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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.

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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Congress Curtails Public Input on Public Lands

This week in D.C., Congress, in alignment with the wishes of the oil and gas industry, move again to undermine one America’s best ideas: public lands. Specifically, the House Natural Resources Committee are marking up a set of bills that would effectively eliminate the public’s right to participate in most decisions regarding public land use for oil and gas extraction. These bills also align with a drastic new policy from the Bureau of Land Management (BLM) that significantly curtails public participation. These actions are the products of a persistent effort by the oil and gas industry to bulldoze any federal impediments to maximal profit, whether endangered species habitat, safeguards against catastrophic accidents, or the right of Americans to be involved in the management of our shared natural heritage.

Our ability as citizens to participate in federal land management decisions and other federally-linked projects that could impact the environment is one the foundations of the National Environmental Policy Act (NEPA). Signed into law by President Nixon in 1970, NEPA is a bedrock environmental law that requires federal decision-making to be conducted deliberately and thoughtfully by taking stock of a project’s potential environmental and social impacts, as well as legal conflicts, using the best available science and considering the positions of key stakeholders and the general public while ensuring the public is informed of federal actions. It establishes processes that require time and expertise to complete, which irks the oil and gas industry, but ensures the U.S. government uses the best information available. In addition to NEPA, in 1976 President Ford signed the Federal Land Policy and Management Act, adding additional measures enshrining the public’s right to participate in how public lands are governed.  

But four pieces of legislation being marked-up tomorrow would keep the public from engaging in many impactful federal land management decisions regarding oil and gas drilling. These bills had their first Congressional hearings on June 6th, where a number of witnesses for the majority championed broad exemptions from NEPA. Coincidentally, on the same day across the country in Albuquerque, a leading oil and gas industry representative with the Western Energy Alliance spoke (see pgs. 10 – 11) at the Interior Department’s Royalty Policy Committee Meeting, recommending BLM issue agency guidance to greatly expand the use of categorical exclusions (CXs) for oil and gas activities, the same type of waivers from NEPA Congress was considering legislating. And if that wasn’t enough of a coincidence, BLM issued an Information Bulletin—no quick task—adopting Western Energy Alliance’s recommendations the same afternoon.

The four bills being marked up tomorrow would strengthen and calcify the recommendations offered by the Western Energy Alliance and adopted with remarkable expedience by the Interior Department. Given how closely all of these processes neatly align, it would be foolish not to construe that the Trump administration and Republican leaders of the House Natural Resource Committee are working in concert with the oil and gas industry to advance these measures designed to eliminate the public’s right to participate on how public lands are managed.

The NEPA elements these policies attack are in place to ensure the lands we, as Americans, all own are managed with our interests in mind. By maximizing the data available to civil servants, they help shepherd good decisions—decisions that could impact a community or an ecosystem for decades—setting a global model for good governance and resource management. But such principles are anathematic to the oil and gas industry, which has powerful allies all too ready to help. Those who care about sustainable use of our natural heritage should stand against these regressive policies.

The bills the House’s Natural Resources Committee is considering tomorrow each take a distinct whack in dismantling key aspects of NEPA:

H.R. 6087 (Rep. Liz Cheney of Wyoming) – Authorizes the Secretary of the Interior to attach a highly burdensome fee for public protests for oil and gas lease sales and other agency actions. The protest process is designed to ensure the public can point out errors in the government’s reasoning and give it a chance to correct. Protest filings that approach a thousand pages have occurred, given that unfortunately the BLM have often failed to include critical data. A thousand-page protest over one lease parcel would incur a fee of over $5,000 under Rep. Cheney’s bill, a.k.a. the Removing Barriers to Energy Independence Act. Clearly, this bill would have a chilling effect on a valuable element of the public input process.  But it would also have the perverse incentive to encourage the agency to issue incomplete decision records, put the financial onus on the public to correct the record.
H.R. 6106 (Rep. Stevan Pearce of New Mexico) – Expands the use of CXs in the Interior Department’s oil and gas leasing program. Rep. Pearce’s Common Sense Permitting Act would arbitrarily expand CX applicability, and, for potentially impactful projects, eliminate the public’s right to participate in the NEPA review as well as BLM’s discretionary ability to implement solutions to avoid needless resource use conflicts.
H.R. 6088 (Rep. John R. Curtis of Utah) – Severely hamstrings the Interior Department’s ability to review applications to drill oil and gas wells on public lands. This is often the only juncture at which the government looks at specific sites closely, a requisite step for BLM to adequately evaluate—and prevent—harm from a new well and associated activities.
H.R. 6107 (Rep. Stevan Pearce of New Mexico) – Eliminates federal oversight of oil and gas activities conducted on non-Federal surface estate to access subsurface mineral estate that is less than 50 percent Federally owned. Even if we are minority owners, those mineral resources still belong in-part to all Americans—the federal government should be allowed to meet its responsibility to manage them in trust for the public interest.

