have supported the tribes and their ancestors since time immemorial. Cienega Creek and its upstream tributaries, including Davidson Canyon, Barrel Canyon and Empire Gulch, contain some of the highest quality streams and wetland ecosystems in Arizona.

Rosemont plans to excavate a mile-wide by half-mile deep open pit mine in Barrel Canyon, discharging an estimated 1.9 billion tons of waste rock onto adjacent public lands. These activities would destroy 18 miles of streams that are protected by the Clean Water Act. None of these activities can occur without a permit from the Corps.

Male jaguar photographed by motion-detection wildlife cameras in the Santa Rita Mountains on August 31, 2015 as part of a Citizen Science jaguar monitoring project conducted by the University of Arizona, in coordination with U.S. Fish and Wildlife Service. This is the same jaguar that has been repeatedly photographed in the Santa Rita Mountains.

“One of the primary reasons that the Pascua Yaqui Tribe opposes this mine is its impacts upon our water.” said Chairman Robert Valencia of the Pascua Yaqui Tribe. “The Pascua Yaqui Tribe knows that water is precious in the desert and precious to all the plants and animals that depend upon it. The few short-term jobs that this mine will create are not worth the destruction that we will have to live with forever.”

For over eight years, the U.S. Environmental Protection Agency, Pima County, and an overwhelming majority of the public joined the Tribes in opposing the permit for the mine, citing unacceptable adverse impacts on the ecosystems and severe and irreparable harm to tribal cultural resources.

“As a result of the Hopi people’s long history in the Southwest, we understand the importance of water,” said Vice Chairman Clark W. Tenakhongva of the Hopi Tribe. “Culturally any body of water is something precious and sacred and it would be culturally irresponsible for us to support any activity that would jeopardize a resource so essential to all living beings and something on which we all depend.”

Due to the unacceptable adverse impacts of the mine on aquatic and cultural resources, the Corps’ Los Angeles District Office refused to grant a permit for the mine in 2016. The Corps’ South Pacific Division, however, reversed course and granted Rosemont the permit earlier last month.

“The Corps’ South Pacific Division has provided no reasoned basis for reversing course and abruptly granting Rosemont a 404 permit,” said Earthjustice attorney Stu Gillespie. “EPA and the Corps’ District Office concluded that the proposed permit would violate the Clean Water Act and cause unacceptable harm to the public interest. The Corps cannot sweep these concerns under the rug in its rush to permit this devastating project.”

Rosemont plans to begin excavating and removing ancestral villages and burial sites in the near future. Its plans include the use of backhoe trenches, mechanical stripping, and shovel stripping to remove all cultural artifacts from the mine site, including human remains, funerary objects, sacred items, and objects of cultural patrimony.

“The proposed mine would forever destroy our ancestor’s burial sites, and structures they inhabited in the Santa Rita Mountains,” said Austin Nunez, chairman of the St. Xavier District of the Tohono O’odham Nation. “The mine would also erode evidence of our ancestors’ prior occupation in that area and destroy the plant life and watershed in the area. The long term environmental consequences that will come from the Rosemont Mine project development far outweigh the short-term financial gains sought by the company and its shareholders.”

The complaint states that in issuing the permit, the Corps violated the Clean Water Act, the National Environmental Policy Act, and the Administrative Procedure Act.

The Tribes are represented by Stuart C. Gillespie and Caitlin Miller, attorneys for Earthjustice.

Read the legal document.

About the Pascua Yaqui Tribe: The Pascua Yaqui Tribe is a federally recognized tribe of approximately 22,000 enrolled members with a reservation southwest of Tucson, Arizona.

About the Hopi Tribe: The Hopi Tribe is a federally recognized Indian tribe located in northeastern Arizona with approximately 14,475 members. The Hopi reservation occupies part of Coconino and Navajo counties, encompasses more than 1.5 million acres, and comprises twelve villages situated on three mesas.

About the Tohono O’odham Nation: The Tohono O’odham Nation is a federally recognized tribe of approximately 35,000 enrolled members, with more than 2.8 million acres of reservation lands in Southern and Central Arizona.

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Bastrop Senior Housing Project

Built in 1927, Bastrop High School was a sprawling, two-story, brick Tudor Revival structure located just outside downtown Bastrop, Louisiana.

