North to the Future: Alaska and the Risks of Pursuing a Trump Legacy

Posted on April 5, 2019 by Peter Van Tuyn

On the last Friday in March, Judge Sharon Gleason of the Federal District Court for the District of Alaska issued two opinions in closely-watched cases* concerning federal public lands and waters in and offshore of Alaska.  In both cases, the Trump administration’s actions were overturned by the court, having immediate impact on two State of Alaska priorities and potential impact on a number of other State and private development efforts. 

The first case concerns a land trade approved by Interior Secretary Ryan Zinke in which the United States agreed to transfer formal Wilderness in the Izembek National Wildlife Refuge to an Alaska Native Corporation.  Izembek Refuge is internationally significant and of critical importance to many species of wildlife, including migratory waterfowl.  For example, virtually the entire global populations of Pacific Brant and Emperor Geese migrate through Izembek.  The land trade was intended to enable the construction of a road between the Alaska communities of Cold Bay and King Cove.  In multiple analyses since the 1980s the Interior Department had found that such a road would harm wildlife in the Refuge.  In 2013 Interior Secretary Sally Jewell formally rejected a land trade due to harm it would cause to “irreplaceable ecological resources,” and because “reasonable and viable transportation alternatives” exist between the communities.  In 2018, Secretary Zinke reversed course and approved the land trade.  A coalition of conservation groups then sued.

In rejecting the land trade, Judge Gleason found that Secretary Zinke had not addressed anywhere in the record his reasons for reversing course; indeed, he had not even acknowledged the change in agency position. Relying on the seminal U.S. Supreme Court administrative law cases of Motor Vehicle Manufacturers v. State Farm and FCC v. Fox, which require an acknowledgement and reasoned explanation for such a change of course, Judge Gleason invalidated the land trade, writing that while a court should “‘uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,’ a court may not ‘supply a reasoned basis for the agency’s action that the agency itself has not given.’”

Later that same day Judge Gleason issued an opinion in a challenge to a 2017 President Trump executive order concerning areas where offshore oil and gas leasing can take place.  In that case, conservation organizations and an Alaska Native-focused NGO challenged Trump’s  revocation of President Obama’s earlier withdrawals from oil and gas leasing of most of the United States’ Arctic Ocean and a number of canyons within the Atlantic Ocean. 

This lawsuit turned on an interpretation of presidential withdrawal authority under the Outer Continental Shelf Lands Act. Section 12(a) of OCSLA provides the president with the clear authority to withdraw certain areas of the Outer Continental Shelf from oil and gas leasing, and the central question in the lawsuit was whether it also provides authority for a president to undo existing  withdrawals that were intended, like Obama’s Arctic and Atlantic actions, to be of unlimited duration.  Judge Gleason found that section 12(a) authority works only in the direction of presidential withdrawals, and not the undoing (or “revocation”) of such withdrawals.

Looking to the future, should Acting (and likely soon-to-be-confirmed) Secretary David Bernhardt revisit the Izembek land trade, he will need to either win on appeal during his tenure (should he take one) or directly confront the agency’s previous rejection of a land trade and the reasons for that rejection.  Furthermore, Trump’s “energy dominance” effort to expand offshore oil drilling in the Arctic Ocean is dealt a blow.  Notably, the OCSLA issue is similar to one raised in litigation over Trump’s revocation of National Monument designations under the Antiquities Act and Judge Gleason’s treatment of the issue thus may influence other courts. 

More broadly than even these implications, the two Gleason decisions may portend the result of other Alaska-related federal policy and decision-making.  For example, the Corps of Engineers is fast-tracking Clean Water Act section 404 permitting for the proposed Pebble mine in Southwest Alaska.  And the proposed mine’s developers are trying to get EPA to reverse course on its intended use of its Clean Water Act section 404(c) authority to restrict or prevent any Corps’ permit for the mining of the Pebble ore deposit.  EPA’s proposed restrictions were based on a Bristol Bay Watershed Assessment, which the developer had waived challenging in settling a previous lawsuit with EPA.  Given the clarity of Judge Gleason’s Izembek opinion on what it would take for the agency to reverse course, and the settled science of EPA’s watershed assessment, securing a 404 permit won’t be as simple for proponents as winning a policy argument, which appeared to be the case with the Izembek land trade. 

Looking back to the Interior Department, the Bureau of Land Management is moving forward with oil and gas lease sales on the Coastal Plain of the Arctic Refuge.  Critics of that effort, including a former Interior official, say the legal process is being illegally shortcut, which is an attribute it may thus share with the Izembek land trade.  Interior is also speedily-redoing a 2013 management plan for the 23 million acre National Petroleum Reserve with a goal of expanding oil and gas leasing in the Reserve starting in 2020.    

