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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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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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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 Interior Department Is Using Faulty Logic to Justify New Oil Projects

The Beaufort Sea along Alaska’s north coast is bitter cold, packed with marine life, and underlain with millions of gallons of oil. Since the 1980s, oil companies have targeted a shallow area five miles from shore—between Prudhoe Bay, once North America’s most productive oil field, and the coast of the Arctic National Wildlife Refuge, the largest wildlife refuge in the country—to build an oil and gas production facility, the first in Alaska’s federal waters. But they were stymied by technical problems, ever-expanding budget estimates, and regulatory concerns.

Now, as the Trump administration pursues oil and gas development with fervor, drilling there might finally happen. In October, after Houston-based Hilcorp Energy Company acquired a lease to the land, the Bureau of Ocean Energy Management, or BOEM, signed off on a plan to develop the site, known as the Liberty Energy Project. If Hilcorp decides to go forward with the project, the company will build a nine-acre gravel island six miles offshore to base their operations and bury a seven-mile pipeline under the seafloor to connect the extracted oil and natural gas to the Trans-Alaska Pipeline System.

To gain approval for major energy projects like this one, U.S. law requires that BOEM take stock of how the project would affect the environment. The resulting document, known as an environmental impact statement, details the risks that proposed infrastructure and a potential oil spill might pose to the region’s caribou herds, breeding shorebirds, polar bears, and passing bowhead whales, as well as the project’s impact on water and air quality, including climate change.

However, if you look carefully at the section on the environmental consequences of greenhouse gas emissions for the Liberty Project (on page 4-52), the agency draws a surprising conclusion: That extracting 120 million barrels of oil from beneath the Arctic Ocean over the project’s 15-to-20-year lifetime would reduce global carbon emissions, and by no small amount. According to the agency, developing Liberty would save more than 25 million metric tons of carbon dioxide—or the equivalent carbon pollution emitted by 5.3 million cars over a year. In other words, the report determines that transporting and dumping gravel in the ocean to construct an artificial island, drilling into the seafloor to capture buried oil, and extracting some 70,000 barrels of the stuff each day at peak production is better for Earth’s climate than doing nothing at all.

Endicott Island is a 45-acre manmade gravel island, constructed in 1987, used as an offshore drilling platform off Prudhoe Bay in state waters in the Beaufort Sea. If Hilcorp Energy goes forward with the Liberty Energy Project, the company would construct a similar, but smaller, nine-acre gravel island to drill for oil beneath the seafloor in federal waters. Photo: James P. Blair/National Geographic Image Collection

“That’s just a crazy, crazy analysis,” says Jeremy Lieb, an attorney at Earthjustice, a non-profit legal firm that focuses on environmental issues. Last month, the Center for Biological Diversity and a host of other conservation groups represented by Earthjustice filed a lawsuit against the Department of Interior, which oversees BOEM, on the grounds that the agency’s environmental analysis of the Liberty Project distorts the damages associated with drilling and ignores basic economic principles. “It appears to be a convenient way for agencies to rationalize that any individual project will have essentially no effect on global greenhouse gas emissions,” Lieb says.

The use of a model that undersells carbon emissions appears to be a directive coming from inside the Department of Interior. When Audubonasked Frances Mann, a BOEM biologist who worked on the environmental impact statement for the Liberty Project, about the climate analysis, she said, “we used the models that we were required to use.”

The BOEM report reasons that in place of oil coming out of the Arctic, nearly the same amount of oil would be produced elsewhere in the world from places with “comparatively weaker environmental protection standards” and “increased emissions from transportation,” according to the federal document.

A Spectacled Eider lifts off from the Arctic National Wildlife Refuge, where the Trump administration is aggressively pushing plans to drill for oil and gas. In a recently released environmental impact statement for that project, the Interior Department used debunked models for calculating the climate impact of the project, an effort one economist described as an intentional obfuscation. Photo: Peter Mather/National Geographic Image Collection

This assumes that any oil not extracted in the Arctic would be replaced with foreign oil that uses dirtier methods and costs more to transport, ultimately emitting more carbon. That logic requires some economic gymnastics, says Gilbert Metcalf, an economist at Tufts University who specializes in energy and climate policy. “I just don’t find it credible,” he says. It’s more likely that Arctic oil would be replaced by oil from fracked wells in the United States, like those common in North Dakota and Texas, rather than overseas oil, Metcalf says. What’s more, producing oil in the Arctic is no pristine operation—it emits more carbon than oil produced in the Gulf of Mexico, according to a 2015 report released by the Carnegie Foundation, because of the difficulties of extracting oil in such harsh conditions.

