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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:
EC-1, EC-2
EO-1, EO-2, EO-3
​EU-1, EU-2, EU-3, or 3
(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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An Environmental Audit of Trump’s NAFTA Deal

The NAFTA deal between the U.S. and Mexico would encourage further outsourcing of pollution and jobs, offer special handouts to notorious corporate polluters, lock in fossil fuel dependency, and extend Trump’s polluting legacy for years after he has left office. It not only fails to mention climate change – it would prolong NAFTA’s contribution to the climate crisis. Despite progress on a few fronts, the deal fails to adequately protect wildlife, clean air and water, or the health of communities that NAFTA has exposed to toxic pollution.

During the NAFTA negotiations, leading U.S. environmental groups outlined minimum changes that must be made to NAFTA to halt the deal’s environmental damage. See here for these minimum environmental criteria.  

A review of the text of the U.S.-Mexico-Canada deal reveals that it falls far short of these baseline criteria and would pose significant threats to our air, water, and climate. In short, the deal:

Supports further outsourcing of toxic pollution and jobs: The deal’s lack of binding environmental standards would allow more corporations to evade U.S. environmental policies by shifting jobs and toxic pollution to Mexico, where environmental policies are weaker. For example, the lack of any binding lead pollution standards means that corporations would still enjoy NAFTA’s incentives to dump their lead waste in Mexico, which has contributed to job loss in the U.S. and toxic lead poisoning in border communities.
Denies climate change: The deal fails to even mention climate change. This denialism leaves intact NAFTA’s incentives for corporations to dodge the hard-fought clean energy policies of U.S. states by moving to Mexico, eliminating jobs and perpetuating climate pollution. This climate loophole only reinforces the U.S.’s status as the world’s largest outsourcer of climate pollution.
Rolls back the environmental standards of past trade deals: The deal takes a significant step backwards from the environmental protections included in the last four U.S. trade deals by failing to reinforce a standard set of seven Multilateral Environmental Agreements (MEAs) that protect everything from wetlands to sea turtles. The deal includes standard enforcement language for only one of the seven MEAs, while using weak language for two MEAs and failing to even mention four of these essential environmental agreements.
Includes weak environmental terms: The environment chapter is primarily filled with non-binding terms that mirror the weak words of the polluter-friendly Trans-Pacific Partnership. For example, the text “recognizes that air pollution is a serious threat to public health,” but then fails to include a single binding rule to reduce the air pollution that NAFTA has exacerbated. Much of the language appears designed to greenwash the deal, not to rectify NAFTA’s threats to wildlife, ecosystems, or clean air and water.
Copies a failed enforcement system: Even the strongest language will only be effective if enforced. The deal essentially replicates the same failed environmental enforcement mechanism from past U.S. trade agreements. Not once has the U.S. used this mechanism in past trade deals to bring a case against a U.S. trade partner for environmental abuses, despite widely documented violations.
Offers a dangerous handout to Chevron and ExxonMobil: The deal makes progress in curtailing the overreaching corporate rights in NAFTA’s “investor-state dispute settlement” (ISDS) system…but then uniquely offers those egregious rights to notorious corporate polluters. This special handout is available to all U.S. oil and gas corporations that have, or may at some point have, government contracts for offshore drilling, fracking, oil and gas pipelines, refineries, or other polluting activities in Mexico. That means, for example, that Chevron and ExxonMobil – the two largest corporate climate polluters in history and repeat users of ISDS – would be allowed to challenge environmental protections in Mexico by relying on the same broad corporate rights that they have used to successfully challenge public interest policies from Ecuador to Canada.
Encourages fracking: The deal preserves a NAFTA rule that effectively bars the U.S. government from determining whether gas exports to Mexico are in the public interest. This automatic gas export guarantee facilitates increased fracking in the U.S., expansion of cross-border gas pipelines, and growing dependency on climate-polluting gas in Mexico.
Offers corporate polluters a new way to weaken environmental policies: The deal’s “good regulatory practices” rules could give corporate polluters a new way to delay, weaken, or halt new environmental regulations. The rules offer corporations extra opportunities to challenge proposed regulations before they are finalized, and to ask that existing regulations be repealed. These deregulatory rules could make it harder to reverse the Trump administration’s environmental rollbacks once Trump leaves office, which could extend his polluting legacy for years.


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The Royalty Policy Committee: What You Need to Know

Looking to Thursday’s Royalty Policy Committee meeting in Denver, Colorado, one thing that is evidently clear is this “federal committee” is now completely and unapologetically at the beck and call of the oil and gas industry. After guiding the swift passing of recommendations over the course of the last three meetings that gifted fossil fuel interests with a hall pass to environmental review, former Chairman Vincent DeVito has left his post at the RPC to take a position with an offshore oil company.