In addition, to the legislation, BLM’s Information Bulletin (IB) IB 2018-61 hews to the same theme, effectively constructing a flow chart for avoiding NEPA analysis of oil and gas leasing and development decisions. Between this policy and a previously updated leasing policy (see Instruction Memorandum 2018-34), federal land managers are now under instruction to:

Preclude public input and skip rigorous environmental review for the majority of oil and gas activities on our public lands. This policy has land managers relying on broad Land Use Plans to check the NEPA box, despite their inadequacy for identifying site-specific resource or human conflicts.
Emphasize the application and issuance of categorical exclusions (versus applying a more rigorous and transparent review process).
Stop reviewing certain CXs for circumstances that should automatically preclude their use under law.  For instance, even if a project might endanger critical lands or endangered species, land managers are encouraged to look the other way. 
Expand use of Master Development Plans to evaluate and approve multiple applications to drill, again foregoing crucial site-specific analysis. And it encourages civil servants to actively avoid opening public comment periods unless they are unambiguously required by law.
Emphasis on the issuance of applications to drill even without a requisite site inspection, which is critical to verify whether wildlife and land resources might be unduly impacted.  Hence, land managers must rely either on inadequate data and/or the word of the oil and gas applicant.

 
Bobby McEnaney is Senior Deputy Director for NRDC’s Western Renewable Project. In his work, Bobby focuses on promoting the sustainable development of renewable energy resources on public lands while working to protect the nation’s lands from the dirtier energy processes that threaten them.
 

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Of Course, It’s OK, We Are Only Lying About NEPA

There are few principles as basic to Americans as the right to participate in decisions when the federal government is going to affect the environment or economy of a community. Because this is inconvenient for developers they have enlisted the Congress and the White House in trying to cripple that right that is enshrined in the National Environmental Policy Act (NEPA). There have been over 60 separate bills introduced this year to scale it back NEPA and on June 6, 2018, another hearing on weakening NEPA is scheduled. This hearing is based on the theory that oil and gas drilling and fracking on public lands would never have a more than insignificant impact on the environment, ever.

Over the past several months, the propaganda about the required environmental reviews that agencies conduct before projects has been overwhelming. I wrote a blog on one of those misrepresentations here. The major theme of the critics of environmental reviews is that despite its almost 50-year history, government projects, private fossil fuel development, and infrastructure has been stymied, mainly because of the National Environmental Policy Act. This is obviously untrue, based on the growth of our economy that included becoming a net exporter of energy during President Obama’s term. I will use this blog to critique several recent poster children of NEPA and note the misstatements. (Or, if you prefer, “lies.”)
Poster Child #1 Bayonne Bridge
CNBC did a story about the delays President Trump cited for road and highway projects, and, at the behest of the White House, spotlighted the case of the Bayonne Bridge raising, which critics said was slowed because of permitting and environmental reviews. The CNBC investigative tory, if you watch the short clip here, found that weather and continuing the use of the bridge during construction were the drivers of the delays. The claims of a “10-year” review, were off base: It only took 26 months.
Post Child #2 Anderson Bridge
On February 13, in conjunction with its federal infrastructure plan rollout, the White House published a blog post titled “Washington Will No Longer be a Roadblock to Rebuilding America.” The blog uses the long delay of the Anderson Memorial Bridge project in Boston as an example of how federal environmental reviews and federal permitting is hindering infrastructure development across the country. The problem, once again, is that federal environmental permitting had nothing to do with this project. The Anderson Memorial Bridge project was funded completely by the State of Massachusetts and did not alter the existing waterway along the Charles River, so at no point was federal-level environmental permitting needed for this project. The implication is clear: While the White House has come up with a mythical conclusion, it failed to find an example of even one project that fit that conclusion.
Poster Child #3: Dredging the Port of Corpus Christi
This is a typical scapegoating NEPA story. Politicians often get authorization for projects (and local press about the project) but fail to get the Congress to “appropriate” money to build them. Authorizations mean nothing without appropriations. Often, rather than admit they were unable to get real money, members will put the blame on environmental reviews. On March 6, 2018, according to the Corpus Christi Business News, officials representing the Port of Corpus Christi met with their former governor and now Secretary of Energy Rick Perry about the need for federal funding for the dredging of the Port of Corpus Christi. The environmental reviews for this project weren’t mentioned.

