News Article | April 17, 2017
A couple of weeks back I wrote about the shifting focus of anti-fossil fuel conflict groups in their efforts to impede the nation's energy development in various parts of the country. That focus, which since about 2008 had centered on the boogeyman "fracking", has now shifted to a new, midstream boogeyman in the form of pipelines. When conflict groups have identified a good boogeyman, they flaunt it at every opportunity, and it becomes a rationale for them and their supporting web-based media outlets for stopping whatever other activities they want to stop. Of course, what they really want to stop is all development of fossil fuels. Thus, over the last decade, we have seen minor spills of returned fluids from hydraulic fracturing jobs blown up into a reason to halt all drilling in a given basin or state. Now, we see the same dynamic at work, in which even the smallest event that can (at least seemingly) be attributed to a pipeline forms the rationale for halting all activity in an entire region. That previous piece focused on an incident involving a natural gas pipeline leak in Alaska's Cook Inlet, which is operated by Hilcorp, and the manner in which Hilcorp's efforts to coordinate with regulators to address the issue were distorted by one of those web-based media groups, EcoWatch. Repairs to that pipeline are underway, with no discernible impacts to surrounding wildlife or the environment, but it placed Hilcorp on these groups' radar as a target for exploitation. Sure enough, when Hilcorp properly reported seeing a small sheen of what appeared to be oil off of one of its platforms in the Cook Inlet last week, the conflict groups sprang into action. Within hours of the report, The Center For Biological Diversity (CBD) issued a press release carrying the following breathlessly-worded first paragraph: Thus, a small sheen off a single platform in a vast body of water becomes a rationale for shutting in all oil and natural gas production in the Cook Inlet for what would be a very, very long time. And note the identification of the favored boogeyman "pipelines" as the alleged culprit here, even though there was no evidence at the time that a pipeline was in fact the source of the sheen. More on that later. Shortly after CBD's missive, Lois Epstein, Director of the Wilderness Society's arctic program, published an online op/ed in which she characterized the sheen as coming from an "oil leak from an underwater pipeline". Ms. Epstein then goes on to allege the following: As with the natural gas pipeline leak of a couple of weeks ago, the effort here is to paint the incident in the most negative light possible, ascribing it all to the current boogeyman of preference. Both pieces are also highly critical of Alaska regulators in an effort to pressure them into taking some global action on the basis of a minor isolated incident. Never mind that Alaska's regulators have by all rational accounts performed their jobs quite well in response to both incidents. And here's the kicker: Hilcorp ran an eight-hour pressure test on the pipeline connected to its platform this past Saturday, and the test revealed that the pipeline was not the source of the three gallon leak (no, the initial estimate has not been revised). There was indeed a one-time, very small spill of oil that caused a sheen on the water's surface, but that sheen dissipated so quickly that it was no longer visible to over-flights of the platform a few hours later. So, the boogeyman failed to perform as anticipated. It's important to examine what the consequences would be to Alaskans should these conflict groups get their way , and shut down all offshore exploration and production as a result of a three-gallon spill. The production of oil and natural gas has been the life's blood of the Alaskan economy for more than forty years now. It has provided many thousands of jobs, led to the creation of billions of dollars in economic impacts, funded the majority of the state's government for decades, and in most of those years resulted in significant annual tax refunds to Alaska residents. If the conflict groups get their way, all of that economic benefit to the state would simply disappear, with no viable replacement on the horizon.
News Article | May 3, 2017
A coalition of environmental groups on Wednesday sued the Trump administration over its efforts to expand offshore drilling, arguing the move violates the president’s legal authority, threatens a multitude of wildlife and could harm the fishing and tourism industries. The lawsuit, filed in a federal court in Alaska, comes days after President Trump signed an executive order aimed at jump-starting offshore drilling in the Arctic and Atlantic oceans, as well as assessing whether energy exploration can take place in marine sanctuaries in the Pacific and Atlantic. The policy could open millions of acres of federal waters for oil and gas leasing, just months after President Barack Obama withdrew the areas from possible development. At a signing Friday in the Roosevelt Room, Trump emphasized that the United States has abundant offshore oil and gas reserves and made clear his intention to tap them if possible. “We’re opening it up,” he said. Wednesday’s lawsuit argues that Trump’s executive order exceeds his constitutional and statutory authority. It notes that Obama used his authority under the Outer Continental Shelf Lands Acts to permanently end drilling in much of the Arctic and key parts of the Atlantic but says that no president has ever undone or reversed such a decision and that the law “does not authorize the president to reopen withdrawn areas.” [Trump signs executive order to expand drilling off America’s coasts: ‘We’re opening it up.’] “The permanent protections President Obama established for the Arctic and Atlantic Oceans were won with years of research, lobbying and organizing,” Gene Karpinski, president of the League of Conservation Voters, said in a statement. Until Wednesday, his group had never filed a legal challenge. “Offshore drilling and the associated threat of devastating oil spills puts coastal economies and ways of life at risk while worsening the consequences of climate change. Now, President Trump is trying to erase all the environmental progress we’ve made, and we aren’t about to go down without a fight.” Jamie Rappaport Clark, president of the advocacy group Defenders of Wildlife, called Trump’s order an example of his administration’s “single-minded focus on fossil fuel extraction at the expense of every other value.” “Exposing the enormously sensitive ecosystems of the Arctic and Atlantic Oceans to the risk of a catastrophic oil spill is playing roulette with the nation’s coasts, wildlife, birds and fish. It is also manifestly illegal,” Clark said in an statement. “No president has ever before tried to undo a previous president’s determination, made under a specific grant of authority from Congress, that ecologically sensitive offshore waters deserve protection from the risks inherent in oil drilling. We do not need and cannot use the oil that may lie under these waters if we ever hope to meet our nation’s commitment to addressing climate change.” Other groups joining the lawsuit include the Sierra Club, the Natural Resources Defense Council, the Center for Biological Diversity, Greenpeace, the Alaska Wilderness League and the Wilderness Society. A White House official on Wednesday said the administration is “confident that President Trump’s common-sense decision to boost our energy sector will be vindicated in the judicial process.” Even Trump administration officials have acknowledged that it would take a couple of years or longer to rewrite federal leasing plans and open up areas of the Arctic and Atlantic to drilling. And if global oil prices remain low, that could deter investors from pursuing offshore drilling in the near term, despite the administration’s efforts to make more areas eligible for development. That said, the administration and supporters of the president’s approach have argued that future oil demand and prices remain uncertain and that the country ought to keep open the option to drill offshore. Last week, Vice President Pence described the executive order as “an important step toward American energy independence” that would generate additional U.S. jobs. Wednesday’s lawsuit marks the latest effort by activists to challenge the Trump administration’s energy and environmental policies in the courts. Groups such as Earthjustice and others, for example, have filed suits over Trump’s order to approve two pipeline projects and over an order aimed at opening tens of thousands of acres of public lands to coal leasing. They also have opposed other measures, such as efforts to roll back the Obama administration’s key regulation to cut carbon emissions from the nation’s power plants and a move to delay the implementation of tougher standards to limit smog that were finalized in 2015. Also Wednesday, the Sierra Club and other groups sued the head of Trump’s Environmental Protection Agency over a recent decision to halt an Obama-era regulation aimed at limiting the dumping of toxic metals such as arsenic and mercury by the nation’s power plants into public waterways. Beginning in 2018, power plants would have had to begin showing that they were using the most up-to-date technology to remove heavy metals — including lead, arsenic, mercury and other pollutants — from their wastewater. But EPA Administrator Scott Pruitt announced last month that the agency would postpone compliance deadlines for the regulation while it reconsiders the rule, which is also being challenged in a federal court. “These standards would have tackled the biggest source of toxic water pollution in the country, and now the Trump EPA is trying to toss them out. It’s indefensible,” Pete Harrison, an attorney for Waterkeeper Alliance, said in a statement. “The EPA didn’t even pretend to seek public input before plowing ahead with this rollback that could allow millions of pounds of preventable toxic pollution to go into our water.”