Even further concerning, is the noticeable connection between the RPC recommendations – which are clearly influenced by industry lobbyists – and the recent actions taken by the Bureau of Land Management (BLM). In the days, dare we say minutes following the last RPC meeting in Albuquerque, the BLM released an information bulletin (IB) directing BLM field offices to prioritize approving applications for drilling by finding ways to avoid environmental review and involving the public – undermining the agency’s mission and responsibility to the public. Notably, the committee closed the last meeting by announcing this IB had been posted, shortly after the Onshore Working Group had presented their recommendations which mirrored the BLM’s announcement.

Unfortunately, we are likely to continue to see this industry heavy hand play out in the upcoming RPC meeting, with a recommendation that lets industry dictate where they are going to drill, as opposed to applying for a permit and letting the BLM give them permission. And as if this all could not be enough to handle, the meeting comes amidst a leasing flurry by the Trump administration, including a controversial plan to lease Colorado’s North Fork Valley, a premier sustainable farming region in the state, for expanded fracking and drilling.

Here’s what you need to know ahead of Thursday’s meeting:
What is the Royalty Policy Committee?
The Royalty Policy Committee (RPC) was formed to advise the Secretary of the Interior on royalty management issues and protect taxpayers by ensuring the public receives the full value of the natural resources produced from federal lands.

It was established under the Federal Advisory Committee Act (FACA) which, while recognizing the merits of seeking the advice and assistance of our nation’s citizens, aims to assure that the advice is relevant, objective, and open to the public, and efficient with appropriate records and within reasonable cost. The FACA requires that committee memberships be “fairly balanced in terms of the points of view represented and the functions to be performed.” However, this committee is clearly not, with groups filing a lawsuit against the Trump Administration for violating FACA.
What has happened since the last gathering of the RPC?
The last full committee meeting of the RPC was held in Albuquerque, in June. Here are some of the most noteworthy actions that have happened since then:

Revolving door spinning between Interior and industry. Vincent DeVito, who was assigned by Secretary Zinke to staff and oversee the Royalty Policy Committee left his role to join an offshore oil and gas company, Cox Oil Offshore LLC. While DeVito was chair of the RPC, the Offshore Oil & Gas Workgroup recommended DOI lower the royalty rate for offshore drilling, despite that taxpayers would lose out on billions over the life of the lease if the rate were lowered. Replacing DeVito is Scott Angelle, the Director of the Bureau of Safety and Environment Enforcement. This agency is tasked with overseeing offshore oil and gas safety, yet Angelle’s past has focused on expanding and increasing offshore drilling, including leading the push to lift the moratorium on Gulf Coast drilling put in place after the BP oil spill. Notably, elsewhere at Interior, Secretary Zinke’s Deputy Chief of Staff Downey Magallanes, who led the agency’s efforts to shrink protected national monuments in Utah, left Interior last month for a position at BP.
DOI starts leasing bonanza. DOI has been setting in motion policies and plans that would grease the wheels for massive, indiscriminate oil and gas leasing on public lands. The results are coming to life this September and December, with millions of acres up for lease, and will have impacts for decades to come. To put the sales into perspective, the proposed 2.4 million acres are about the size of Rhode Island and Delaware combined, or the size of the entire Yellowstone National Park, and may will be sold at bottom dollar prices. Parcels near Petrified Forest National Park in Arizona were leased just this week for only $2/acre.
Arctic drilling moves forward. Arctic drilling moving forward. At a previous meeting, the Alaska Specific RPC Workgroup recommended DOI rush to hold a lease sale in the Arctic National Wildlife Refuge. DOI has wasted no time, initiating scoping for an environmental impact statement on the proposed sale and moving forward with a seismic testing plan. If the seismic plan moves forward, massive ‘shaker trucks’ would be allowed into the Refuge as early as this December to conduct testing, over the objection of Fish and Wildlife Service biologists. It remains unclear if DOI will give the public an opportunity to weigh in.
DOI expected to repeal methane rule, wasting taxpayer dollars. The administration has indicated they will fully repeal the Bureau of Land Management’s Methane Waste and Prevention Rule later this month, which was established to reduce wasted natural gas from oil and gas operations on public lands and estimated to save taxpayers $800 million over the next decade. A group of 24 different conservation organizations have signed onto a letter that was submitted as a public comment for the upcoming RPC meeting. The letter aims to center a discussion on the continuing revenue lost due to natural gas waste on public lands and highlight the fact that the RPC doesn’t have any plans to address this issue.
New BLM guidance mirrors RPC recommendations. At the most recent meeting of the committee in Albuquerque, the RPC reviewed and approved three recommendations to reduce environmental review of oil and gas activities. Notably, one proposal recommended requiring all Bureau of Land Management field offices to issue Categorical Exclusions (CX) from National Environmental Policy Act review for certain drilling activities. Before the ink was even dry on this recommendation, the BLM issued an Information Bulletin to its field offices to expedite the processing of drilling permits and directing that “ to comply with NEPA in the most expeditious and appropriate manner, the BLM should first consider whether other avenues for NEPA compliance are available before preparing a new EA or a new EIS.”

