What’s Going on with Keystone XL?

Posted on February 20, 2019 by Mark Walker

As one of his earliest executive actions, and following through on campaign promises, on January 24, 2017, President Trump signed an Executive Memorandum (EM) inviting TransCanada to resubmit its application for an international border crossing permit for the Keystone XL pipeline.  To facilitate prompt action, the EM directed the Secretary of State to make a final decision on the application within sixty days utilizing “to the maximum extent permitted by law” the State Department’s January 2014 Environmental Impact Statement (EIS).

On March 24, 2017, a Presidential border crossing permit was issued for Keystone XL based upon the findings in the 2014 EIS.  The Indigenous Environmental Network and others immediately appealed in federal court in Montana (Case 4:17-cv-00029-BMM, District of Montana, Great Falls Divisions) claiming, among other reasons, that the record of decision (ROD) failed to adequately explain why the State Department had reversed Obama’s denial of the permit in 2015 because approval of the pipeline “would undermine U.S. climate leadership.”

On November 8, 2018, Judge Brian Morris issued a 53-page order which enjoined further construction activities.  This was based in part on the Court’s finding that the 2017 ROD did not provide a “reasoned explanation” for its reversal in policy course.While acknowledging the Trump Administration’s authority to change policy and reverse course, the Court held that, “when reversing a policy after an election, an agency cannot simply discard prior factual findings without a reasoned explanation.” 

The 2017 ROD attempted to justify the shift in policy by finding that, since 2015 “there have been numerous developments related to global action to address climate change, including announcements by many countries to do so” and “a decision to approve [the] proposed Project would support U.S. priorities relating to energy security, economic development and infrastructure.”  The Court held that this was not sufficient because it failed to adequately explain why the climate change findings in the 2015 ROD were no longer applicable.  Quoting from a U.S. Supreme Court decision, the Court held, “an agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past.”  

The Court also held that the use of the 2014 EIS violated NEPA in several respects, including: (1) it was based upon outdated oil market data (the 2014 EIS predicted $100 to $140 per barrel oil for the next 20 years); (2) it failed to evaluate the cumulative climate impacts from the Alberta Clipper pipeline; (3) it failed to complete the required cultural resources analysis; and (4) it was based on outdated information regarding the frequency of oil spills and, therefore, it also did not adequately assess the potential impact of oil spills on certain endangered species.

The Court’s order gives the Trump Administration the opportunity on remand to supplement the 2014 EIS to address the deficiencies and an opportunity to provide a reasoned explanation for its policy reversal.  The EIS supplementation will likely take several years to complete.  It looks like the Keystone XL border crossing permit is now into the next election cycle, and certainly more appeals will follow.

FWS Goes Back to Square One On Listing the Wolverine. It’s Not Going to Be Any Easier This Time Around.

Posted on October 27, 2016 by Seth Jaffe

In April, Judge Dana Christensen vacated the Fish and Wildlife Service’s decision to withdraw its proposed listing of a distinct population segment of the North American wolverine WolverineSnowas threatened under the Endangered Species Act (“ESA”).  Bowing to the inevitable, the Fish and Wildlife Service ("FWS") has published in the Federal Register a formal acknowledgement that the Court’s vacatur of the withdrawal of the proposed listing returns the situation to the status quo.

In other words, the proposed rule that would have listed the wolverine distinct population segment ("DPS") is back in play.  Specifically, the FWS announced that

"we will be initiating an entirely new status review of the North American wolverine,hugh-jackman-wolverineto determine whether this DPS meets the definition of an endangered or threatened species under the Act, or whether the species is not warranted for listing.

FWS also reopened the comment period on the proposed listing and invited the public to provide comment, identifying nine specific areas in which it sought comments, including

"Information on the projected and reasonably likely impacts of climate change on the wolverine and its habitat, including the loss of snowpack and impacts to wolverine denning habitat.

This is all well and good and certainly required under Judge Christensen’s order, but neither Judge Christensen nor FWS has the tools necessary to address the core issue here, i.e., the unwieldy nature of the ESA.  It simply wasn’t designed to solve all of the ecological problems resulting from climate change.

It would be nice if Congress weren’t completely dysfunctional.

ALL SPECIES MATTER

Posted on August 25, 2016 by Stephen Herrmann

GONE. The Bramble Cay melomys is no more.  The small rodent, the only mammal endemic to the Great Barrier Reef, is the first documented extinction of a mammal species due to contemporary climate change.  So says Luke Leung, a scientist from the University of Queensland.  “The key factor responsible for the death of the Bramble Cay melomys is almost certainly high tides and surging seawater, which has traveled across the island” destroying the animal's habitat and food source, said Dr. Leung.

Australia’s most isolated mammal had not been seen since 2007.  The report confirming the extinction of the Bramble Cay melomys, however, was not released until June 2016, in order to give scientists time to verify the loss of the species.  Upon release of the report, Dr. Leung said it was the first such extinction due to contemporary climate change.  He said his team “collected data, looked at other research and left no stone unturned” before making that assertion.  Dr. Anthony Barnosky, a professor at the University of California at Berkeley and a leading expert on climate change's effect on the natural world, said the claim seems “right on target to me”.