News Article | April 28, 2017
President Trump signed an executive order Friday that aims to expand offshore drilling in the Arctic and Atlantic Oceans, as well as assess whether energy exploration can take place in marine sanctuaries in the Pacific and Atlantic. The “America-First Offshore Energy Strategy” will make millions of acres of federal waters eligible for oil and gas leasing, just four months after President Barack Obama withdrew these areas from possible development. In late December, Obama used a little-known provision in the Outer Continental Shelf Lands Act to bar energy exploration in large portions of the Chukchi and Beaufort Seas, and a string of canyons in the Atlantic stretching from Massachusetts to Virginia. At the signing in the Roosevelt Room, where the audience included Vice President Pence and members of Congress, Trump emphasized that the U.S. has abundant offshore oil and gas reserves, “but the federal government has kept 94 percent of these offshore areas closed for exploration and production, and when they say closed, they mean closed.” Noting that the lawmakers needed to return to Capitol Hill to approve a stopgap measure to keep the federal government open, Trump said, “We can’t spend too much time talking about drilling in the Arctic, right? And we’re opening it up.” Still, even Trump administration officials said it would take years to rewrite federal leasing plans and open up these areas to drilling. And global energy prices may deter investors from moving ahead with additional drilling in the Arctic Ocean in the near term, despite the effort to make more areas eligible for development. Speaking to reporters Thursday night, Interior Secretary Ryan Zinke said it would likely take about two years to do a thorough review of what new areas could be put up for auction. Still, on Friday, Pence described the order as “an important step toward American energy independence” that would generate additional U.S. jobs. [While Trump might want more offshore drilling, global energy investors will make their own call] Environmental groups decried the policy shift as reckless and possibly illegal. Kristen Miller, interim executive director of the Alaska Wilderness League, said in a statement, “In no point in history has a president challenged another administration’s permanent withdrawals. Trump’s action could set a dangerous precedent, which will only undermine the powers of the office of the president.” And Jamie Williams, president of the Wilderness Society, said that when it came to the Arctic, “the chance of a tragic spill in those remote, icy waters is simply too high, and the impacts to marine life and the pristine coastal plain of the Arctic National Wildlife Refuge could be devastating.” The order, Williams added, “amounts to another brazen power grab for the oil lobby that we, and the American people, will oppose.” Industry officials hailed the new directive as an important corrective to Obama’s overly restrictive approach to energy policy. “We are pleased to see this administration prioritizing responsible U.S. energy development and recognizing the benefits it will bring to American consumers and businesses,” said American Petroleum Institute CEO Jack Gerard in a statement. “Developing our abundant offshore energy resources is a critical part of a robust, forward-looking energy policy that will secure our nation’s energy future and strengthen the U.S. energy renaissance. But in a sign of how the oil and gas industry’s economic interests may still be at odds with federal policy, Gerard said, “We must particularly look to and embrace the future development of domestic sources of oil and natural gas in the Eastern Gulf of Mexico.” Administration officials, however, said that the order does not require leasing in the eastern Gulf, which many Floridians oppose. Randall Luthi, president of the National Ocean Industries Association, said the U.S. is the only country in the Atlantic Basin that closes off “94 percent of its Outer Continental Shelf” to exploration. “I’m quite optimistic” about future development, Luthi said. “The Arctic still holds a lot of promise.” Officials in Alaska embrace the idea of expanded offshore drilling, while many in the Southeast — including some prominent Republicans in South Carolina and North Carolina — oppose it. House Speaker Paul D. Ryan (R-Wis.) applauded the order, saying in a statement, “State governments have been eager to explore offshore, but the Obama administration blocked them from allowing it. Harnessing our nation’s energy resources creates jobs and gives us leverage on the foreign stage. President Trump gets this.” In addition to reviewing what drilling can take place off Alaska and the East Coast, the new directive charges Commerce Secretary Wilbur Ross to halt the expansion of any new marine sanctuaries and review the designations of any marine national monument established or expanded in the last decade. That includes Hawaii’s Papahanaumokuakea Marine National Monument, which Obama quadrupled in size last year, and the Northeast Canyons and Seamounts off Massachusetts. According to a White House fact sheet, no national marine sanctuary can be designated or expanded “unless the sanctuary designation or expansion proposal includes a timely, full accounting from the Department of Interior of any energy or mineral resource potential within the designated area and the potential impact the proposed designation or expansion will have on the development of those resources.” Richard Charter, a senior fellow at the Ocean Foundation, said in an email that this means the administration could be reviewing the Greater Farallones National Marine Sanctuary off the Sonoma and Southern Mendocino Coast, as well as the expansion of the Thunder Bay National Marine Sanctuary. “Each of America’s national marine sanctuaries is the product of decades of bipartisan consultation with elected officials at all levels, ocean businesses, governors, and members of Congress, individually created using sound scientific groundwork to set aside recognized national treasures,” Charter said. “And these waters are clearly the absolute last place Trump should even consider for dangerous offshore drilling.” Zinke told reporters that he understood environmentalists’ worries about expanded drilling. “That’s a valid concern, and a concern the president and I both share,” he said. “America leads the world in environmental protection, and I assure you we will continue that mission.”