A second proposal recommended that BLM limit environmental review required on wells drilled into federal minerals from private or state land. Existing policy already limits the contexts in which NEPA applies, but also recognizes that the presence of federal minerals may require environmental review, as application of the Endangered Species Act and National Historic Preservation Act. Just a week after the meeting, BLM issued a new instruction memorandum on directional drilling into federal mineral estate from well pads on non-federal locations.
What will the RPC be putting forward as recommendations in Denver?
The recommendations the RPC has entertained to date would benefit companies, not taxpayers, and that will unfortunately continue at the Colorado meeting.

Give industry free reign to drill. The Planning, Analysis and Competitiveness Subcommittee is recommending that DOI create a pilot project to allow industry to simply notify BLM when they want to start drilling rather than have BLM affirmatively approve an application for a permit to drill (ADP) as is the current law. This is similar to a proposal industry is pushing in Congress via H.R. 6088.

As for its rationale for this pilot, the RPC recommendation points to “backlogs” in permitting at two BLM field offices, the Buffalo Field Office in Wyoming’s Powder River Basin and the Carlsbad Field Office in New Mexico. These are two of the busiest field offices in the country. If there is a “backlog” in permitting, it is more often a result of operator caused delays than of BLM staff inaction. Imposing time limits and “streamlining” the process should not help applicants who simply do not submit complete and accurate information to the BLM in the first place. BLM’s analysis of permit times shows that much of the delay is because the operator doesn’t submit a complete application.

Removing government review of site-specific applications puts at risk surface land owners, communities, wildlands and other values that can be harmed by oil and gas infrastructure and development.

Let companies set their own prices. The Fair Return and Valuation Subcommittee is recommending that DOI pursue a rulemaking to transfer the authority to set a value for public minerals from the Interior to private parties, essentially allowing producers to determine their own valuation methods for the coal, oil and gas they are drilling. This would undoubtedly result in the public not receiving fair value for the resources they own and would diminish transparency: producers could simply claim that their valuation methods are proprietary and should be kept secret.

What should the Royalty Policy Committee be recommending?
Current leasing and royalty practices are providing hidden subsidies to fossil fuel companies. This contributes to unfair compensation for the American public, and can tie up federal lands, often for decades—which means they’re neither being developed for energy nor managed for other uses that may be even more suitable for those lands, like conservation or recreation.

To encourage DOI to fix some of these problems, The Wilderness Society submitted a  petition last fall under the Administrative Procedure Act (APA) asking for reform of the oil and gas leasing program. The APA gives citizens the right to request action from a federal agency to issue, repeal, or amend a rule, and entitles them to a prompt response. However, our petition has gone unanswered from the DOI to date.

But, if the Royalty Policy Committee needs a place to start, we recommend they consider our petition, which points out how the current oil and gas leasing system is broken and proposes solutions to protect American taxpayers:

Inadequate reclamation bonds. These bonds should provide funding for cleaning up the damage to public lands from oil and gas development, but the funds required are nowhere near sufficient.
Leasing of low-potential lands. These lands are less likely to be developed.
Lengthy and lax lease suspensions. Federal leases are issued for ten years—longer than most leases issued by states or private parties—so the industry already has ample time to develop leased lands. The current system is simply providing even more ways to extend leases without revenue or development. As a result, BLM has failed to recover more than $82 million of rental payments, with more than 3.38 million acres of federal minerals in suspension.
Below-market royalty rates. Royalty rates are currently only 12.5 percent, far lower than state and private land rates.
Below-market rent. Oil and gas producers pay only a dollar and change annually for each acre leased.
Low minimum-lease bids. At just $2 per acre at a sale, these bids allow oil and gas companies to purchase and tie up lands they do not intend to use. A meaningful bid would incentivize purchases where companies intend to generate energy and revenue for the American taxpayer.
Unjustified reinstatements of lapsed leases. Even after leases are cancelled due to failures to pay rent, it is relatively easy for companies to get them put back in place through a “reinstatement” process, giving them another way to continue to benefit from public lands without either developing energy or providing a return to taxpayers.

This article was originally published by The Wilderness Society. 

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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.

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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Trump proposal to weaken project reviews threatens the ‘Magna Carta of environmental law’

Building the U.S. Interstate highway system in the 1950s and 60s is often cited as one of government’s great achievements. But it had harmful impacts too. Many city communities were bulldozed to make space for freeways. Across the nation, people vigorously objected to having no say in these decisions, leading to “freeway revolts.”