After serving as an education center for six decades, the building fell into disrepair. Wind and rains from Hurricane Katrina caused further deterioration of the historic structure.

In 2009, a number of partners including the Department of Housing and Urban Development raised funds to convert the building into 76 affordable-housing units for elderly individuals.

Using the NEPA process, HUD identified numerous issues with the historic building that, if left unaddressed, could have endangered the lives of the building’s future occupants; these included structural instability, lead-based paint, asbestos, and lead-contaminated water pipes.

The final project design incorporated solutions to these problems, ensuring the safety of the senior citizens who would soon call the building home while preserving and restoring the building’s historic features such as its original redbrick exterior.

The project also benefited the community by converting a public nuisance into a facility that locals believe will contribute greatly to the town’s downtown redevelopment plan and attract investors to the area, which lost its major employer, International Paper, in 2009.
[1] “Bastrop County could benefit from HUD boost to flood recovery fund.” Austin American Statesman. August 24, 2017. Available at:

[2] “Developer plans senior affordable housing project for Hutto.” WCLife, February 26, 2016. Available at:
https://www.wclife.org/blog/view/developer-plans-senior-affordable-housing-project-for-hutto

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Paris Pike

A scenic road connecting Lexington and Paris, the beauty of Kentucky’s Paris Pike was historically overshadowed by safety hazards and congestion. The original two-lane rural highway extended over 13.5 miles of rolling hills dotted with 29 of the states’ oldest farms, but suffered from a lack of a hard shoulder and passing or turning lanes, a deadly combination that gave the road a significantly higher accident fatality rate than the average two-lane road.

Since the 1960s, numerous efforts to improve the stretch of road were met with staunch resistance from local groups. In the early 1990s a proposal from the Kentucky Transportation Center (KTC) to build a standard four-lane highway was once again met with opposition from local communities concerned about irreparable harm to the corridor’s history and natural landscape.

After KTC released its final design plans for the expanded highway, local opponents sued, taking the state transportation agency to court for violating the National Environmental Policy Act (NEPA).

Opponents successfully argued for an injunction on the grounds that the agency did not properly solicit public input on the project – a key component of the review process under NEPA. The judge ordered KTC to return to the planning process and seek a workable alternative to the highway that would meet demands of both parties.

This time, KTC performed extensive historic research and robust public outreach, holding hearings for community members to cooperatively design a road that fit the aesthetics and contours of the land while minimizing environmental impacts.

The $70 million project, completed in 2003, has received nationally recognized design award, and the National Trust for Historic Preservation cited Paris Pike as a project that “celebrates the spirit of place instead of obliterating it.”

The new design consists of two independent two-lane highways, one northbound and the other southbound, and an added shoulder to increase safety. Existing trees, fences, and stonewalls were either preserved or moved and restored to their original condition.

Environmental improvements include the relocation of more than 3,000 new trees and shrubs, designation of wetland areas, natural wooden guardrails, grass instead of grave shoulders, three miles of stone fence, and the preservation of the natural environment within the median. Additionally, a historic farmhouse was turned into a visitors’ center, generating tourism dollars for a town that would have lost money if Paris Pike were merely expanded. “

“It has been an immensely successful project. It preserved aesthetic integrity while doing what it was supposed to do: increase safety and capacity. It has significantly improved the corridor,” said Cumberland Sierra Club Chapter Chair, Lane Boldman.

Local resident Hank Graddy said going through the NEPA process was essential, noting, “It brought people and ideas to the table that otherwise would not have been there.” Paris Pike represents a true compromise facilitated by the NEPA process—road expansion without accompanying aesthetic and natural destruction.
[1] “Public Partnership – Kentucky’s Paris Pike Reconstruction Project.” AASHTO Quarterly Magazine, Vol. 78, No 2. 1999. Available at:
[2] “The Paris to Lexington Road Reconstruction Project.” University of Kentucky, KTC. September 2001. Available at:
http://www.e-archives.ky.gov/pubs/transportation/tc_rpt/ktc_02_02_fr79_96_1f.pdf
[3] “ASLA Announces Its 2002 Professional Awards.” AASLA. April 2, 2002. Available at:
https://www.asla.org/meetings/awards/awds02/parislexroad.html
[4] “The Road to Better Transportation Projects.” Sierra Club and NRDC. 2002. Available at:
https://vault.sierraclub.org/sprawl/nepa/sprawl_report.pdf

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