News Article | February 23, 2017
When former Interior Secretary Sally Jewell announced that sweeping federal plans designed to save the greater sage grouse had been finalized less than a year and a half ago, she hailed it as an "epic conservation effort" that took years to complete. The Republican governors of Nevada and Wyoming and the Democratic governors of Colorado and Montana stood next to Jewell at the September 2015 ceremony. She revealed that the mottled-brown bird would not be listed for protection under the Endangered Species Act, in large part because of the federal plans. But the election of President Trump just over a year later has federal and state officials, conservation groups, and others expecting big changes in how the plans are carried out — if they are ever fully implemented. Trump has not publicly addressed the federal sage grouse plans. But Rep. Ryan Zinke (R-Mont.), Trump's nominee for Interior secretary, has been a vocal critic, comparing them at one time to Obamacare and saying he wants "state-driven solutions" for managing grouse. Trump cannot simply dismiss the blueprints, which amended 98 Bureau of Land Management and Forest Service land-use plans to incorporate protective measures covering nearly 70 million acres of sage grouse habitat in 10 Western states. Amending land-use plans requires a lengthy analysis and public comment period. But some observers foresee the Interior and Agriculture departments reopening the land-use plan amendment process to revise the sage grouse plans — an effort that would take years and likely stretch well past Trump's first term in office. "Obviously, they could restart the planning process tomorrow," said Sarah Greenberger, who as one of Jewell's top counselors helped develop the plans. In the short term, the Trump administration is expected to scale back implementation measures, observers say, initially by removing funding for grouse conservation efforts from the president's fiscal 2018 budget request. And the administration could curtail efforts defending lawsuits against the federal plans. Congress is already moving to block the plans and give states more control. House Natural Resources Chairman Rob Bishop (R-Utah) last month filed a bill, H.R. 527, that would give governors the authority to bar any provisions in the federal plans that do not conform to state-approved grouse conservation strategies (Greenwire, Jan. 16). Western states are likewise pushing the new administration for greater flexibility in how the plans are implemented. Colorado, Utah and Wyoming want federal plans to more closely align with state grouse strategies on issues like mitigation and oil and gas leasing near sensitive grouse breeding grounds, called leks. "I think we're fairly hopeful that we can work with the new administration and new secretary of the Interior, when he's confirmed, to maximize flexibility," said John Swartout, a Republican who is a senior adviser to Colorado Gov. John Hickenlooper (D) and a member of a federal-state sage grouse task force. It's not clear what specific steps Zinke might take as Interior secretary. Representatives with the Interior Department did not respond to a request to comment on this story. Derrick Henry, a BLM spokesman, said the agency has not been told to change its approach to sage grouse management. "Right now, we're operating under the current [grouse management] plans," Henry said. But all the uncertainty has some of the principal architects of the federal plans concerned about the fate of the grouse. Because sage grouse occupy such a vast range across most of the Great Plains, a rangewide plan is needed to restore the bird and protect its habitat, said Greenberger, who is now vice president for conservation at the National Audubon Society. The plans established primary habitat management areas and general habitat management areas where new oil and gas drilling, some large transmission line projects, and livestock grazing are prevented or limited. The plans focus conservation measures in specific areas that are most important to the grouse, while still allowing oil and gas and renewables development. "This was an attempt to step in on the front end and do something strategic," she said. Greenberger said she understood there were going to be "growing pains" in implementing the plans. "I think on the ground in the West, there are certainly some frustrations," she said. "But there also continues to be a sense that people were really working together for something important and trying to solve a problem in a very pragmatic way." She added: "If you unravel it, we're going to be in court." The federal grouse plans already face numerous legal challenges by a wide variety of groups, including the states of Utah and Nevada, the Western Energy Alliance, and North Dakota Petroleum Council, mining companies and several counties in Nevada. If the Trump administration dismantles the federal plans, one of the first places the effort will show up is in the government's defense of these lawsuits, according to legal experts. While some have suggested the administration could order the Justice Department to quit defending the cases in court, that's not likely, observers say, because each of the lawsuits challenges some aspect of the federal government's ability to regulate activities on federal land. "It would be very hard to take a position not to defend the cases that question your authority to manage federal lands," said Nada Culver, senior counsel and director of the Wilderness Society's BLM Action Center. Instead, DOJ may work to settle the lawsuits, agreeing to make specific revisions to the grouse plans, perhaps by a certain deadline. "I would think there would be a very good opportunity to talk in settlement negotiations between the plaintiffs and federal defendants, and to really listen and resolve and revise," said Kent Holsinger, a Denver natural resources attorney who has represented the energy and agricultural industries in litigation involving sage grouse. Pat Parenteau, senior counsel at the Environmental and Natural Resources Law Clinic at the University of Vermont, agrees this is a plausible scenario. But revising the plans would be complicated, he said. That's because they amended dozens of federal land-use plans, meaning Interior and USDA would have to open a new rulemaking process that would mandate additional studies and analysis, hearings and opportunities for the public to submit comments. "You don't just snap your fingers and they're gone," Parenteau said. Complicating matters is the fact that a number of environmental groups have intervened on the side of the Interior and Agriculture departments in a handful of the lawsuits. While formal intervenors cannot block settlement agreements, they can review the terms and "object and argue to the court why the settlement cannot be approved," Parenteau said. "You can't get away with a backroom deal without public scrutiny and comment," he added. The wild card in such a scenario is the Fish and Wildlife Service, which could always reverse course and list the bird for ESA protection, said Bob Keiter, a University of Utah law professor who specializes in natural resources and public lands. "If the plans were substantially altered, that would open the door for a [ESA] listing, which most people, I think, believe would lead to more onerous protections for the bird," Keiter said. "There are a lot of things for the agencies to consider before jumping off and trying to scrap the plans wholesale." Western state leaders who want revisions to the federal plans say they're positioned to make them happen with the Trump administration. In Utah, thestate wants more time for its grouse management strategy to work before the