This outcry, coupled with the growing environmental movement, gave rise to the idea – revolutionary at the time – that agencies should take a hard look at the environmental impacts of their actions, consider reasonable alternatives and allow community input. The National Environmental Policy Act (NEPA), enacted in 1970, codified these principles and allowed citizens to sue if they believed government had not complied. Because it represents a turning point in thinking about environmental protection, NEPA has been called the “Magna Carta of environmental law.”

Despite NEPA’s demonstrated successes, critics have attacked it for years, usually based on anecdotes claiming that lengthy environmental reviews caused project delays. President Donald Trump’s infrastructure initiative is the latest example. And on May 3, 2018, the Trump administration announced that it will soon propose changes to the rules that guide federal agencies carrying out NEPA reviews.

As attorneys who held senior positions at the Environmental Protection Agency during the Obama administration, including managing the agency’s NEPA office, we have extensive experience with NEPA reviews. Expert studies reveal a vast disconnect between the evidence, which shows that NEPA is not the cause of project delays, and the sweeping changes that NEPA critics are proposing. This disconnect reveals that current proposals aren’t really about speeding up projects, but are instead part of a broad deregulatory agenda that prioritizes business interests over public benefits from environmental protection.

Poster opposing a planned freeway in Washington, D.C., that was ultimately canceled in 1977. Greater Greater Washington, CC BY
NEPA reviews aren’t the cause of project delays
Over more than four decades, NEPA has helped government agencies make smarter choices about public infrastructure, reducing damage to both natural environments and communities and avoiding the costs of correcting ill-considered projects.

For example, in the 1990s Michigan’s state transportation agency wanted to build a four-lane highway across a huge swath of important wetlands. Using NEPA, citizens forced the state to consider alternatives. Ultimately the state decided to expand an existing highway instead, dramatically reducing environmental harm and saving US$1.5 billion. Similar stories have occurred across the country.

Critics have long used “NEPA is slowing projects down!” as their rallying cry. Independent experts have looked at the evidence and reached a different conclusion.

The most authoritative independent studies were done by the Government Accounting Office in 2014 and the Congressional Research Service in 2011 and 2012. They found that the vast majority of projects have very streamlined reviews.

About 95 percent of all projects subject to NEPA go through a very short process called a “categorical exclusion” that usually takes from a few days to a few months. Another 4 percent have a short and straightforward review, called an “environmental assessment,” that usually takes between four and 18 months. Less than 1 percent of projects are subject to a full review, which is called an “environmental impact statement.”

Typically, these are large-scale initiatives such as a new highway, a major dredging project or a multistate pipeline. You wouldn’t know it from rhetoric in Washington, but the sweeping changes being proposed to NEPA are focused on less than 1 percent of projects.

These independent investigations also found that NEPA reviews are not the reason that the biggest projects take time. State and local issues, such as funding shortfalls, changing priorities and local controversy, are the most significant influence on whether a project moves forward quickly or takes longer than anticipated. Of course, there are examples where environmental reviews took too long, but in many cases these reviews started and stopped for reasons unrelated to environmental issues.
Not about efficiency
In fact, by requiring agencies to consider alternatives to their envisioned projects, environmental reviews can speed things up by identifying better options and solving problems that could be costly or cause delays in the long run – a common issue in highway construction, for example. As our shop teachers advised, “Measure twice, cut once.” This is one reason why federal agencies that use NEPA most, including the Department of Transportation, the U.S. Forest Service and the Department of Energy, have long voiced support for it.

Enshrining unsupported policy in statutes passed by Congress makes those choices much harder to fix. Here’s what the president wants to do that would require changing the law:

– Take environmental agencies out of NEPA reviews. Congress recognized that some federal agencies are focused on building things, like highways or energy projects, and that protecting the environment is not their mission or area of expertise. That’s why it gave EPA a central role in NEPA studies by other agencies.

EPA involvement has helped reduce adverse environmental impacts through early up front coordination, without adding time. The agency routinely produces its comments within 30 days. The Trump infrastructure plan proposes to eliminate EPA’s review role.

– Cut a huge hole in consideration of alternatives. The Trump proposal would insert waffle words, like provisions limiting alternatives to those that the applicant finds “economically feasible” or are within the applicant’s “capability,” into NEPA’s requirement for agencies to consider reasonable alternatives. This approach allows applicants to avoid considering options they don’t like.

Consideration of alternatives is the heart of NEPA. Thinking hard about how projects can be done with less environmental damage – for example, by reusing an already developed site instead of paving over open space – improves designs, saves money and builds public support.

– Set the stage for getting rid of NEPA completely. In case anyone misses the point, the Trump plan allows some projects to bypass all environmental reviews on a “pilot” basis. A recent report by the conservative Heritage Foundation follows the same playbook by calling for repeal of NEPA.