The analysis makes another error, says Peter Erickson, a senior scientist at the Stockholm Environment Institute, an international research and policy non-profit organization. Basic economic models show that when more oil is produced in the United States, more oil is bought and combusted internationally. That’s because when there’s more oil on the market, prices drop—simple supply-and-demand economics. The Liberty Project analysis, and others, don’t fully take this effect into account, he says; they ignore the fact that the extraction of fossil fuels actually increases global carbon emissions.

“The underlying assumption is very common,” Erickson says. For years, including before Trump took office, government reports failed to account for the likely increase in consumption. Erickson first flagged the error in the analysis of the Keystone XL Pipeline, writing in a 2014 Nature Climate Change report that the State Department underestimated the project’s overall emissions—the difference between releasing up to 27 million tons of carbon dioxide annually and up to 110 million tons. “There was this sort of giant blind spot,” Erickson says.

BOEM also miscalculated carbon emissions in its draft analysis of Arctic and Atlantic offshore oil drilling in 2016, he says. After that, though, the agency seemed to learn from its mistakes. In November 2016, a BOEM report found that halting new drilling projects over five years would lower foreign oil consumption by billions of barrels. This could decrease global carbon emissions by up to 2.3 billion tons, Erickson estimates, more carbon than the entire U.S. transportation sector emits in a year.

If Hilcorp goes forward with the Liberty Project, it will bury a seven-mile pipeline under the seafloor to carry extracted oil and gas to the Trans-Alaska Pipeline System, shown here. It takes around 12 days for oil and gas to move from Prudhoe Bay through more than 800 miles of above-ground pipe built in Alaska’s wilderness to the endpoint at Valdez Marine Terminal. Photo: Dermot Tatlow/Panos Pictures/R​edux

This argument has held up in court. In 2017, a federal judge struck down another flawed emissions analysis conducted by the Bureau of Land Management on a coal project in Colorado. “She said very specifically [that] it’s irrational to say increase in supply is not going to increase consumption,” Erickson says.

Yet despite increased recognition of the problem, the Liberty Project environmental impact statement relies on debunked reasoning to conclude that developing the site would result in lower carbon emissions. This is an intentional move on the part of the Interior Department, Erickson says. “It’s not a misguided model; it’s a purposeful misuse of the model,” he says. “It’s enabling their decision and their allowance to expand the fossil fuel supply.”

Federal agencies continue to use the same flawed model in analyses of other new energy projects. A draft report detailing how drilling for oil in the Arctic National Wildlife Refuge would impact the environment, released December 20 by the Bureau of Land Management, also failed to account for the global increase in emissions from development. “It appears as if [the Bureau of Land Management] is purposefully obfuscating the question of the global oil market and CO2 emissions implications,” Erickson told Audubon over email.

This comes at a time when the world needs to reduce carbon emissions to avoid a climate catastrophe, according to a recent United Nations report—and yet emissions continue to accelerate. Halting fossil fuel expansion is the only way to reduce carbon emissions in a meaningful way, Erickson says. “The climate problem is a fossil fuel problem. There’s no debate around that.”

This story was originally published on Audubon.org. Audubon is a nonprofit dedicated to saving birds and the places they need today and tomorrow. For more stories from Audubon magazine or to learn about Audubon’s conservation work, visit the Audubon website.

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Senate Committee Pushes McNamee FERC Nomination Forward, Driven by Millions in Fossil Fuel Money

Members of the Senate Energy and Natural Resources committee voted on Tuesday to push the controversial nomination of Bernard McNamee for Commissioner of the Federal Energy Regulatory Commission (FERC) to the full Senate, on a mostly party-line vote.