federal plans are fully implemented, said Braden Sheppard, legal counsel for Republican Gov. Gary Herbert's Public Lands Policy Coordinating Office. Failing that, Sheppard said, the state wants to see the federal plans "significantly revised to allow for multiple-use on federal lands, or rescinded." Utah filed a federal lawsuit last year challenging the plans, arguing they undermine the state's sage grouse conservation efforts (Greenwire, Feb. 5, 2016). "We have worked really well with our federal partners to try and work within the plan," Sheppard said. "However, it's a one-size-fits-all decision, and it does not reflect the tremendous diversity of greater sage grouse habitat across the West and here in Utah." In Wyoming, which is home to nearly half the remaining grouse, the federal plan is modeled after the Cowboy State's core sage grouse area approach adopted in 2008 that identified habitat where conservation is prioritized and development discouraged. Gov. Matt Mead (R) has reaffirmed and expanded the state program through two subsequent executive orders, and he has expressed his support for the federal grouse plans. Still, the federal blueprint includes some significant differences from the state plan, including the type of mitigation requirements when disturbances do take place inside core areas. For projects in portions of the state where there's a checkerboard pattern of federal-state ownership, mitigation requirements can be different on parcels sitting side by side. "Wyoming would welcome more flexibility to implement the governor's core area sage grouse strategy," said Mike McGrady, Mead's policy adviser. "We'd like to see the mitigation standards BLM's applying better align with the core area strategy." Flexibility is also a buzzword in Colorado. Swartout said the state supports the federal grouse plans. "The goal is to try to make these plans work, and through implementation there's lots of options to make these plans work," he said. But he said Colorado wants to see some changes, including allowing oil and gas development in some cases closer to leks than the federal plans allow. Swartout said the federal strategy that the state worked out with BLM Colorado officials included a tiered-system approach to leasing near leks, where development is allowed as long as certain conditions were met for projects 3 miles from a lek, with different criteria for projects 2 miles away and 1 mile away. But when the draft plans were sent to BLM headquarters in Washington, Swartout said, the tiered system was removed. "We look forward to having a dialogue with the new people," he said. Swartout said Zinke's testimony during Senate confirmation hearings last month has state leaders feeling optimistic about the Trump administration's plans for grouse management. "He talks about appropriate balance. We need to get that balance right," Swartout said. "We actually are hopeful they'll have a greater understanding of what states need to make this work." Altering the plans, even in subtle ways, could lead to additional lawsuits from conservation groups to force the Trump administration to carry out the already approved mandates. "This was the biggest planning deal of my BLM career, and we got there with the states at the table," said Steve Ellis, the former BLM deputy director who, before retiring last year, helped craft instruction memorandums directing agency field offices how to implement the plans. "Did we always agree on all things? No," he added. "But we all agreed on the common goal, and that was to avoid a listing of the greater sage grouse." Pulling away from the federal grouse plans is tantamount to pulling away from that goal, Ellis said. "Priorities shift, but you still have to follow the plans in place or there are groups out there that will check you on that," he said. "That's where the judicial system comes in." In addition to lawsuits, environmentalists would likely start petitioning the Fish and Wildlife Service to list other species in the sagebrush steppe ecosystem that the grouse and roughly 350 other species depend on. "You start having other critters pop up with petitions for listing," Ellis said. If that happens, the dominoes will start to fall for an ESA listing of the sage grouse, he said, because the service must review the status of the bird every five years. "The Fish and Wildlife Service is going to have to take another look to see if these plans and the implementation of these plans has made progress in turning the population declines around. Basically, are the regulatory mechanisms we put in place working?" Ellis said. "That is something that, before you start dismantling the plans, you need to consider." The current status of the greater sage grouse is murky, at best, in part because grouse populations are cyclical and can change dramatically from year to year. In Wyoming, for example, officials with the state Game and Fish Department, federal agencies, private consultants, and volunteers last year visited nearly 1,700 sage grouse leks and counted more than 42,300 male sage grouse. Lek counts are good barometers of grouse health because most males in an area can be found at a lek during breeding season, allowing biologists to get accurate counts, said Tom Christiansen, sage grouse program coordinator for the Game and Fish Department. The average number of male grouse per lek last year was up 16 percent compared with 2015, which was 66 percent higher than 2014. But when biologists visited nesting sites in December, they measured what Christiansen described as "poor chick production" — a sure sign that "we are looking at a decrease in our lek counts this spring." The federal grouse plans include "triggers" for adaptive management techniques to kick in when grouse populations decline significantly. That's already happened in northwest Utah, where BLM this month announced it was alarmed about an isolated population of grouse that had suffered a "serious decline" in population (E&E News PM, Feb. 6). "We are going to be arguing to the new administration that it's in their best interest to keep their plans in place," said Steve Holmer, vice president of policy for the American Bird Conservancy. "We don't see a lot of room for them to maneuver and take the legs out from under this stool." Reprinted from Greenwire with permission from E&E News. Copyright 2017. E&E provides essential news for energy and environment professionals at www.eenews.net
News Article | January 31, 2017
Now that Republicans have quietly drawn a path to give away much of Americans’ public land, US representative Jason Chaffetz of Utah has introduced what the Wilderness Society is calling “step two” in the GOP’s plan to offload federal property. The new piece of legislation would direct the interior secretary to immediately sell off an area of public land the size of Connecticut. In a press release for House Bill 621, Chaffetz, a Tea Party Republican, claimed that the 3.3m acres of national land, maintained by the Bureau of Land Management (BLM), served “no purpose for taxpayers”. But many in the 10 states that would lose federal land in the bill disagree, and public land rallies in opposition are bringing together environmentalists and sportsmen across the west. Set aside for mixed use, BLM land is leased for oil, gas and timber, but is also open to campers, cyclists and other outdoor enthusiasts. As well as providing corridors for gray wolves and grizzly bears, low-lying BLM land often makes up the winter pasture for big game species, such as elk, pronghorn and big-horned sheep. Jason Amaro, who represents the south-west chapter of Backcountry Hunters and Anglers, describes the move as a land grab. “Last I checked, hunters and fishermen were taxpayers,” said