Pete Brunner of Falmouth, Maine, casts for Atlantic salmon on the Penobscot River in 2006. A NEPA review led to denial in 1997 of a permit for a major hydropower plant on the Penobscot after the study showed that it would harm salmon. AP Photo/Robert F. Bukaty, File
Change NEPA practice, not the law
Over the last 45 years federal agencies have improved their processes for carrying out NEPA reviews, through steps such as providing more up front consultation. The Obama administration was continuing that effort with a number of consensus efficiency improvements that show promise for speeding things up without undercutting NEPA’s important goals.

By requiring government agencies to think before they act, NEPA has avoided countless harmful and ill-considered ideas. As the secretary of energy said in 1992, after halting a project that would have cost billions, “[T]hank God for NEPA because there were so many pressures to make a selection for a technology that might have been forced upon us and that would have been wrong for the country.”

Federal agencies should keep finding ways to implement NEPA more efficiently. What the federal government shouldn’t do is make enormous statutory changes based on incorrect claims about a fraction of 1 percent of projects – or disregard the lesson of the last 45 years that the most efficient choice is to build things right the first time.
About the authors: Janet McCabe served as Deputy Assistant Administrator for the U.S. Environmental Protection Agency’s Office of Air and Radiation (OAR) from 2009 to 2013, and as Acting Assistant Administrator for OAR from 2013-2017. She is a senior law fellow at the Environmental Law and Policy Center and a member of Duke Energy’s Indiana Citizens Advisory Board. Cynthia Giles served as Assistant Administrator for the U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance from 2009 to 2017. She is currently the Director of Strategic Initiatives and Executive Fellow at the Energy & Environment Lab at the University of Chicago.
This article was originally published on The Conversation. To read the original article, please click here.

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Tribes Challenge Forest Service Approval for Toxic Open-Pit Copper Mine on Sacred Land

Tucson, AZ (April 12, 2018) — The Tohono O’odham Nation, the Pascua Yaqui Tribe and the Hopi Tribe filed a complaint in U.S. District Court today challenging the approval by the U.S. Forest Service of a plan by Hudbay Minerals Inc. of Canada to develop a sprawling toxic open pit copper mine on public land. The tribes are represented by Earthjustice, a non-profit environmental law firm.

The proposed Rosemont Copper Mine would be located about 30 miles south of Tucson in the Santa Rita Mountains, a place of great cultural and ecological significance. The tribes, representing more than 50,000 enrolled members, have resided in this region since time immemorial and have a deep connection to the land and wildlife. The proposed mine site lies within the tribes’ ancestral homelands and contains numerous sacred sites, ancestral villages and burial grounds. The mine site is also home to the endangered jaguar, an animal of spiritual significance to the tribes.

The proposed mine, to be developed by Hudbay Minerals Inc., would be devastating to these cultural and natural values. The mine would transform 3,653 acres of National Forest land that is publicly-owned and of important cultural and religious significance to the tribes into an industrial mining zone. The mine would require the excavation of an open pit over a mile wide and a half-mile deep to be served by roads, ore processing facilities, and groundwater pumping. The pit will be surrounded by waste piles containing over a billion tons of waste rock and tailings.

The Forest Service admits that the damage to cultural resources would be “severe, irreversible and irretrievable.” It would destroy 82 historic places and desecrate at least 31 known gravesites, though numerous others are likely to be discovered during the excavation process. Despite these impacts, the Forest Service approved the Final Environmental Impact Statement last June to allow the mine to proceed. 

In total, a dozen Arizona tribes have expressed concerns with this mine project, participating in meetings, public hearings, consultations. The Tohono O’odham and Pascua Yaqui Tribes have passed formal resolutions of opposition in 2009 and 2013, respectively. The Tohono O’odham Nation also produced a short film, Ours is the Land, which details the significance of Ce:wi Duag (Santa Rita Mountains) and the irreparable harm the mine would cause.

“The Rosemont Copper project would destroy cultural and archeological sites on our traditional lands, including the graves of our ancestors,” said Tohono O’odham Nation Chairman Edward D. Manuel. “Consider what it would be like if a foreign company proposed excavating Arlington National Cemetery. All Americans treasure this cemetery, just like our tribes treasure the land this mine will desecrate.”

Pascua Yaqui Tribe Chairman Robert Valencia said, “The proposed Rosemont Copper Mine would defile our heritage, and it also threatens our future. The mine would destroy lands, animals, and plants that have great spiritual significance to us. And, its impacts to our region’s groundwater resources poses a danger that will long outlast any mining operations.”

“The Hopi Tribe continues to hope that someday a Forest Service supervisor’s decision will reflect the Forest Service’s listening to tribes regarding Sacred Sites and Traditional Cultural Properties, respect the natural water, wildlife, and night sky values of the tribes, and assist the Forest Service in emerging from the 19th century into the 21st,” said Hopi Tribe Vice Chairman Clark W. Tenakhongva.