However, the following week, Perry testified before the Senate Commerce Committee about the president’s infrastructure package loaded with anti-NEPA provisions. He didn’t urge lawmakers to fund the dredging project, as the port officials had requested. Instead, he claimed the reason the project failed to go forward wasn’t money, but bureaucrats:

“This isn’t a matter of we’re coming up here, or they’re coming up here, and asking for more money, they’re asking for federal agencies to basically get out of the way, to give them approval, so I think that’s one of the things that the president is talking about.”
This will be sad news to the Port which said the problem wasn’t NEPA, but the need for 225 million federal dollars.

Stories like this can be repeated a million times, or rather 97 billion times. A Republican memo to the Transportation and Infrastructure committee about funding of Army Corps of Engineers projects, noted that there are $97 billion of projects ready to go, but the Corps’ construction budget is only $5 billion a year. The problem isn’t NEPA; it’s where is the $92 billion.

NRDC is working to protect NEPA, one of the landmark environmental statutes. The main goal of NEPA is assuring that the federal government looks before it leaps. It requires the federal government, when it is doing something to your community, to allow the public and local officials a chance to comment and these comments often lead to better projects. It should not be gutted as a diversion from the real problem addressing our infrastructure.

I recently was on a podcast with a Nick Goldstein, Vice President of Regulatory & Legal Issues of the American Road & Transportation Builders Association. I was well armed to defend NEPA from attacks by the road builders, but instead found myself nodding along while Goldstein made the same point I did: The real problem with infrastructure is the lack of federal financing.

Scott Slesinger is the Legislative Director for the Natural Resources Defense Council (NRDC). He works with NRDC staff to develop strategies for advancing environmental legislation and lobby Congress on behalf of the organization. 

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The Royalty Policy Committee: What You Need to Know

 

This week, a federal committee selected by Interior Secretary Ryan Zinke and stacked with industry interests aligned with Interior’s well-known public lands sell out agenda will meet in Albuquerque, New Mexico for the third time since being re-chartered by Secretary Zinke in 2017, to conjure up more ways to exploit public lands for the benefit of fossil fuel interest at the expense of taxpayers, clean air and water and conservation. New Mexico is currently the recipient of the second largest amount of federal royalty revenues and this is an important source of revenue for the state. So, when the RPC makes recommendations to allow more royalty rate exceptions, and to let industry set their own rules, New Mexico feels the impact.

The theme of keeping the public out and industry in will unfortunately continue into this next meeting, with the addition of two folks who have close relations to the Trump administration to closed-door subcommittee meetings and recommendations to cut out public review opportunities, limit evaluation of environmental consequences, and make it easier for companies to be excused from their requirements to pay royalties for offshore drilling. Here’s what you need to know ahead of next week’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.”
What has happened since the last gathering of the RPC?
The last full committee meeting of the RPC was held in Houston, in February, a number of recommendations were put forward. Here are some of the most noteworthy actions that have happened since then:

1. New friends allowed in the room. The Department of the Interior (DOI) has faced significant criticism for making little effort to include the public or taxpayer interests in the committee. In response, DOI has invited the conservative Heritage Foundation and Americans for Tax Reform to attend subcommittee meetings that are otherwise closed to the public. Neither were added to  the full committee or designated alternates nor were they formally named to a subcommittee, as was done for American Petroleum Institute’s Emily Hague. Rather they are both said to be representing the public interest and serving as subject matter experts. Notably, both organizations have nothing on either of their websites about the Royalty Policy Committee or royalty policy matters. Meanwhile, the committee and subcommittees meeting summaries are being posted weeks after the meetings take place, shrouding the process in secrecy and, giving the public little detail into the actions or recommendations that take place.