Amaro, who lives in a New Mexico county where 70,000 acres of federal lands are singled out. In total, his state, which sees $650m in economic activity from hunting and fishing, stands to lose 800,000 acres of BLM land, or more than the state of Rhode Island. “That word ‘disposal’ is scary. It’s not ‘disposable’ for an outdoorsman,” he said. Scott Groene, a Utah conservationist, said the state’s elected officials were trying to “seize public lands any way they can”, without providing Americans a chance to weigh in. If residents knew their local BLM land was being threatened, said Groene, “I’m sure the communities would be shocked”. Chaffetz introduced the bill alongside a second piece of legislation that would strip the BLM and the US Forest Service of law enforcement capabilities, a move in line with the Utah delegation’s opposition to all federal land management. “The other bill hamstrings our ability to manage and ensure that our public lands are being kept safe,” said Bobby McEnaney of the Natural Resources Defense Council. “When you have those two combined, it’s a fairly cynical approach to how public lands can be managed.” The 10 states affected are Arizona, Colorado, Idaho, Montana, Nebraska, Nevada, New Mexico, Oregon, Utah and Wyoming. Residents can see how much acreage is earmarked for “disposal” in their counties by checking a PDF on Chaffetz’s website. Due to a controversial change this month to the House of Representatives’ rules, the sale does not have to make money for the federal government. A representative for the interior department, Mike Pool, who weighed in on a version of the bill in 2011, said selling those 3.3m acres “would be unlikely to generate revenue”. A Republican conservation group in Utah likened it at the time to “selling the house to pay the light bill”. The acreage identified is drawn from a 1997 survey conducted by the Clinton administration, which sought to identify potential offsets to revive the Florida Everglades after decades of pollution from the sugar cane industry. The actual language of the 1997 survey, which did not result in land being sold, prefaced its findings with a caution: “Please note many lands identified appear to have conflicts which may preclude them from being considered for disposal or exchange.” The vast majority of the thousands of parcels have “impediments to disposal”, according to the survey, including hosting endangered species and wetlands or having “cultural significance”. Barack Obama created at least two federal protections in counties with large swathes of BLM land now designated for disposal: New Mexico’s Organ Mountains-Desert Peaks national monument, in 2014, and Utah’s Bears Ears national monument, in 2016. Arizona’s Parashant national monument, near the Grand Canyon, was designated by Bill Clinton in 2000 and also sits in a marked county. A spokesperson for Chaffetz said he was not available for comment. To outdoorsmen like Amaro, selling off individual parcels of national land creates a “multiplier problem”, where a small parcel of land turned private can cut off access for many. That’s what happened in Coronado national forest, he said. Ten acres that led on to hundreds of thousands of acres of public property were turned into state trust land. “Access has been eliminated for much of the forest. The private landowners now effectively have their own private hunting preserves by not allowing public hunters a way into the national forest,” Amaro said. Chaffetz’s proposal might in fact be in violation of the common-law Public Trust Doctrine, which requires that the federal government keep and manage national resources for all Americans. Courts have upheld the policy that sale or use must be in Americans’ interest. John Gale, conservation director for Backcountry Hunters and Anglers in Missoula, Montana, said the Utah representatives were pushing the bills despite their proven unpopularity. “It’s not only an assault on our traditions,” Gale said. “It’s the idea that they’re stealing that from our children.”
News Article | February 18, 2017
The nation’s largest outdoor-recreation companies are pulling their official trade show from Salt Lake City, citing Utah Gov. Gary Herbert’s push to rescind the Bears Ears National Monument’s federal designation. Herbert (R) has joined with Utah’s congressional delegation in asking President Trump to undo federal protections that former president Barack Obama granted in late December to Bears Ears, a sacred ancestral Pueblo site in southeastern Utah. On Thursday evening, the group that sponsors the outdoor industry’s largest trade show, Outdoor Retailer, announced it would no longer allow Salt Lake City to bid on its 2018 Summer and Winter Market. The company has held the twice-yearly trade show there for 20 years. Hours before, the trade-show sponsor participated in a call with Herbert along with officials from Patagonia, The North Face, REI and the Outdoor Industry Association. Participants from both sides described the conversation as contentious. Herbert, who signed a resolution from the state legislature last month calling on Trump to use his power under the 1906 Antiquities Act to revoke the monument, offered to convene a group to discuss the matter further. “We felt that we were being presented with an ultimatum,” Paul Edwards, Herbert’s deputy chief of staff, told reporters after the session. “They were not eager to accept the governor’s invitation for further dialogue.” [With monuments in Utah and Nevada, Obama adds to his legacy] Amy Roberts, executive director of the Outdoor Industry Association, said the group tried to support other avenues to protect land in Utah, including a legislative initiative led by House Resources Committee Chairman Rob Bishop (R-Utah) and House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-Utah) that stalled last year. But Utah politicians’ actions over the years were undermining land protections, she said. “We’ve reached a boiling point,” Roberts said. “He has a very different view on protections of public lands than our members do,” Roberts said of Herbert, noting that the Antiquities Act has traditionally been used by presidents to protect iconic federal holdings. “We don’t want the monument to be rescinded. There’s no precedent for rescinding a monument. It puts the Antiquities Act in play.” In a statement, Outdoor Retailer said that while it will be challenging to find a new location, “we are in lockstep with the outdoor community and are working on finding our new home.” Separately, Emerald Expositions announced it will not allow Utah to bid on the future site for the Interbike trade show, a mecca for cyclists. Visit Salt Lake’s President and CEO Scott Beck called the city “an unparalleled venue” for trade shows. Edwards called the industry’s decision to freeze out the state “offensive.” “It reflects a gross ingratitude to a community that has embraced the Outdoor Retailer show, subsidizing its success and expansion through direct investment — let alone extraordinary hospitality,” Edwards said in a statement. “It perpetuates the false narrative that Utah — a state that derives much of its inspiration and identity from its iconic public lands — a state that invests tens of millions of dollars into the protection of and access to its public lands — is somehow hostile to those public lands.” But the state’s politicians need to understand the economic consequences of their actions, said Scott Miller, senior regional director for the Wilderness Society. “This should send a clear signal to Utah’s leadership,” Miller said in a statement. “In the wake of ongoing political attacks on our clean air and water, wildlife and sacred places, we will stand united in our beliefs and our business practices.”