The mine also would cause permanent damage to precarious groundwater resources in the arid region. Seeps and springs which are not only sacred to the tribes but also support native plants and wildlife, would be depleted. After the copper is gone and the company abandons the mine, a toxic lake would form in the pit, creating a hydraulic sink that will deplete streams, collect polluted runoff and siphon water from the regional aquifer. This toxic lake will never be reclaimed or remediated.

“This mine will have devastating impacts on sacred lands long used by the tribes for prayer, ceremonies, and to connect with their past and their ancestors,” said Heidi McIntosh, an attorney with Earthjustice. “The Forest Service should have rejected Hudbay’s request to use these sacred lands as a dumping ground for toxic waste rock, mine tailings, and processing plants. Instead, the Forest Service bowed to the mining company and then denied it had the authority to protect this uniquely important place. We’re asking the Court to right this injustice.”

The complaint is based on the Forest Service’s violations of the Forest Service Organic Act, the National Environmental Policy Act, and the National Historic Preservation Act. The tribes are asking the Court to reverse the Forest Service’s decision and enjoin construction of the mine.

Read the legal document.

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Army Corps Rushes Pebble Mine Permit, Stifles Public Comment

The Alaska District of the U.S. Army Corps of Engineers published today a Notice of Intent to prepare a Draft Environmental Impact Statement that will evaluate the potential social, economic, and environmental impacts of the proposed Pebble Mine.

(Spoiler alert: based on a three-year, twice peer reviewed scientific assessment of the potential mining impacts on the Bristol Bay Watershed conducted by the U.S. Environmental Protection Agency (EPA), we already know those impacts will be “significant” and potentially “catastrophic.”)

Pebble Mine is the largest and most contentious mine ever proposed in Alaska. Because if its location at the headwaters of the world’s greatest wild salmon fishery in Bristol Bay, Pebble Mine risks the economic and cultural lifeblood of the region: its salmon. Salmon support a $1.5 billion annual commercial fishery and 14,000 jobs. Salmon have also supported a subsistence-based way of life for Alaska Natives for over 4,000 years.

It’s no wonder that the mine is opposed by 80 percent of Bristol Bay’s residents and 85 percent of its commercial fishermen—not to mention Alaska tribes and corporations, businesses, sportsmen, chefs, jewelers and conservation groups. The rest of the world is against it too: in 2016, the IUCN World Conservation Congress virtually unanimously adopted a motion opposing the Pebble Mine.

With a project this big—and this controversial—the Army Corps must take the time necessary to properly and adequately assess the proposal, reasonable alternatives, and the full-scope of potential impacts. This means conducting an open and robust permitting process.

If today’s notice is any indication, that will not be the case.

The Army Corps’ permitting schedule is geared more toward fast-tracking Pebble’s permit rather than taking a “hard look” at the project as required by the National Environmental Policy Act (NEPA).

For example, the Army Corps is:

Restricting the scoping comment period to a mere 30 days. By contrast, the scoping comment periods for three other projects in Alaska for which the Army Corps is the lead permitting agency ranged between 75 to over 100 days.
Scheduling only a handful of public hearings in the Bristol Bay region—and only one of those in a community downstream of the Pebble Mine site. This departs from the precedent set by EPA, which conducted hearings across Bristol Bay, Anchorage and in the Pacific Northwest before finalizing its Bristol Bay Watershed Assessment.
Limiting actual public participation at certain hearings. At hearings in Dillingham, Homer, and Anchorage—locations where anti-Pebble sentiment and turn-out is particularly high—”an open microphone forum will not be provided.” While the Army Corps will not allow the public an opportunity to speak, it will afford the Pebble Limited Partnership an opportunity to show a video.
Rushing to complete the entire permitting process in less than two years— shorter than any other large-scale development project in Alaska. Based on the Army Corps’ current timeline, Pebble could have its permit by early 2020.

The Army Corps is racing ahead despite a formal request from Bristol Bay leaders—including the Bristol Bay Native Corporation, Bristol Bay Native Association, United Tribes of Bristol Bay, Nunamta Aulukestai, and Bristol Bay Economic Development Corporation—not to initiate the NEPA process until after Pebble presents sufficient environmental baseline and economic data that would enable the Army Corps – and the public—to properly evaluate the project.

Bristol Bay leaders are joined by Alaska House Speaker Bryce Edgmon, the Alaska Department of Natural Resources, and the Pacific Seafood Processors Association asking the Army Corps to extend the comment period to 120 days, to include public hearings throughout the Bristol Bay region and the Pacific Northwest, and to allow meaningful public participation.