McNamee currently leads the Office of Policy at the Department of Energy, where he helped to roll out Energy Secretary Rick Perry’s failed attempt to bail out the coal and nuclear industries. His resume reads like a who’s who in the fossil fuel industry and the far-right political crowd.

McNamee has deep ties to the Texas Public Policy Foundation, the Koch-funded organization that has provided a pipeline of Trump nominees, including the former nominee to the Council For Environmental Quality that even Republicans agreed was unqualified for the job. It was there that McNamee spearheaded “Life: Powered,” a project launched by the group in 2015 “to combat the Obama-era Clean Power Plan,” according to TPPF’s 2017 annual report. He also served as a senior advisor and counsel to Sen. Ted Cruz (R-TX). This past Earth Day, he authored a love letter to fossil fuels that implored Americans to remember how “the responsible use of America’s abundant resources of natural gas, oil and coal have dramatically improved the human condition.”

Joe Manchin joined Republicans in voting for McNamee, 13-10, even in spite of a recent video that shows McNamee criticizing renewable energy and expressing strong support for the sole use of fossil fuels – as well as describing environmental advocacy as “tyranny.” This vote serves to underscore a continuing problem in Washington: that a nominee who, on the record, has showed significant bias toward the fossil fuel industry, is lauded and promoted by Senators to lead the very agency where he is expected to remain impartial.

The 13 Senators who voted in the Committee to move McNamee’s nomination forward have taken a combined total of nearly $10 million from the fossil fuel industry – bought and paid for by an industry that accelerates the climate crisis and only cares about protecting their profits. It is evident that fossil fuel money is both crippling our democracy and destroying our climate, influencing the structural branches of government that regulate our nation’s infrastructure and energy supply.

The key numbers breakdown:

Combined fossil fuel contributions to Senators voting for McNamee: nearly $10,000,000
Average lifetime dirty energy money per Senator voting for McNamee: $755,219
Average lifetime dirty energy money per Senator voting against McNamee: $88,682

That works out to more than 8 times the dirty energy money taken by those voting in favor of McNamee’s nomination than the average of those voting against the clearly fossil-biased pick. Today’s vote moving McNamee’s nomination forward shows that the industry’s grip on Washington politics is still suffocating our democracy. McNamee will go before the Senate next month for a full vote on his nomination, where we will have one more chance to push against the industry’s influence and prevent McNamee from becoming the next Commissioner of FERC.

 

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EPA Clouds Transparency for Environmental Impact Statements

The Environmental Protection Agency has decided to stop the combination of letter and numeral grades for evaluating Environmental Impact Statements prepared by the federal agencies. The two-factor grading system graded both the quality of the analysis and the actual level of environmental impact. This change will dim the transparency of the federal agencies’ work. This new policy will make it much harder for the public or press to judge early-on the seriousness of environmental impacts of the project and the quality of the agencies’ analysis of that impact. There’s a simple analogy: What if we got rid of grades in schools?

Teacher Ben:
“Well class, as you requested, we will no longer grade your final examinations. However, we will continue to put comments in the margins of your exams where we think more work is needed. We will not send a letter grades to your parents but will send them a copy of your final essay with our comments in the margins.”
Who does this help? Bueller?

Since 1984 EPA have evaluated environmental impact statements of federal agencies for both the adequacy of the NEPA documentation and the actual level of environmental impacts. They also make specific comments to the environmental analysis.  They will continue with specific comments but no longer have a clear summary grade.

The EPA website lists the grading options (reprinted before the material is deleted from the EPA website):
EPA has developed a set of criteria for rating a draft Environmental Impact Statement (EIS). EPA rates the draft EIS on an alpha-numeric system and includes the designated rating in EPA’s comment letter. In general, the rating is based on the lead agency’s preferred alternative. The rating system provides a basis upon which EPA makes recommendations to the lead agency for improving the draft EIS. The alphabetical categories listed below signify EPA’s evaluation of the environmental impacts of the proposal: 
LO (Lack of Objections)
EC (Environmental Concerns)
EO (Environmental Objections)
​EU (Environmentally Unsatisfactory)
The numerical categories listed below signify an evaluation of the adequacy of the draft EIS: 
1 (Adequate)
2 (Insufficient Information)
3 (Inadequate)
The rating of the draft EIS consists of one of the category combinations shown below:
LO
EC-1, EC-2
EO-1, EO-2, EO-3
​EU-1, EU-2, EU-3, or 3
https://www.epa.gov/nepa/environmental-impact-statement-rating-system-criteria
(October 26, 2018)
The combined letter-numerical system was simple, edifying and useful to the press and public.