News Article | February 15, 2017
As Republican members of Congress continue their efforts to overturn federal regulations passed under the Obama administration, they are now taking aim at the process for managing public lands. In the past few weeks, Congress has introduced a number of resolutions under an obscure law known as the Congressional Review Act, which could undo multiple environmental rules finalized last year. And one of the latest to come up for the chopping block is a regulation passed late last year by the Interior Department’s Bureau of Land Management (BLM), intended to make federal land use planning more efficient and accessible to the public. A resolution to nullify the rule has already passed in the House and may soon come to a vote in the Senate. The regulation — commonly known as the BLM Planning 2.0 rule — was meant to address concerns about the time and transparency associated with land planning processes, which can include everything from decisions about energy development on public lands to the protection of endangered wildlife. The final rule expands the process of gathering data and information for decision-making processes, allowing for greater and earlier public input on land planning decisions and calling for decisions to be based on the best available science. Upon its finalization, BLM officials claimed that the rule would help decisions to be made more quickly, in a way that better reflects the condition of the land and the concerns of affected communities at the time the plans are carried out. “Under the current system, it takes an average of eight years for the BLM to finish a land use plan,” said BLM Director Neil Kornze in a statement at the time. “Too often, by the time we’ve completed a plan, community priorities have evolved and conditions on the ground have changed as well. This update to our planning rule allows for a more streamlined process that also increases collaboration and transparency.” But critics have claimed that the rule reduces the authority of county commissioners and other local land managers and undermines local interests. Last week, a letter from the Western Governors’ Association to members of Congress expressed concern about the involvement of state governors in resource management plans moving forward, as well as the rule’s potential to favor national objectives over state interests. The letter urged Congress to direct the BLM to reexamine the regulation. Under the new resolution, however, the rule would not just be revisited — it would be done away with entirely, with a provision prohibiting any substantially similar rule from ever being enacted again without congressional approval. President Trump has already indicated his intention to sign the resolution should it pass through Congress. It’s the second major BLM rule to be targeted for repeal under the Congressional Review Act. The first was a highly controversial regulation aimed at curbing excess methane emissions from oil and gas operations on public lands — it was pinned as a likely target for action under the Trump administration nearly as soon as it was passed in November. This resolution is also awaiting a vote in the Senate. The Planning 2.0 rule has received somewhat quieter pushback since it was finalized in December, making it a slightly more surprising target for congressional action. It was not pegged by experts as an early priority for repeal, nor was it included in an initial report from Rep. Mark Meadows (R-N.C.), head of the House Freedom Caucus, containing a comprehensive list of rules and regulations Congress should focus on overturning in the new administration’s first 100 days. However, the rule was included on a list of targets for action under the Congressional Review Act compiled by the Congressional Western Caucus, a group of Republican lawmakers representing the Western states. “We already think that Congress has spent way too much time on this planning rule, which should be a nonissue and noncontroversial,” said Phil Hanceford, assistant director of the Wilderness Society’s BLM Action Center. “I’m not saying that people’s complaints or problems with the rule aren’t valid, but they can be fixed through very surgical means.” He added that the previous Congress held three hearings on the rule before it was finalized, two in the House and one in the Senate, and that “we were surprised that they spent that much time on the rule in the first place.” However, some groups have hailed the congressional action. Ethan Lane, executive director of federal lands with the National Cattlemen’s Beef Association, said in a statement last week that the rule was a “massive regulatory overreach” and that the new congressional resolution represented a “huge victory for America’s cattle producers and a sign that some common sense is finally being restored in Washington.” But environmentalists have maintained that concerns about specific provisions of the rule could still be addressed administratively by the BLM, instead of subjecting the entire regulation to the chopping block. “If the planning rule is overturned by the CRA, then we go back to the out-of-date, inefficient way of planning for public lands that everybody has complained about for decades,” Hanceford said.
News Article | February 15, 2017
One of questions raised by the election of President Donald Trump is how his appointments to the Supreme Court (with the “advice and consent” of the Senate) may influence the future direction of the nation’s environmental law. The pending nomination of Judge Neil Gorsuch to fill the Court vacancy created by the death of Antonin Scalia makes the question especially timely. The Supreme Court plays a crucial role in shaping the nation’s environmental law. Except in exceptional cases governed by federal common law, involving interstate water disputes, for example, the Court itself does not create environmental law. Instead, it typically reviews environmental measures generated by the other branches of government to see whether they are consistent with statutes enacted by Congress or the U.S. Constitution. But this Court power to check the other branches greatly influences the ultimate content of the law, as illustrated by two relatively recent decisions, one upholding Environmental Protection Agency (EPA) authority to regulate greenhouses gas as “air pollutants” under the Clean Air Act, and another declining to uphold EPA regulations defining the scope of federal permitting jurisdiction over wetlands under the Clean Water Act. How justices decide cases traditionally reflects the ideology of the presidents who appointed them. Justices appointed by Democratic presidents typically support government action to protect the environment, while Republican-appointed justices tend to be skeptical of environmental regulation. There are notable exceptions to this pattern; after all, Supreme Court justices have life-time tenure, making them beholden to no one. Nonetheless, party association is, for better or for worse, a reliable predictor of how justices vote. President Trump might be viewed as a wild card in the judicial selection process because his views sometimes diverge from Republican Party orthodoxy. He has joined many other Republicans in criticizing President Obama’s Clean Power Plan to combat climate change, but he departs from most Republicans in in supporting aggressive use of the eminent domain power to promote private economic development. Will Trump’s judicial appointments be idiosyncratic as well? The evidence suggests not. During the campaign, Trump released a list of potential candidates to fill the vacancy on the Court and, true to his word, once elected; he nominated a person from that list, Judge Gorsuch. Trump has publicly acknowledged the help he received in compiling his list from the Heritage Foundation and the Federalist Society, two deeply conservative organizations with a laser-like focus on how judicial appointments can advance the conservative agenda. So what is the potential effect of Judge Neil Gorsuch likely joining the high court on