If the Army Corps is truly committed to an “open” and “transparent” process, then it should slow down now and respond to the requests for additional time, outreach, and public engagement.


Taryn Kiekow Heimer is Deputy Director of NRDC’s Marine Mammal Protection Project, Nature Program.

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Trump’s Infrastructure Scam Will Gut Environmental Protections To Benefit Corporate Polluters

In his first State of the Union address, President Donald Trump is expected to announce a long-awaited plan to upgrade the nation’s infrastructure and call on the U.S. Congress to work with his administration on related legislation. Leaked versions of the infrastructure proposal, however, show that this is not a plan to put Americans to work rebuilding crumbling infrastructure. Instead, it’s a full-scale gutting of environmental protections to benefit corporate polluters and steamroll American communities.

As detailed in the leaked proposal, the Trump administration’s plan would require fundamental changes to no fewer than 10 bedrock environmental laws that protect the nation’s clean air, clean water, wildlife, and national parks. The plan would hollow out the National Environmental Policy Act (NEPA), the law that requires federal project sponsors to consult with stakeholders who would be affected by new projects and identify ways to reduce their impact on the environment, public health, and cultural resources. The Endangered Species Act is also in the crosshairs, as several provisions would prioritize new development over the protection of wildlife that is on the brink of extinction. The Trump administration proposes significant changes to the Clean Air Act and Clean Water Act to make it easier for corporations to break ground and avoid inconvenient air and water quality protections. The proposal even includes some mystifying provisions, such as one to give Secretary of the Interior Ryan Zinke unilateral authority to site natural gas pipelines in national parks.

The Trump administration will attempt to brand these environmental attacks as an effort to improve the infrastructure permitting process. In actuality, they are attempting to steamroll hardworking Americans by silencing or disregarding communities’ voices in determining where pipelines, highways, and other large projects should be built. Example after example shows the foolishness of that approach for the environment and public health. One only needs to look at certain communities that were built 50 years ago—before NEPA and other environmental laws existed—to see the detrimental impacts of this type of decision-making. In a particularly stark example, a low-income community in Orlando, Florida, continues to suffer the consequences of short-sighted transportation policy decisions that left the neighborhood surrounded by highways, isolated from the rest of the city, and trapped in a haze of air pollution.

While the Trump administration is proposing measures to sell out our air, water, and national parks to corporate polluters, it is ignoring tangible steps that it could take without gutting environmental protections. An important first step would be to implement laws already on the books. In 2012 and 2015 respectively, Congress enacted two pieces of legislation—the Moving Ahead for Progress in the 21st Century Act (MAP-21) and Fixing America’s Surface Transportation (FAST) Act—that contain provisions aimed at expediting the permitting process that are not fully implemented, such as measures to reduce duplication; track the progress of project delivery; integrate mapping and other data tools with fiscal management systems; and facilitate efforts to align historic preservation regulations. Congress also created the Federal Permitting Improvement Steering Council to manage the permitting process for certain complex projects.

Implementing new laws takes time, and layering new provisions only makes it harder. In March 2017, the Department of Transportation’s (DOT) inspector general found that DOT delayed implementing a significant number of MAP-21’s reforms because they had to stop midstream and comply with additional provisions mandated in the FAST Act. Rather than understanding and deploying the tools it already has, the Trump administration has jumped to the nuclear option—radical environmental rollbacks that grease the process for corporations at the expense of air and water quality and wildlife.

The best way for the Trump administration to speed up permitting without sacrificing environmental protection is to adequately fund the relevant federal agencies involved in the permitting and environmental review process. Without funding, the federal agencies cannot hire and train staff to complete environmental reviews or invest in technology that provides efficiencies. In DOT’s “how-to” guide for environmental reviews, the agency notes that limited budgets and staff resources preclude many regulatory and resource agencies from assigning staff to work on reviews when they may already be strained to process pending workload in a timely manner. Instead of funding these professionals to provide the best information to make informed decisions, the Trump administration has proposed slashing agency budgets and undertaken the greatest assault that has ever been seen in the history of this country on these agencies that protect clean air, clean water, wildlife, and national parks.

With such a public record of promoting the interests of corporate polluters over communities and the environment, no one should be fooled by Trump’s infrastructure scam. It is little more than a Trojan horse designed to gut the environmental protections that are necessary for the clean air, clean water, wildlife, and national parks that truly make America great.

Christy Goldfuss is the senior vice president for Energy and Environment Policy at the Center for American Progress. Alison Cassady is the managing director for Energy and Environment Policy at the Center

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Earthjustice: The Trump Administration Wants to Roll Back Fracking Standards

Fracking has disrupted the landscape and the life of North Dakota. Theodora Bird Bear has lived in the town of Mandaree on the Fort Berthold Indian Reservation for most of her six decades. When the retiree moved into her current home in the ‘80s, she found juneberries, plums, buffalo berries, chokecherries and turnips growing wild on her property.