On October 22, however, EPA announced it would end the grading policy. Before announcing this abrupt change of this Reagan Administration policy, EPA did not talk to environmental advocates, project sponsors, states, tribes or other affected groups. EPA did get input from—using my analogy—the students—the federal agencies, who thought dropping the grading system was a swell idea. Better to hide inadequately prepared environmental reviews as well as the seriousness of the likely environmental impacts? Agencies argued that grading was inconsistent among EPA Regions but that issue exists in almost all grading that are not true-false or multiple choice. 

The National Environmental Policy Act is a foundational environmental statute meant to give the public a chance to comment and understand what the federal government is doing an action that may significantly impact the environment or their community. Making this material accessible is very important. The Trump administration and EPA Administrator Andrew Wheeler, evidently think differently. Now, affected communities will not have a heads-up from environmental experts at EPA on the seriousness of the environmental threat unless they trudge through the high technical comments of the EPA and the often-technical language in the environmental review.

EPA is still required by Section 309 of the Clean Air Act to evaluate and send comments on the EISs to the agency responsible. Under law, EPA must still forward projects that would have an unsatisfactory environmental impact to the Council of Environmental Quality but the memo announcing this new policy noted that such a referral would be “rare.” The original plan, outlined in President Trump’s Infrastructure Plan, was to repeal the Clean Air Act provision thereby eliminating both the EPA review and consequently the referral to CEQ for projects that had an unsatisfactory environmental impacts. Removing the grading system is their Option B.

 
Scott Slesinger is Legislative Director of the Natural Resources Defense Council (NRDC).  

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5 Recommendations to Speed Infrastructure Permitting Without Gutting Environmental Review

Getty/Justin SullivanWorkers construct scaffolding on a bridge in California, March 2014.

There is significant bipartisan agreement that the need to fix the nation’s crumbling infrastructure is critical. However, the environmental review process for permitting these infrastructure projects often becomes the scapegoat for any delays. Because of this, there have been a number of efforts to amend, weaken, and even scrap federal environmental review requirements over the years. But this review is critical—not only because it protects clean air and clean water for U.S. residents but also because it allows for public input to be collected and considered, ensuring that affected communities have a chance to weigh in on project alternatives.
Over the past six years, Congress has acted on three separate occasions to address common permitting challenges, passing the Moving Ahead for Progress in the 21st Century Act (MAP-21) in 2012, the Water Resources Reform and Development Act (WRRDA) in 2014, and the Fixing America’s Surface Transportation (FAST) Act in 2015. These bills provide the federal government with an array of tools to expedite permitting processes, without sacrificing environmental considerations and community input. But with President Donald Trump’s issuance of Executive Order 13807 in August 2017, environmental review is again on the chopping block.
Instead of asking Congress to cut corners and gut cornerstone environmental laws, here are five ways that federal agencies and their partners can use the tools already at their disposal to speed infrastructure permitting.

1. Fully implement existing permitting reforms and authorities that were enacted in the FAST Act, the WRRDA, and MAP-21
The three pieces of legislation noted above provided a number of new tools to federal agencies to speed environmental review. But the Trump administration continues to point to the permitting process as the main cause for project delays. Limited existing data, however, show that delays are more often the result of a lack of funding, failure to govern, and even politics.
As one way to address this, Congress directed the U.S. Department of Transportation to establish a public-facing online tracking system of projects in the permitting process. Project sponsors and the public are now able to use the tracking system—known as the Federal Infrastructure Permitting Dashboard—to expedite projects and understand the true causes of any delays. The permitting dashboard is still very much a work in progress, but it has significant untapped potential that could be improved through an investment in resources to ensure that it is upgraded on a regular basis.
Additionally, extensive and rigorous training components for subject matter experts across the government on how these new tools and authorities affect their work would ensure that the tools are being effectively employed. The Annual Report to Congress for Fiscal Year 2017 from the Federal Permitting Improvement Steering Council (FPISC) shows that each agency has at least one updated online training tool. Leaders of permitting in the Executive Office of the President (EOP) should prioritize developing a strong community of practice across the government so that practitioners can regularly share case studies, training tools, and data needs.