2. Artic leasing advanced. At the last meeting, the Alaska Specific Workgroup recommended DOI rush to hold a lease sale in the Arctic National Wildlife Refuge. DOI has wasted no time, and in April took its first official step toward holding an oil and gas lease sale on the sensitive coastal plain of the Arctic National Wildlife Refuge by issuing a notice of intent to begin scoping for an environmental impact statement on the proposed sale.

3. Zinke rejected offshore drilling royalty rate adjustment recommendation. The Offshore Oil & Gas Workgroup made a head-scratching recommendation that DOI lower the royalty rate for offshore drilling to not more than 12.5%, the lowest rate allowed by law. This is significantly lower than the current rate of 18.75% which was established during the administration of former President George W. Bush. After public backlash, Secretary Zinke said he would not move forward with the committee’s recommendation.

4. DOI moved forward rule repeals that will waste taxpayer dollars. The administration put forward a proposal to repeal the Bureau of Land Management’s Methane Waste and Prevention Rule, which was established to reduce wasted natural gas from oil and gas operations on public lands and estimated to save taxpayers $800 million over 10 years. New Mexico Attorney General Hector Balderas is leading a lawsuit against the Department of Interior’s actions to roll back the methane rule. 
What will the RPC be putting forward as recommendations in Albuquerque?
The recommendations the RPC has entertained to date would benefit companies, not taxpayers, and that will continue at the Albuquerque meeting.

1. The BLM cut out public review opportunities in certain oil and gas drilling decisions by requiring all field offices to issue Categorical Exclusions (CX) from National Environmental Policy Act review. Similar direction to the agency in the mid-2000s led BLM to approve almost 6,900 oil-and-gas-related activities between 2006 and 2008 without environmental review. The Government Accountability Office (GAO) reported that BLM’s use of these categorical exclusions through fiscal year 2008 often did not comply with either the law or BLM’s guidance. Using a CX would forgo environmental analysis and public review and allow the BLM to rubber stamp development quickly without fully considering the impacts. CXs are generally reserved for extreme circumstances where it is unequivocal that environmental analysis is unnecessary.

2. Limit evaluation of environmental consequences from oil and gas development. Limiting analysis of impacts is inconsistent with the requirements of the National Environmental Policy Act to look at the indirect effects and cumulative impacts. Adopting this recommendation would be irresponsible and expose projects to increased legal challenges.

3. 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. If adopted, important federal interests in protecting air quality, threatened species, and cultural resources would not be analyzed and protected.

4. Yet another recommendation aimed at making it easier for companies to be excused from their requirements to pay royalties for offshore drilling. The proposal is for BLM to consider a broader set of factors when analyzing royalty relief applications. As Secretary Zinke said when rejecting a previous RPC recommendation on offshore royalty rate reduction: “Right now, we can maintain higher royalties from our offshore waters without compromising the record production and record exports our nation is experiencing.” Yet, the industry continues to use the RPC to make proposals to reduce what it pays the American public for its energy without any analysis of how such reductions would affect taxpayers and states who benefit from royalties.
Where are these recommendations coming from?
A committee rigged to favor industry. Little effort has been made to include the public or taxpayer interests in the committee. For example, the Planning, Analysis, & Competitiveness Subcommittee is Co-directed by Randall Luthi, the President of the National Ocean Industries Association which represents “all facets of the domestic offshore energy and related industries” with 300-member companies. Convenient for him, his subcommittee is tasked with making recommendations on offshore drilling royalty rates and reviewing BOEM’s five-year offshore drilling plan – which proposes to open more than 90% of the OCS to leasing.  At this meeting, offshore energy interests will recommend yet another way to reduce their royalty payments for the public’s energy.
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:

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.

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.

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.

Leasing of low-potential lands. These lands are less likely to be developed.

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.
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FERC Takes a Step Backward on Environmental Impacts

A 3-2 majority of the Federal Energy Regulatory Commission (FERC) unveiled a new policy last Friday that limits FERC’s analysis and disclosure of the environmental impacts of natural gas pipeline projects. The decision is a step backward for FERC, right when it is soliciting public comment on how to improve its pipeline project reviews.

