Additional Blogs of Interest

Trump Proposes NEPA Changes

Posted by Whitcomb, Selinsky, PC on Mar 10, 2020 11:25:38 PM

Trump Proposes Limiting Environmental Reviews and Eliminating Climate Change Considerations From NEPA

On the 50th anniversary of the National Environmental Policy Act (“NEPA”), the President has proposed making the first regulatory change to the Act in over 40 years. The White House Council on Environmental Quality (“CEQ”) recently proposed changes to NEPA. The Act requires environmental reviews of projects like highways and pipelines. The changes to NEPA will reduce the number of projects that would trigger environmental reviews, expand the number of project categories that can be exempted from NEPA review, and allow companies to conduct their own environmental assessments.

NEPA

NEPA was signed into law in 1970 under the Nixon Administration. The purpose of NEPA is to “use all practicable means to create and maintain conditions under which man and nature can exist in productive harmony.” It requires federal agencies to assess the environment impacts of their proposed actions before making those decisions. This includes making decisions on permit applications, adopting federal land-management actions, and making decisions concerning highways and publicly-owned facilities.

Trump Proposal

Under the new changes that President Trump has proposed, the scope of NEPA would dramatically change. Large-scale projects like highways, pipelines, and mines would be exempt from the Act’s requirements. In a speech President Trump declared that “Most of America’s most critical infrastructure projects have been tied up and bogged down by an outrageously burdensome federal approval process.” President Trump added, “these endless delays waste money, keep projects from breaking ground and deny jobs to our nation’s incredible workers.”

Proponents of NEPA “Modernization”

The limits on environmental reviews have been touted and criticized by sides of the political aisle. Those supporting the changes to NEPA have stated it would be good for industry, while those who are opposed argue it will be detrimental to environmental and public health. In November, over thirty industry groups that included the Chamber of Commerce and American Petroleum Institute, called on the CEQ to hurry the release of the NEPA “modernization.” As part of the “modernization,” the CEQ is expected to announce federal agencies will not be required to consider the impact of federal projects on “cumulative” climate change. A statement by Wyoming Governor, Mark Gordon, expressed support for the narrowed focus of NEPA. He stated Wyoming is proud of its environment and protective of its natural resources, while also stating NEPA “is not a platform to engage in speculation and it is not a convenient mechanism to obstruct development.”

Critics of NEPA Revision

Critics of the proposed changes argue that upending NEPA is irresponsible considering how it would negatively impact CO2 emissions and climate change. Environmental groups and advocates have raised concerns, stating that the NEPA regulatory process offers protections for communities that are directly affected by big projects. Raul Garcia, senior counsel at Earthjustice, stated, “A lot is riding on this.” He expressed concern that expediting the NEPA process would lead to “environmental reviews cutting corners and overlooking potentially hazardous impacts.” Gina McCarthy, former Environmental Protection Agency (“EPA”) Administrator in the Obama Administration and current president and CEO of the Natural Resource Defense Council (“NRDC”), has said the NRDC will use every tool it has to stop this proposal.

Critics have also said the environmental rollback could impact minorities and low-income communities the hardest. An article by Cheryl Katz in Scientific American indicates that air pollution contains more hazardous ingredients in nonwhite and low-income communities than that of affluent white ones. Katz writes, “the greater the concentration of Hispanics, Asians, African Americans or poor residents in an area, the more likely that potentially dangerous compounds such as vanadium, nitrates and zinc are in the mix of fine particles they breathe.” Latinos receive the highest exposure to these compounds, while whites experience the lowest exposure to such compounds. A study published in the American Journal of Public Health in 2018 echoed the results of Cheryl Katz’ article in Scientific American. It indicates persons of color suffer a greater burden of particulate matter air pollution than white people. According to the study, race is the greatest predictor of exposure to health-threatening particulate matter.

Stay Tuned

If Congress votes in support of the changes to NEPA (which is far from certain), it is likely that the decision will generate considerable controversy. Statutory changes are subject to public hearings before Congress votes to make a change. The proposed statutory changes will most likely face opposition from environmental groups. If the revisions are enacted, both public hearings and court proceedings will delay their implementation. The results of the upcoming presidential elections may also affect the outcome, depending on who is elected. Stay tuned for more information on the proposed changes to NEPA. If you have concerns or questions about NEPA, contact Whitcomb Selinsky PC and talk to one of our attorneys about the impact of the proposed changes.
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Tags: environmental law

Sunset Roadless Area Remanded to Study Impact on Water and Fish Resources

Posted by Whitcomb, Selinsky, PC on Feb 24, 2020 12:17:56 AM

U.S. District Court Remands Case Challenging Environmental Impact Statement

A group of environmental organizations sought to protect public lands and the environment by seeking judicial review of a decision by the Department of the Interior, Office of Surface Mining Reclamation and Enforcement (“OSM”). The OSM decision recommended approval of a mining plan that authorizes the mining of federally owned coal on public lands by Mountain Coal Company (“MCC”). The plaintiffs, WildEarth Guardians, High Country Conservation, The Center for Biological Diversity, and the Sierra Club, argue the decision must be set aside because it did not comply with the National Environmental Policy Act (“NEPA”).