Ironically, on Thursday, March 28, the day before Judge Gleason issued her decisions, Interior Secretary-nominee David Bernhardt had his confirmation hearing before the U.S. Senate Energy and Natural Resources Committee.  This committee is chaired by Alaska’s Senator Lisa Murkowski, who is a supporter of expanded oil and gas development on federal lands in and offshore of Alaska.  The judicial smackdown the next day, however, is sure to complicate Bernhardt’s efforts to implement such an agenda before the next presidential term, which is the timeframe which appears to underly Interior’s and other agencies’ efforts on Alaska issues.  And if the rush to secure more decisions in this presidential term leads to more losses in court, Alaska development interests could face complicated bureaucratic and legal landscapes, and strong political backlash, well into the future.

* Izembek case:  Friends of Alaska Wildlife Refuges, et al, v. Bernhardt, 3:18-cv-00029-SLG (March 29, 2019, D. Ak).

* Arctic OCS case:  League of Conservation Voters, et al, v. Trump, 3:17-cv-00101-SLG (March 29, 2019, D. Ak)

 

The Proposed Pebble Mine: Too Toxic for Trump?

Posted on April 17, 2018 by Peter Van Tuyn

EPA Administrator Scott Pruitt began his tenure by decrying the so-called “sue and settle” policy approach, where EPA settles lawsuits brought against it in a manner that dictates EPA actions on court-approved deadlines, often well into the future.Observers were therefore somewhat surprised when, two and a half months later, EPA settled a lawsuit brought against it years earlier by the Pebble Limited Partnership (PLP), the want-to-be developers of the proposed Pebble mine in Alaska.  PLP declared victory and touted the settlement as providing it a “clear path” to the permitting process for the proposed mine.

It turns out that Administrator Pruitt himself made the decision to settle this lawsuit.  As reported in media, “[w]ithin hours of meeting with a mining company CEO, the new head of the US Environmental Protection Agency directed his staff to withdraw a plan to protect the watershed of Bristol Bay, Alaska, one of the most valuable wild salmon fisheries on Earth.”

The Pebble ore deposit sits at the headwaters of Bristol Bay, and the region produces roughly half of the world’s commercial sockeye salmon catch, with over 56 million sockeye returning to the Bay’s fresh waters in 2017 alone.  The commercial fishery supports 14,000 full and part time jobs and generates roughly 1.5 billion in annual revenue.  Bristol Bay salmon also support the subsistence lifestyle of area residents, and are one reason why Bristol Bay is a sought-after sport fishing destination.  The Pebble ore deposit is massive, contains low-grade quantities of copper, gold and molybdemum, and also has the potential to produce acid as the ore is disturbed.  It also lies at the headwaters of two of Bristol Bay’s most productive river systems.  In 2014, the EPA found that the mining of the Pebble ore could result in “irreversible” impacts to fish habitat.  EPA thus used its authority under Section 404(c) of the Clean Water Act to propose certain restrictions on the mining of that deposit to protect the salmon fishery.

Notwithstanding the response of the mine developer, a closer look at the settlement reveals that EPA did not abandon its proposed restrictions, but rather only committed to an agency process “to propose to withdraw” them.  Pursuant to the settlement, EPA initiated a public process and held public hearings in Bristol Bay, seeking input on whether to actually withdraw the proposed protections.  In that process, EPA received over one million comments, with over 99% of the comments supporting the proposed restrictions and asking EPA to leave them in place.

In what was called a “surprise reversal” by some observers, in January of this year Administrator Pruitt decided to leave the proposed restrictions in place.  In announcing his decision, Administrator Pruitt stated that “it is my judgment at this time that any mining projects in the region likely pose a risk to the abundant natural resources that exist there. Until we know the full extent of that risk, those natural resources and world-class fisheries deserve the utmost protection.”

The result of this decision is that the EPA’s proposed restrictions under Section 404(c) will remain in place as the U.S. Army Corps of Engineers processes PLP’s Section 404 permit application for the mine, submitted by PLP to the Corps in December 2017.  Looking forward, the Corps cannot issue a final permit decision approving the mine unless and until EPA’s concerns are fully addressed. EPA retains the opportunity to finalize its proposed restrictions before the Corps makes its decision.  This leads one to wonder, as did many people from Bristol Bay, whether the proposed Pebble mine is simply “too toxic” for Trump?  

Disclosure:  Bessenyey & Van Tuyn, L.L.C. represents a client that opposes the proposed Pebble mine because of risks to Bristol Bay salmon.

New Frontiers of Environmental Advocacy

Posted on August 21, 2013 by Eugene Smary

Since one of the objectives of the ACOEL blog is to promote thought and discussion, I have decided to plunge in with abandon.  Hopefully the objective of promoting discourse will be met.