2. Appoint people with collaborative project implementation and permitting expertise across the government
It is impossible for environmental review, and therefore permitting, to be streamlined without appropriate staff to do the work. Yet President Trump has failed to appoint people to key positions that could help accelerate project delivery, including positions within the EOP that are integral to coordinating reviews. In 2015, the FPISC was established to bring agencies together to discuss review challenges and share best practices, as well as to provide a connection to the EOP and the president. Yet the Trump administration has still not appointed anyone to lead the FPISC, which indicates a lack of high-level investment in permitting. The administration should make it a priority to fill these positions if it wants to see expedited permitting timelines.

3. Fund environmental review through implementing existing fee authority for cost recovery and regular appropriations
The FAST Act allowed the FPISC to create “a fee structure for project proponents to reimburse the United States for reasonable costs incurred in conducting environmental reviews and authorizations” for certain projects. The FPISC, however, has taken far too long to begin implementing this provision given the relative priority the Trump administration claims to place on expedited permitting. This new source of funding could help substantially, as permitting under the FAST Act only applies to the most complex projects.

4. Study and collect data on environmental review contracting practices
Federal agencies frequently turn to outside firms to conduct environmental reviews. For example, the Bureau of Land Management (BLM) has contracted with Environmental Management and Planning Solutions Inc. to do the environmental review for oil and gas development in the Arctic National Wildlife Refuge in Alaska. The contract award is for $1,667,550.44, and information from the General Services Administration shows that the federal contractor bills $214 per hour for a senior scientist’s time. While this may be a bargain for taxpayers, it is difficult to say for certain given the lack of data and other information on the frequency, cost, or efficacy of outsourcing essential environmental analysis. To address this, Congress should work with the U.S. Government Accountability Office to study and gather information about federal contracting practices for environmental review across the federal government.

5. Remove political influence from the environmental review process
The permitting review process must be objective and free from the political interests and conflicts that can so easily stall, delay, or even derail infrastructure projects. But the administration’s handling of the Hudson Tunnel project, an infrastructure proposal to modernize the bridges and tunnels that ferry more than 200,000 commuters per day to and from New Jersey and Manhattan, lays bare the current level of political meddling in the review process. Since a bipartisan meeting in September 2017, the president has refused to fund the project unless the Senate agrees to fund the southern border wall. The Trump administration points to burdensome environmental reviews as the culprit for delay—yet recently, an administration official was quoted as saying that the administration is “slow-walking” the completed review’s release.

Conclusion
Already, there is evidence that these tools, when used, can ensure that environmental review of major infrastructure projects is efficient. Instead of rushing headlong into further gutting the statutes that provide for public input on infrastructure and that protect clean air, clean water, and wildlife, the administration should put its existing toolkit to use.
Christy Goldfuss is the senior vice president for Energy and Environment Policy at the Center for American Progress. This article was originally published by the Center for American Progress. 

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On the U.S. Army Corps’ Aug. 31 Decision on the Dakota Access Pipeline

 

The U.S. Army Corps of Engineers issued a brief decision on Aug. 31, 2018, affirming its original decision to issue a construction permit for the Dakota Access Pipeline.

The decision comes a year after a federal court decision finding that the Army Corps decision violated federal laws and failed to consider the risks and impacts of oil spills.
Earthjustice attorney Jan Hasselman explains what happened.
 

https://earthjustice.org/sites/default/files/files/dapl-remand-decision.pdf

What action was just taken by the Army Corps of Engineers?

The Corps released a review of its original decision to grant permits to the Dakota Access pipeline to cross the Missouri River just upstream of the Standing Rock reservation.The review concludes that the original decision was lawful and adequate and that no further environmental review is necessary. (Read the Corps’ decision.)

How did the Standing Rock Sioux Tribe respond?