NEPA

NEPA requires federal agencies to assess the environmental effects of their proposed actions before making major decisions. Title I of NEPA contains a policy that requires the federal government to use all practicable means to ensure that humans and nature can exist in productive harmony. Federal agencies do so by preparing Environmental Impact Statements (“EIS”) and evaluating the potential impacts the agency’s proposed action may have on the environment, The EIS explores all reasonable alternatives to a proposed action. Reasonable alternatives are options “bounded by some notion of feasibility.” Departments and agencies are not required to consider alternatives that are too “remote, speculative, impractical, or ineffective.”

Mineral Leasing Act (“MLA”) and Surface Mining Reclamation

The MLA allows the Secretary of the Interior to lease federal coal resources for mining operations. However, the operator is required to submit a plan for the Secretary’s approval if such operations “might cause significant disturbance of the environment.” Following consideration of the EIS and other relevant information, the Office of Surface Mining Reclamation and Enforcement (“OSM”) prepares and submits a decision to the Secretary of the Interior, recommending approval or disapproval of the mining plan. OSM is required to base its recommendation on information prepared for NEPA compliance, and recommendations of federal agencies and the public.

Mine Location and Plan

The West Elk coal mine is an underground mine located beneath public lands managed by the Forest Service. The mine sits adjacent to the Sunset Roadless Area. The area sits within the Gunnison National Forest, containing 5,800 acres of undeveloped forest and scrub land. The mine first began operating in 1981. Coal operation activities began in 2018. A new mining plan would expand Mountain Coal Company (“MCC”) operations into the Sunset Roadless Area. The plan would build 8.4 miles of new roads and install 43 methane drainage wells that would release an estimated 11.91 million tons of methane.

Legislative History

The United States Forest Service (“USFS”) and Bureau of Land Management (“BLM”) issued decisions in 2012 and 2013 allowing MCC to expand the West Elk Mine. The expansion was challenged in 2014 in High Country Conservation Advocates v. United States Forest Serv., 67 F. Supp. 3d 1262 (D. Colo. 2014), where the Court concluded MCC violated NEPA for not considering the environmental costs in the cost/benefit analysis. The Court vacated the exploration plan and MCC was enjoined from its proposed expansion. In 2017 the BLM and USFS reinstated the coal mine exception to the Colorado Roadless Rule and began proceedings to lease part of the Sunset Roadless Area to MCC once again. A Supplemental and Final Environmental Impact Statement (“SFEIS”) was issued to comply with NEPA. Environmental advocacy groups challenged the plan in High Country Conservation Advocates v. United States Forest Serv., 333 F. Supp. 3d 1107 (D. Colo. 2018) but were unsuccessful. Mining was scheduled to begin at the beginning of 2020 when WildEarth Guardians sought judicial review of the decision by the OSM in the present case. The court heard oral arguments in October 2019, and the U.S. District Court delivered its decision a month later.

The Court’s Decision: Impacts on Climate Change

The United States District Court found that the environmental conservation groups waived their argument regarding the cumulative impact of the mining expansion on climate change. The case, Forest Guardians v. U.S. Forest Serv., 641 F.3d 423, 430 (10th Cir. 2011), indicated, “plaintiffs must exhaust available administrative remedies before the USFS prior to bringing their grievances to federal court.” Claims that are not before an agency are waived, unless the claims are ‘obvious.’ The environmental groups did not present the argument of the mining expansion’s impact on climate change in the leasing stage. This allowed the agency to “reasonably conclude” the new information did not significantly alter the analysis. The court stated the SFEIS sufficiently weighed the threat of federal coal program on climate. It added, “neither I nor conservation groups can substitute our judgment for the agencies.’” It found the agency did not act arbitrarily with respect to the expansion’s impact on climate change.

The Court’s Decision: Impact on Water and Fish

The Court concluded that the agencies violated NEPA by failing to conduct additional studies on perennial streams. The SFEIS contained contradicting statements in this regard. The impact statement said that “two short perennial stream reaches exist within the modification area.” The agencies’ analysis, however, relied on the SFEIS statement that “there are no known perennial springs in the lease modification area.” The SFEIS included, without limitation, information favorable to mining expansion. The SFEIS said that there was no expected impact on local fish “due to lack of perennial water.” The court found that the SFEIS failed to include valuable information from the NEPA Adequacy Review Form (“NARF”). Unlike the SFEIS, the NARF included information from the 2016 Annual Hydrology Report and stated that perennial streams did exist and would be affected by the mine expansion.

U.S. District Court Holding

The Court remanded the mining plan record of decision (“ROD”) to the OSM for further consideration of the methane flaring alternative and its potential impact on water and fish resources. The other agency actions were vacated, and the defendants were enjoined from proceeding with the mining plan.