We all have reconciled ourselves to the fact that environmental advocacy has become very politicized on all portions of the political spectrum—so much so, that environmental advocacy oftentimes morphs into political/partisan advocacy.  In the last several years we have seen environmental advocacy reach a new level.  I leave it to the reader to decide whether that level is high or low.  I have my point of view, and I suspect the reader will see that soon enough.

Two projects, one proposed, and one still only in the realm of “contemplation” serve as lightning rods for this new form of environmental advocacy:  the Keystone XL Pipeline project and the potential Pebble Mine.  Keystone XL formally has been proposed.  The Pebble Mine has yet to have a permit application submitted but nonetheless is the subject of protracted and unique opposition.

It is becoming increasingly common to witness the advocacy relating to the Keystone XL Pipeline project—unprecedented in both its breadth and emotional intensity--from proponents and opponents alike.  Proponents have tended to follow the more traditional advocacy approach of published opinion pieces and structured meetings and association support.  The opposition has been much less traditional.  Certainly there has been a history of focused opposition to some projects viewed by some as adversely impacting the environment, but those have been very focused locally or at most regionally.  We all recall “tree sitters” opposing harvesting of redwood timber.  Street theatre is not uncommon.  Here in Michigan I have seen an individual dressed up as a skeleton in opposition to use of a school built on an abandoned municipal landfill, or dressed up as a fish in opposition to a proposed hard rock mine.  The call for civil disobedience in opposition to Keystone XL goes well beyond street theatre, however.  It is something that has not been seen, at least in my memory, since the days of the Civil Rights and Vietnam War protests.  Lost in all of the demonizing of the development of hydrocarbons in Alberta, Canada’s northern reaches (called “oil sands” by proponents and “tar sands” by opponents) is the fundamental impact that a denial of the Presidential Permit necessary to construct the pipeline will have on the diplomatic relationship between Canada and the United States.   The failure to issue a permit thus far has contributed substantially to a reconsideration of Canadian policy goals and economic development.  No longer is the Canadian policy as focused and U.S.-centric as it once was.  Canada is reevaluating the degree to which it can continue to trust its southern neighbor.  It is not a stretch of the imagination to read the tone and tenor of the “policy” discussion and advocacy antics as being officious.  An offer to “help” with the evaluation of the climate change risk of the bitumen production and methods of amelioration, while perhaps well-intentioned, certainly is capable of being seen as sanctimonious, or even arrogant.  The old images of the “ugly capitalist”, and the “ugly American” are being supplemented by images of the “ugly environmentalist.”  The increasingly strident nature of the anti-Keystone advocacy ignores or dismisses broader foreign policy considerations.

Now, if that is not enough to get discussion going, I don’t know what is.  But, on the off chance that there is need for more encouragement, let me raise one other advocacy project:  the contemplated Pebble Mine located in the Bristol Bay, Alaska, watershed.  Pebble Mine may not be as well-known nationally as Keystone XL, but some NGOs are trying to make certain that it does become known—and opposed.  If Pebble is known for anything, it is that it is the subject of an environmental assessment being undertaken by U.S. EPA, in advance of any permit application having been filed and without any proposed mining plan having been developed.  Now Pebble has a major mail order retailer using its customer-based mailing list vigorously and bluntly to oppose the Pebble project.  Within the last several weeks I received a “fly fishing” catalogue from this company, a company from which I have purchased products for well over 30 years.  I started seeing full-page advertisements opposed to Pebble in the interior of its catalogues within the last year.  This most recent mailing is the first time I received a catalogue whose cover was emblazoned with the words “Pebble Mine” inside a red circle with a slash through it and the admonition to “JOIN THE FIGHT” at the company’s website.

In an age where social issues are increasingly being highlighted in commercial advertisements, perhaps I have been lulled into thinking that subtlety makes such advertising acceptable.  There is nothing subtle about this fly fishing catalogue’s assault on a mining project. Opposition to mining in sulfide ore bodies appears to have become a focal point for the leadership of this company.

This is a free country and we all enjoy freedom of speech.  The ultimate power, of course, is to take one’s business elsewhere, but I just found this to be a rather unique “in your face” form of environmental advocacy.  If I want to receive environmental advocacy—from any quarter, I will ask for it.  If I wish to purchase goods and get on a mailing list for that purpose, I expect to get future mailings about similar products.  I do not expect—or authorize—use of my name and address to receive decidedly political advertising nor biased social commentary.  I know how and where to get plenty of that in a setting where it is both thoughtful and analytical.  Combining a commercial catalogue with a political advertisement, or rather turning a catalogue into a political advertisement, crosses the line.  Perhaps it is a line that we as a society are willing to tolerate in this age of political intolerance.  We will see.

Now, let the discussion begin.