FERC, which oversees the siting and approval of interstate natural gas pipelines, stated that it will no longer discuss upstream and downstream environmental impacts that it claims fall outside of its review requirements under the National Environmental Policy Act (NEPA). This included a declaration that FERC will no longer prepare upper-bound greenhouse gas emissions estimates for a proposed project when it asserts that those emissions fall outside of its NEPA requirements.

This is wrong for at least two reasons. First, as Commissioners Cheryl LaFleur and Richard Glick noted in dissent, FERC’s policy is circular, in that FERC often does not undergo the proper fact-finding and analysis to determine whether an environmental impact must be considered under NEPA in the first place. Second, FERC’s duties to consider environmental impacts extend beyond NEPA. If FERC ignores these environmental impacts, FERC also will be ignoring information that is essential to deciding whether the project is in the public interest—FERC’s mandate under the Natural Gas Act (NGA).

How FERC unveiled the new policy is also unsettling. FERC buried the announcement within an order upholding its approval of the under-the-radar Dominion New Market Project in New York. This is the second time in less than two months that FERC has buried a significant new policy within an otherwise routine order. Announcing such policies in this fashion undermines public trust in FERC and Chairman Kevin McIntyre’s claim that he views improving FERC’s transparency as a top priority. McIntyre joined Commissioners Neil Chatterjee and Robert Powelson in approving the policy.
Upstream, downstream, direct, indirect, and cumulative effects
To understand what FERC did, it’s important to understand the terminology. The energy world describes natural gas like a river. Production is upstream, transmission is midstream, and end-use is downstream. The emissions that are created through gas extraction are upstream effects because they happen before the gas is transported to the market. Emissions created through burning gas at power plants are downstream effects because they happen after the gas is transported. FERC generally regulates the midstream infrastructure that transports gas from production facilities to end-users.

Under NEPA, FERC is required to consider the direct and indirect effects and cumulative impacts of a proposed action, such as authorizing a new gas pipeline. Direct effects are effects directly caused by the action and occur simultaneously. Indirect effects are caused by the action and are reasonably foreseeable at the time of the action, but may occur later. Cumulative impacts are the impacts that result from the incremental impact of the proposed action when added to other past, present, and reasonably foreseeable future actions, be they federal, state, or private.

NEPA analysis is crucial because it not only requires agencies to review the costs and benefits of the project and its alternatives, but also requires them to disclose this information to the public. The public can then comment, which further assists FERC with its project reviews.

FERC historically resisted calls to include upstream and downstream environmental effects into its NEPA analyses, arguing they are not indirect or cumulative effects because they are not caused by FERC’s action and/or are not reasonably foreseeable. For example, since FERC does not decide whether to authorize the facilities that will use the gas, such as power plants—those decisions are left to the states—FERC has argued that its pipeline approvals do not cause the emissions. FERC also has argued that downstream greenhouse gas effects are not reasonably foreseeable, stating it is impossible to determine the gas’s end-users or how they will consume the gas.

Last year, the D.C. Circuit told FERC that, at least when the end-user is known, FERC must consider downstream greenhouse gas emissions under NEPA. Since then, FERC has included more information about upstream and downstream environmental impacts in its orders, even when it maintains that these effects do not qualify under NEPA. Further, on April 19, 2018, FERC opened a new proceeding requesting comments on how FERC can improve its pipeline review process and devoted an entire section to its treatment of environmental effects. These actions signified some recognition that environmental impacts are relevant not only to NEPA, but also to FERC’s public interest analysis under the NGA.
The new policy undermines that progress
In Friday’s order, FERC declared that it will no longer disclose or consider any environmental impacts outside of NEPA.

In dissent, LaFleur noted that the majority is “essentially arguing that we are not obligated to consider upstream and downstream impacts because there is a lack of causation and reasonable foreseeability,” while ignoring that “a key reason [why] the Commission lacks the specificity of information to determine causation and reasonable foreseeability is because we have not asked applicants to provide this sort of detail in their pipeline applications.”

Further, LaFleur stated that “NEPA does not circumscribe the public interest standard” under the NGA. She’s right. It is baffling how FERC can meet its obligation to consider the public interest without analyzing all environmental impacts.

Glick also challenged the majority’s contention that it did not need to consider “consequences beyond those of greatest concern to the public and greatest relevance to the agency’s decision,” questioning how climate change would not qualify under this standard.
We’re not looking for perfection
For FERC to ignore environmental impacts it determines to be too attenuated—a determination based on its own weak analysis—is short-sighted and misguided.