Mining expansion could have brought more jobs to Colorado. However it would have done so at the cost of the surrounding environment and would have contributed to the problem of climate change. If your business has an environmental issue that it needs to resolve, we recommend that you contact Whitcomb, Selinsky PC and speak with one of our attorneys.
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Tags: environmental law

Sunset Roadless Area Remanded to Study Impact On Resources

Posted by Whitcomb, Selinsky, PC on Jan 6, 2020 11:00:00 AM

A group of environmental organizations sought to protect public lands and the environment by seeking judicial review of a decision by the Dept. of Interior's (DOI) Office of Surface Mining Reclamation and Enforcement (OSMRE). The decision recommended the approval of a mining plan that authorizes the mining of federally owned coal on public lands by Mountain Coal Company (MCC). The plaintiffs, WildEarth Guardians, High Country Conservation, The Center for Biological Diversity, and the Sierra Club, argued the decision must be set aside because it did not comply with the National Environmental Policy Act (NEPA).

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Tags: environmental law

Need for Hazardous Waste Remediation Moot?

Posted by Whitcomb, Selinsky, PC on Jan 2, 2020 11:00:00 AM

In its ongoing battle for a cleaner, safer environment, Nuclear Watch New Mexico sued the Department of Energy (DOE) and Los Alamos National Security, LLC (LANS) in U.S. District Court for the District of New Mexico alleging violations of the Resource Conservation and Recovery Act (RCRA) for the failure to complete cleanup and remediation of nuclear wastes at Los Alamos National Laboratory (LANL). It alleged the defendants failed to submit investigation reports, remedy completion report for material disposal areas, and install monitoring wells and documentation associated with the wells. DOE, LANS, and the New Mexico Environment Department (NMED), an intervenor, all cross filed for summary judgment claiming the civil penalty claims were moot.

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Tags: environmental law

Brownfield Site Purchaser Sues U.S. Government

Posted by Whitcomb, Selinsky, PC on Dec 27, 2019 11:00:00 AM

Cranbury Brick Yard was first owned by Unexcelled Manufacturing Co. The company made bombs, ammunition, grenade fuses for the U.S. military during World War II and the Korean War. A warehouse at the site containing grenade fuses exploded in 1954 causing serious damage to the site. The military helped clean the site, but unexploded weapons and hazardous materials were left behind. The factory shut down and contamination remained on site.

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Tags: environmental law

Company Loses Right To Mine Near Yellowstone

Posted by Whitcomb, Selinsky, PC on Dec 17, 2019 11:00:00 AM

In 2018, the Park County Environmental Council and the Greater Yellowstone Coalition filed a Motion for Vacatur of Exploration License against the State of Montana. The two environmental advocacy groups argued the 2011 Legislature’s amendment to the Montana Environmental Policy Act (MEPA), §75-l-201(6)(c) and (d) were unconstitutional and Lucky Mineral’s exploration license issued by the State should be vacated. The groups argued the amendments violate Montana’s Constitutional obligation to provide protection of theenvironment and infringe on the Plaintiffs’ rights to a clean and health environment.

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Tags: environmental law

Coalition Sues DOE To Enforce Energy-Conservation Standards

Posted by Whitcomb, Selinsky, PC on Dec 12, 2019 11:06:00 AM

A coalition of States, municipalities, environmental, and consumer advocacy groups sued the United States Department of Energy (DOE) under the Energy Policy and Conservation Act"s (EPCA) citizen-suit provision in late 2018. The district court sided with the plaintiffs stating that DOE had a non-discretionary duty to publish standards in the Federal Register and its refusal to do so violated the law.The United States Court of Appeals affirmed the district court’s ruling directing DOE to publish four energy-conservation standards in the Federal Register.

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Tags: environmental law

EPA Allows Pesticide Linked To Neurological Conditions In People

Posted by Whitcomb, Selinsky, PC on Dec 10, 2019 11:06:00 AM

It has been a long and arduous journey for environmental groups and organizations advocating on behalf of farm workers in their attempt to ban chlorpyrifos. There have been countless legal proceedings between the EPA and organizations wanting the pesticide banned for over 10 years.

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Tags: environmental law

Protection for Chaco Canyon Sought

Posted by Whitcomb, Selinsky, PC on Dec 6, 2019 2:27:00 PM

 

On May of this year, the U.S. Court of Appeals was asked to determine whether the U.S. Bureau of Land Management (BLM) violated the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA) by granting 300 applications for fracking well permits in the Mancos Shale area of the San Juan Basin of New Mexico. A coalition of environmental advocacy groups consisting of Diné Citizens Against Ruining our Environment, San Juan Citizens Alliance, WildEarth Guardians, and Natural Resource Defense Council sued the Secretary of the Department of the Interior (DOI) alleging the BLM authorized drilling without fully considering its cumulative impacts on the environment or on historic properties.

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Tags: environmental law

President Trump Brings Tricks to Vehicle Standards on Halloween

Posted by Whitcomb, Selinsky, PC on Dec 5, 2019 11:06:00 AM

Halloween brought a surprise resolution in the conflict between the Trump administration and states over the regulation of fuel efficiency and emission standards. The Trump administration announced it is quitting its plan to freeze tailpipe-emissions targets for new vehicles through the year 2025. It now plans to require an annual increase of 1.5 percent in fuel efficiency instead of the 5 percent gains required by the Obama administration.

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Tags: environmental law

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