 

Mike Faith, Jr., Chairman of the Standing Rock Sioux Tribe, issued this statement: “The Army Corps’ decision to rubberstamp its illegal and flawed permit for DAPL will not stand.

“A federal judge declared the DAPL permits to be illegal, and ordered the Corps to take a fresh look at the risks of an oil spill and the impacts to the Tribe and its Treaty rights. That is not what the Army Corps did. Instead, we got a cynical and one-sided document designed to paper over mistakes, not address the Tribe’s legitimate concerns.

“The Tribe has worked in good faith every step of the way to develop technical and cultural information to help the Corps fully understand the consequences of permitting this pipeline. They took our hard work and threw it in the trash.

“The Tribe will be reviewing this decision closely, and determine how best to proceed in close consultation with our membership, staff, and advisors. In the meantime, we will continue to extend an open hand to the Army Corps to continue an honest dialogue about the impacts of this pipeline to the Standing Rock.”

Why did the Corps conduct a review of its original permit decision?

 

After Donald Trump reversed the Obama administration’s decision to effectively deny DAPL its permits at the Missouri, the Standing Rock Sioux Tribe, represented by lawyers at Earthjustice, filed a new lawsuit against the Army Corps of Engineers.

Among other things, the lawsuit alleged that the Corps failed to consider the risks of an oil spill, the impacts of a spill for the Tribe’s treaty rights, and the “environmental justice” implications of the permit.

In June of 2017, a federal judge in Washington, D.C., agreed with the Tribe on these issues, finding that the Corps violated the National Environmental Policy Act by failing to give appropriate consideration to these matters.

The Court ordered the Corps to study these issues further and make a new permit decision. This review is known as a “remand.” (More on the 2017 ruling.)

What is the National Environmental Policy Act?

 

Often referred to by its acronym, “NEPA,” the National Environmental Policy Act is one of America’s landmark environmental laws — it is sometimes known as the “Magna Carta” of environmental law.

This law requires that, before a federal agency takes any action (such as a permit) that has significant environmental implications, it must fully disclose and consider all the risks and benefits of that decision — as well as alternatives with less environmental harm. The document for doing so is called an ”environmental impact statement.”

But the Army Corps never performed an environmental impact statement for the Dakota Access pipeline, finding that its effects were too insignificant to warrant that close study.

The remand document reaffirms that core finding, which the Tribe continues to believe is illegal.

Is the pipeline currently operating?

 

DAPL commenced operations in early June 2017, a few weeks prior to the Court’s decision finding that the permits were issued unlawfully.

The Court subsequently asked the parties for additional argument on whether the pipeline should be shut down while the remand was underway. In October, the Court answered that question in the negative. However, the Court later imposed some measures to increase pipeline safety and accountability.

Did the Tribe participate in the remand process?

 

The Tribe worked hard to participate in the remand process so that it could work collaboratively with the Corps and ensure that the government understood its concerns.

Its technical experts prepared an extensive report on the risks and oil spills. The Tribe repeatedly asked for meetings and for technical documentation from the Corps and DAPL.

However, the Corps refused to share any of the technical information on which it relied, in violation of its own consultation policies and severely undercutting the ability of the Tribe to comment effectively on DAPL’s incorrect and self-interested technical materials.

What specifically did the remand document conclude?

 

Remarkably, the Corps’ memorandum of decision is only two pages long. It concludes, without explanation, that:

The pipeline will not adversely impact the Standing Rock Tribe’s treaty resources because “the risk of an incident is low;”
Does not implicate any environmental justice considerations, even though the project was routed at the doorstep of the Standing Rock reservation; and
Rejected the Tribe’s technical input and finds that there is not a significant controversy over the project’s impacts.

The memo points to an analysis that the Corps informed the Court was not being released at this time due to a confidentiality review. However, the Tribe believes that every one of these conclusions is incorrect.

What comes next?

 

The Tribe, together with its technical and legal teams, will be meeting in the weeks ahead to discuss options.

The Court still retains jurisdiction over the case and may put a deadline on the Tribe to decide whether it will bring a new lawsuit against the remand decision. Those decisions will be made in the next 4–6 weeks.

The Tribe will make a public announcement when it takes the next step in the process.

 

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