environmental law? The answer depends a great deal on one’s perspective. Some critics of the appointment lament that the Senate did not take up President Barack Obama’s nomination of federal appeals court Merrick Garland. They point out that President Trump has an opportunity to fill a vacancy on the Court only because the Senate failed to act to fill the vacancy earlier. Confirmation of Garland would have created the first Democratic-appointed majority on the Court in decades, and the likely confirmation of Gorsuch instead represents a significant change. On the other hand, supporters of Gorsuch point out that he will fill a seat held by the late Justice Scalia, a staunch conservative, suggesting that Gorsuch represents ideological stability on the Court. Gorsuch has participated in a only a handful of environmental law cases during his ten years on the U.S. Court of Appeals for the Tenth Circuit, making it difficult to draw any firm conclusions about his stance on environmental law issues. The judge is a skier and an angler, suggesting he might be sympathetic to environmental concerns; but Justice Scalia’s enthusiasm for trout fishing certainly did not temper his skepticism about environmental regulation! It is interesting to observe that Judge Gorsuch’s mother, the late Anne Burford Gorsuch, was a very controversial EPA Administrator under President Ronald Reagan. Gorsuch has staked out positions on several crosscutting legal questions that have important implications for environmental law, leading advocacy groups as the Sierra Club and the Earthjustice Legal Defense Fund to come out against his confirmation. Critics of government regulation sometimes seek to apply the so-called nondelegation doctrine, which purportedly limits the power of Congress to make delegations of rule-making authority to administrative agencies. The Supreme Court has upheld nondelegation challenges to congressional enactments in only a handful of cases, both decided in the 1930’s, and the late Justice Scalia wrote an opinion for the modern Court rejecting a nondelegation challenge to the Clean Air Act. In a highly visible dissent filed in 2015, however, Judge Gorsuch offered a full –throated defense of the doctrine, suggesting he might try to lead an effort on the Supreme Court to breathe new life into the doctrine, an ominous prospect for modern environmental statutes that are commonly drafted with a broad brush. Gorsuch also has written opinions suggesting sympathy for the argument that courts should be reluctant to recognize that private environmental plaintiffs have “standing.” Article III of the Constitution limits the judicial power to “cases and controversies,” giving rise to the Court-made doctrine that plaintiffs must meet various requirements to establish their “standing” to sue in federal court. In a 2013 case, Gorsuch filed an opinion taking a strong stance against the Wilderness Society’s attempt to challenge a western county’s creation of public roads on protected federal lands. In another case he argued against allowing environmental advocates to intervene in a case to defend a plan to limit off-road vehicle use in the national forests. Given President Trump’s policy to reduce regulations, potential new judge-made constraints on citizens’ ability to sue to enforce environmental laws are a matter of concern for environmental advocates. Gorsuch is perhaps best known for staking out, just in the last year, a very strong and public position against the so-called Chevron doctrine, which grants federal administrative agencies broad latitude to interpret ambiguous federal statutes. Critics of the Chevron doctrine, including Gorsuch, say it gives too much power to unelected bureaucrats and undermines the function of the courts to define the law. Defenders of Chevron say that expert agencies need some latitude in implementing complex and often ambiguous statutory provisions and that agency officials are under the ultimate control of elected officials. Critics express concern that Gorsuch might pursue his anti-Chevron agenda to the point of hamstringing federal agencies, particularly in the environmental arena. Ironically, however, Chevron applies both to agency rules adopting regulations and those loosening regulations; in other words, in the era of Trump, discarding Chevron might constrain the President’s stated goal of reducing regulatory burdens, Beyond the nomination of Judge Gorsuch to the high court, President Trump might have the opportunity to make additional appointments to the Court. Several of the more liberal justices on the Court have served for many years, creating the possibility that President Trump will have the opportunity to replace relatively reliable votes in favor of environmental protections with justices that would vote differently. With the opportunity, over the next four or eight years, to fill as many as three or four vacancies in the Court, President Trump has the potential to change, and almost inevitably weaken, environmental law in ways that are hard to predict.
News Article | March 1, 2017
Editor’s note [03/01/2017]: On March 1, the Senate confirmed Ryan Zinke as Interior Secretary. Read the resurfaced article below for insight into Zinke’s views on public lands and the environment. Donald Trump’s nominee for secretary of the Interior, Montana Rep. Ryan Zinke (R), started his confirmation hearing Tuesday by aligning himself with one of the giants of American conservation. “Upfront, I am an unapologetic admirer of Teddy Roosevelt,” Zinke said, adding that Roosevelt “had it right” when he protected millions of acres of federal lands and created the U.S. Forest Service. With a right-wing movement to wrestle control of public lands from the federal government gaining momentum, Zinke’s rhetoric offered conservationists some measure of comfort. The question now, many say, is whether Zinke will walk—not just talk—like Roosevelt, balancing conservation and development on public lands. “While he continues to paint himself as a modern Teddy Roosevelt, his very short voting record shows him repeatedly siding with industry,” says the Sierra Club’s Matthew Kirby, who works on western public lands issues. According to the League of Conservation Voters, only 3 percent of Zinke’s votes in Congress qualify as “pro-environment,” Oil and gas organizations like the Western Energy Alliance and the Independent Petroleum Association of America applauded Zinke’s nomination, but conservation-minded hunting and fishing groups welcomed it, too. Zinke, in other words, is a bit hard to box in. If confirmed, he will be responsible for a large and diverse department. Most of the federal agencies responsible for managing public lands and wildlife are housed within the Department of the Interior, including the National Park Service; the Bureau of Land Management (BLM), which manages lands for recreation, mining and energy development; and the Fish and Wildlife Service, which works to recover endangered species. The department oversees 500 million acres in total, or about a fifth of the land in the U.S. Most of that land lies in the U.S. West, and it is an unwritten rule that the Interior secretary post goes to a westerner. Zinke has served only one term in Congress and does not have a deep record on natural resources policy, but he is an outdoorsman who learned to hunt on public lands and therefore recognizes their value for recreation and wildlife. He is also from a state where fossil-fuel production on public lands is a cornerstone of the economy, and he believes Pres. Barack Obama’s administration has been too tough on the industry. Zinke’s views on easing energy development on public lands seem largely in line with his party. During Tuesday’s hearing, for instance, Zinke told Sen. John Barrasso he would support the Wyoming Republican’s effort to scrap a recently finalized BLM rule to limit methane waste from oil and gas drilling. Methane is a greenhouse gas as well as a source of energy, but it is often vented or burned as waste in drilling fields where the infrastructure does not exist