“These natural foods which our tribe relied on prior to the 1950s are important to me as a tribal member in our original homelands,” Bird Bear wrote last year. “This landscape is the last of our historic pre-treaty lands.”

Now, nearly 1,000 active oil and gas wells have industrialized the delicate, semi-arid ecosystem all around Bird Bear.

“Sadly, there are very few butterflies visible, especially the monarch butterfly, in the past nine years of the intensive mineral extraction all around my home,” says Bird Bear, who is a member of Fort Berthold Protectors of Water and Earth Rights (POWER). “There are also fewer birds around. The continuous jet-like sound from the frack well sites around my home drowns out the bird songs in the spring and early summer.”

“I am worried about the cumulative and adverse impacts to air and water in Mandaree and Fort Berthold,” she adds. “The secret, proprietary nature of fracking means tribal members like myself aren’t able to fully protect our tribal lands in the event of a toxic fracking spill.”

This week, Earthjustice and our clients, including Fort Berthold Protectors of Water and Earth Rights, went to court to push for more information and more protection for Bird Bear and others living amid fracking operations. We challenged a Trump administration effort to roll back common sense standards around fracking.

These standards were adopted in 2015 by the Bureau of Land Management to protect places like Fort Berthold from the chemical contamination and water pollution that can result when fracking goes awry.  The agency crafted this rule after five years of research and conducting public and tribal outreach sessions across the country—including in North Dakota, where Bird Bear testified. It was the first federal effort since the 1980s to update the agency’s standards for the thousands of fracking operations that occur each year on federal and Indian lands.

But the regulation never went into effect. Litigation by industry groups and some states delayed it. And at the end of 2017, under new leadership from the Trump administration, BLM nixed its own rule.

“BLM recognized in 2015 it needed to take these basic safety precautions in order to meet its responsibilities as the steward of public lands,” said Michael Freeman, one of the Earthjustice attorneys bringing the lawsuit.  “By repealing the rule, BLM is abandoning its duties to the American public as well as to native American communities facing the threat of fracking.”

Earthjustice attorney Mike Freeman at an oil rig in Erie, Colorado


The Trump administration justified the repeal in part by arguing that states and tribal are doing an adequate job of managing oil and gas development by themselves.  But the reality is that fracking policies vary widely from state to state, and particularly from tribe to tribe, Freeman says. Many tribes don’t have fully-developed tribal regulatory systems to address oil and gas development, or the resources to hire experts who can assess whether a fracking operation is likely to contaminate groundwater or cause a well blowout.

Bird Bear testified that she does not believe the Fort Berthold Tribal Council has the clout to enforce regulations concerning oil and gas extraction based on her experience with lax enforcement of a tribal regulation governing the wasteful flaring of natural gas produced at oil wells.

“After 10 years of oil and gas revenue received by the tribal council, it’s also unlikely they will have political will to stand up for the health of tribal members on Fort Berthold when it comes to oil and gas pollution,” she said.

Several federal laws—including the Federal Land Policy and Management Act, the Mineral Leasing Act—charge BLM with ensuring that development on federal lands benefits the public welfare and prevents unnecessary degradation of resources like water quality.  And under the Indian Mineral Leasing Act, the Secretary of the Interior also has a trust responsibility to ensure that oil and gas extraction on tribal lands is in the best interest of tribes and individual tribal members like Bird Bear.

The 2015 fracking rule set several commonsense standards to protect groundwater, surface water, wildlife, and public health and safety. It would have required oil and gas companies to disclose the chemicals they used in fracking. Companies would have had to store fracking waste in closed tanks, not pits—the latter method can kill livestock or wildlife that mistake the pit for a convenient water source, Freeman says. And the operators would have had to ensure the structural integrity of their wells, in addition to mapping nearby wells to ensure that they wouldn’t hit them while drilling.

Fracking on BLM land in the Colorado River Valley Field Office of western Colorado


On behalf of our clients—which also include Diné Citizens Against Ruining Our Environment, Center for Biological Diversity, Earthworks, Sierra Club, Southern Utah Wilderness Alliance, The Wilderness Society, and Western Resource Advocates, Earthjustice’s lawsuit asks the court to reinstate the 2015 rule on the grounds that its rollback was arbitrary and capricious.

Thanks to BLM’S abrupt reversal of its own fracking laws, tribal land owners are denied the right to assure protection of their ground and surface water in the semi-arid lands of Fort Berthold.  Bird Bear says BLM’s failure to enforce strong regulatory protections on nearby wells has endangered her health. But she’s not giving up on protecting Fort Berthold.

“We have consistently remained anchored here in our pre-treaty homelands,” she testified. “We stayed true to our land and ourselves – and this is our strength.”

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