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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Dangerous oil and gas industry exemption slipped into highway bill

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

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

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

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

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

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

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

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

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

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

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Pebble Mine Environmental Review Falls Flat

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

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

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

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

And now this:

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

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

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

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

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

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

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

Take action now to stop the Pebble Mine.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Dominion’s James River Transmission Project

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The key numbers breakdown:

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

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

 

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EPA Clouds Transparency for Environmental Impact Statements

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

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

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

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

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

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

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

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

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5 Recommendations to Speed Infrastructure Permitting Without Gutting Environmental Review

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

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

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

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

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

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

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

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

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