to capture it and move it to market. The BLM rule would limit venting and flaring, and allow taxpayers to earn royalties on methane now treated as waste. Industry opposes the rule as unnecessary and expensive whereas environmental groups and the Obama administration say it is common sense. Peter Aengst, who works in Montana with the Wilderness Society, says the methane rule is one of the ways in which the Obama administration tried to modernize energy policy on public lands. “The Trump administration has vowed to unravel those (reforms),” he says. “That’s where I think Ryan Zinke is probably most concerning for those of us who care about the wise management of our public lands.” Zinke’s stances on some other big issues he will face as head of Interior are much murkier. He said Tuesday that he would work to restore trust between federal land managers and local communities, promising to be a “listener” rather than a “deaf adversary.” He repeatedly emphasized the need for more collaboration between the feds and locals. But as a congressman he opposed the Obama administration’s attempt to collaborate with states to keep the greater sage grouse from being listed under the Endangered Species Act. The bird is found in 11 western states, and a listing could have led to significant restrictions on land use across more than a hundred million acres. Instead, the administration developed state-based conservation plans that built on existing state efforts to protect the bird. “It’s an unprecedented engagement that happened with private landowners and with state agencies to make sure that bird was not listed,” says Land Tawney, president of Backcountry Hunters & Anglers, a Montana-based group that advocates for public lands access and wildlife protections. “Those plans need to be implemented.” Zinke dodged a question on how he would handle sage grouse protections at his hearing. It is similarly unclear where he will come down on controversial national monuments designated by Obama, such as Bears Ears. Utah’s congressional delegation is pressuring Trump to rescind the monument—an unprecedented, and possibly illegal, move—and Zinke would presumably be a close adviser on any changes to the monument. Both Aengst and Tawney are encouraged by a few of Zinke’s other positions, particularly his flat opposition to selling or transferring public lands to states or private interests, along with his support for permanently authorizing the Land and Water Conservation Fund, which funnels oil and gas royalties to projects that promote recreation, wildlife habitat, parks and wilderness. Zinke also said addressing the maintenance backlog at national parks would be one of his top priorities, indicating that money to keep up roads, trails and toilets in the parks should be included in the infrastructure bill President-Elect Donald Trump has promised. All in all, Tawney is optimistic, and expects sportsmen to have a voice in Zinke’s Interior Department. “He’s a straight shooter,” Tawney says. “We’re not going to agree on everything but at least you know where he sits and we can have a conversation.” Others in the conservation community remain skeptical. Kirby argues that opposition to selling off public lands should be a prerequisite for any Interior secretary, not a note of distinction. “You don’t get brownie points for that.” But context does matter. In a different political climate it might not have been newsworthy that Zinke went on record Tuesday saying climate change was not “a hoax” and humans had a role in causing it. Similarly, opposition to disposing of federal lands was not a given among the candidates Trump considered for the job. Zinke is expected to be easily confirmed by the Senate.
News Article | February 24, 2017
Congressional Republicans are set to kill a rule next week that has given the American public more power over how its 250 million acres of public lands are used. The rule was supported by their own party for many years. The Bureau of Land Management (BLM)is tasked with deciding on which parcels of land different activities like grazing, mining or drilling should be allowed. But in the past, many parties, like ranchers and hikers, had been largely left out of the decision-making process resulting in costly lawsuits. So the BLM came up with the Planning 2.0 rule, which aims to increase "opportunities for early engagement by state and local government, Tribes, partner agencies, stakeholders, and the public." "We were getting a tremendous amount of feedback particularly from western constituents, that our processes were too cumbersome, too long, not transparent enough," Jesse Juen, a retired BLM State Director from New Mexico, told Motherboard. He spent 32 years with the agency and now is President of the Public Lands Foundation, a nonprofit dedicated to the protection of public lands. "What we wanted to do was engage with a more collaborative process right up front. Before we even say 'ok we're going to do a plan,' actually just get out there with everybody and say 'what is it you want to see." he said. Planning 2.0 is widely supported by early adopter counties—many of whom are heavily Republican. Indeed, the rule came about in part because of many Republicans' calls for a change in management practice of public lands planning. Yet, in a strange turn of events, Republicans in Congress have decided to destroy the rule with the Congressional Review Act, an arcane but powerful tool that would not only overturn it, but make it impossible to reinstate the idea. The reasons House Republicans have given for overturning the rule match those for implementing the rule in the first place. Republican Representative Scott Tipton of Colorado, a leading sponsor of the effort to smother 2.0, said in a public statement that he was "deeply troubled" that the BLM didn't "provide an opportunity for meaningful public involvement during the development of its Planning 2.0 rule." "The rule," he wrote further, "would increasingly shift decision-making ability from those local communities and their local BLM officials to unelected bureaucrats in Washington." But in a hearing before the House Committee of Natural Resources, Chuck McAfee, a third generation farmer and landowner in Southwest Colorado, spoke in support of the threatened rule. He suggested that local politicians were more concerned about jockeying for power with the federal government than to heed the voices of their constituents who supported the rule. "I'm a local and I'm concerned," he said. "I'm a life member of the local chapter of the Rocky Mountain Farmers Union. We want our voices to be listened to and heard." Juen said people in the western US are often frustrated that lawmakers in Washington, who often have no experience on the ground, sometimes make decisions against the will of the people. "There are some genuine concerns," he said. But he contended that these concerns could easily be addressed and remedied by the BLM, and that using the CRA to nullify the rule is counter productive. "I do believe that's a political motivation." What that motivation is exactly, remains unclear. Phil Hanceford, policy expert at the Wilderness Society, a nonprofit dedicated to protecting the nation's public lands, told Motherboard in a phone call that it's "a knee-jerk reaction to rules finalised by the previous administration," he added. "That's it. This should be a non-issue." The CRA is so powerful that it had only been previously used once successfully since 1996. Under this current Congress, however, Republicans have already used it twice to undo stream protection and fossil fuel transparency rules. The Western Governors Association, which represents the governors of 19 Western states, has been critical of aspects of the rule, but even so, recognizes the folly of using the CRA to scrap it. It sent a letter to Congress in early February asking them to hold off. "The Congressional Review Act is a sledgehammer," said Hanceford. "To the extent that there are problems with the rule, the CRA is the worst thing that could be used" to fix them, he said.