As Glick stated, there may be instances where, despite FERC’s best efforts, “it will not have sufficient information to assess the consequences that issuing a particular certificate may have for climate change.” But “it is the fact that the Commission made every effort” to identify the impacts that satisfies FERC’s statutory obligations.

Glick is right. FERC must make these efforts.

 
Gillian Giannetti is an Attorney for the Natural Resources Defense Council (NRDC). Her advocacy work focuses on regulatory issues at the Federal Energy Regulatory Commission, particularly when applied to natural gas infrastructure projects.
 

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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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Meeting Future Needs – Judge Tells Trump to Rethink Coal

Great Falls, MT (March 23, 2018) – Stretching across Wyoming and Montana, the Powder River Basin holds enough coal to keep America’s current coal power plants going for over 100 years. It supplies about 40% of the nation’s coal and accounts for 13% of all U.S. greenhouse gas emissions. In September 2015, the BLM opened all this coal to leasing. Federal District Judge Brian Morris says not so fast.

The court ruled that the Bureau of Land Management (BLM) violated the National Environmental Policy Act (NEPA) by failing to consider any alternative in its land use plans that would decrease the amount of coal available for leasing. BLM also failed to analyze the impacts burning the coal, as well as oil and gas, from the public lands would have as a result of climate change to which it would contribute.
BLM FAILED TO CONSIDER FUTURE NEEDS
Our public lands are some of our most precious assets. From the San Gabriel Mountains outside Los Angeles to Great Smoky Mountains, they are there for each one of us to enjoy. We trust the government to manage them in our best interest.  Such trust, however, is not unbounded.  Congress has authorized more uses on BLM lands than in national parks, but the Federal Land Policy and Management Act (FLPMA) nevertheless recognizes all the public’s lands as assets that future generations have as much right to enjoy as the present one.  BLM must manage the public lands so they are “utilized in the combination that will best meet the present and future needs of the American people.” 43 U.S.C. § 1702(c).

Addressing future needs requires looking at indirect and downstream effects of a proposed action. Judge Morris found that BLM had not.  BLM estimated that it would lease over 10 billion tons of coal over the next 20 years. The agency estimated the emissions that would be associated with burning this coal, but did not address the impacts such emissions might have. The judge held that BLM could not wait until it issued leases to specific coal companies. BLM had to analyze and consider the impacts of burning the coal at the time it was deciding how much of the coal to open to leasing. 

The judge held that the same analysis was required of the impacts of burning oil and gas opened to leasing.
BLM FAILED TO CONSIDER ALTERNATIVES
To help ensure informed decision-making, NEPA requires an agency to look at reasonable alternatives to a proposed action. Here, every alternative opened the same amount of coal to leasing – ALL of it. BLM relied upon previous coal screening which had failed to consider climate change at all in the decision about how much coal to lease. Judge Morris found that our changing times required new analysis. BLM could not stick its head in the sand. Managing in the public interest in today’s carbon-constrained world requires taking into account the consequences of burning the federal fossil fuels we choose to take out of the ground.
BLM FAILED TO USE BEST SCIENCE
NEPA requires that “accurate scientific analysis” inform agency decision-making. Here, BLM failed to use the best science available to calculate the impact of the methane emissions.  Methane is a much more potent gas than carbon dioxide. BLM looked only at the long-term effects of methane emissions over a 100-year time horizon. The agency failed to explain why it did not use an available 20-year time horizon to assess short-term impacts.    
WHAT HAPPENS NEXT:

The judge declared the government’s decision unlawful. He must now decide the appropriate remedy.
NRDC asked the court to block any leasing or development of coal, oil or gas until BLM completes the informed decision-making the law requires. The decision involves over 15 million acres of public land and minerals managed by two of BLM’s offices – the Buffalo office in Wyoming and the Miles City office in Montana.
The judge will consider this request and other options over the summer. He has ordered the parties to meet and confer in good faith to attempt to reach agreement as to remedies. In the event no agreement is reached, the parties shall file briefs addressing the appropriate remedy for BLM’s unlawful action by May 21.

 

Sharon Buccino is NRDC’s Land and Wildlife Program Director. Prior to joining NRDC, she practiced environmental and administrative law with a private firm in Washington, D.C. and worked for the Alaska Supreme Court.

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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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