Both Drs. Leung and Barnosky believe that the climate change responsible for the demise of the melomys is caused by humans.  Whether caused by humans, aided and abetted by humans or merely not abated by humans, the extinction of the Bramble Cay melomys is, sadly, unlikely to be the last species loss to be caused by the effects of contemporary climate change.  How many more?

WHO IS IN CHARGE HERE?

Posted on May 26, 2016 by Kevin Beaton

Until recently I thought state water quality agencies with oversight from EPA were in charge of setting water quality standards, establishing mixing zones and similar activities.  However, the National Marine Fisheries Service (NMFS) and the United States Fish and Wildlife Service (USFWS) has recently served notice that they are the new water quality sheriffs in the Northwest.

It is well known that the Endangered Species Act (ESA) is a comprehensive statute designed to protect and recover species that are listed as threatened or endangered by the USFWS and the NMFS (collectively referred to as "Services").  One of the key provisions in the ESA is 16 USC § 1636 (or Section 7) which requires federal agencies to utilize their authority to conserve endangered species and "consult" with the Services whenever any discretionary action by the acting federal agency has the potential to negatively affect listed species.  Many no doubt recall the decision in TVA v. Hill, 437 U.S. 153 (1978), in which the Court determined that Section 7 required the acting federal agency to halt construction of an almost completed major federal dam in Tennessee (Tellico Dam) because it would undisputedly eradicate the listed species ("snail darter" or perch), destroy its critical habitat and therefore completion of the dam would clearly violate Section 7.                                                                                                                        

What constitutes "jeopardy" and destruction of critical habitat under the ESA has come a long way since TVA v. Hill.  The ESA gets a lot of play in the Northwest principally because there are large tracts of undeveloped federal land, human population is relatively sparse and pristine waters combine to provide habitat for many listed aquatic species such as various species of salmon.  In one of the latest iterations of what constitutes "jeopardy" the Services recently determined in lengthy biological opinions that EPA's approval (some twenty years ago) of Idaho's Water Quality Standards for certain toxic metals would jeopardize the continued existence of listed species and destroy or adversely modify critical habitat. 

There is a question whether EPA approval of state water quality standards pursuant to § 303 of the CWA is the type of discretionary action that even triggers ESA consultation.  See National Association of Homebuilders v. Defenders of Wildlife, 551 U.S. 644 (2007) (Section 7 consultation not required when EPA authorizes state to take over the NPDES permit program under § 402 of the CWA).  Assuming consultation is required, certainly there had been a lengthy delay in EPA and the Services completing consultation on Idaho Water Quality Standards (over twenty years).  This delay gave rise to a lawsuit brought by regional environmental groups to force completion of the consultation.  See Northwest Environmental Advocates v. The National Marine Fisheries Service, USDC Idaho, Case No. 1:13-cv-00263-EJL. 

But, how can a water quality criteria jeopardize the existence of an endangered species?  Water quality standards under the CWA are goals set by each state for state surface waters.  NPDES Permits must meet state water quality standards and if a waterbody is not meeting standards then states must adopt pollution control plans (known as "TMDLs") to bring a waterbody into compliance also subject to EPA approval.  Adoption of criteria itself cannot jeopardize endangered species or for that matter save a species.

If one has the fortitude to power through the Services lengthy biological opinions, which were not subject to public comment, there is no finding that state standards at or below the current criteria are actually harming any fish in the thousands of miles of streams and rivers affected by the opinions.  Rather the Services take exception to the somewhat esoteric process by which EPA develops national recommended water quality criteria (which most states ultimately follow).  The Services found EPA should have relied on different laboratory studies in developing and approving criteria.  Many of the laboratory studies the Services relied upon do not even involve listed species.

The Services then suggested that EPA must adopt replacement criteria (or force the state to do so) over the next few years via reasonable and prudent alternatives (or RPAs) to avoid the alleged jeopardy.  An RPA are measures "suggested" by the Services under Section 7 to the action agency (EPA) to avoid jeopardy which are within the discretion of the action agency and are economically and technically feasible.  In the meantime the Services suggested as an interim measure how EPA should regulate point source dischargers into waters containing listed species by meeting certain prescribed mixing zones.

While the Services’ jeopardy determinations on Idaho's standards are a far cry from jeopardy to the snail darter caused by the construction to the Tellico Dam many years ago, the Services’ findings may go unchallenged.  It is likely EPA will follow the RPA's (or force the state to do so) for fear of another lawsuit that EPA is violating its obligations under Section 7.  Likely the only remedy to question the Services’ jeopardy determinations may be a judicial challenge to the Biological Opinions.  However in such a challenge a court would be forced to evaluate the "science" behind the Services’ jeopardy determinations which is an area the courts generally will defer to the expertise of the agency.  One would think that EPA or state water quality agencies would be the experts on setting water quality standards and establishing mixing zones, but the Services will no doubt claim they are now the experts.  Sometimes it is difficult to figure out who is in charge.