Sep 292015

The D.C. Circuit Court Appeals has upheld the federal government's approval of Enbridge Pipelines' Flanagan South pipeline, concluding that NEPA review of the pipeline's entire 593-mile length was not required (Sierra Club v. U.S. Army Corps of Engineers, 14-5205).

The 593-mile pipeline, which has been built, carries crude oil from Illinois to Oklahoma. Sierra Club contended that collectively, the environmental reviews required by various federal agencies should have triggered an analysis of the entire pipeline under the National Environmental Policy Act.

However, the court, while saying that "the agencies were required to conduct NEPA analysis of the foreseeable direct and indirect effects of those regulatory actions," concluded that they "were not obligated also to analyze the impact of
the construction and operation of the entire pipeline." It continued:

"We also reject Sierra Club’s Clean Water Act challenge to the Corps’s verifications of Flanagan South’s water crossings under Nationwide Permit 12 because the Corps was authorized to  conduct its review on a regional rather than nationwide basis, and the Corps’s District Managers adequately supported their verification decisions. Finally, we hold that the district court did not abuse its discretion in denying Sierra Club’s motion to supplement and amend its complaint, because the proposed new allegations would not have affected the dispositive legal analysis."

The circuit judges on the decision were Janice Rogers Brown, Nina Pillard and Robert Wilkins. Pillard wrote the opinion for the court; Brown concurred separately, opining that the majority had expended too much "angst" in reaching its decision.

"While the majority ultimately arrives at the same destination, its route is needlessly circuitous, creating the impression that Sierra Club’s challenges fail by a hairsbreadth rather than a hectare," she said.


Sierra Club also claimed that one of the agencies, the United States Army Corps of Engineers, unlawfully authorized dredge and fill activities at the pipeline’s nearly two thousand minor water crossings by verifying that they fell within the authority of a general permit, Nationwide Permit 12, that the Corps had promulgated under the Clean Water Act. Sierra Club argued that the Corps impermissibly conducted its analyses of the water crossings’ cumulative impacts by region, rather than considering the pipeline as a whole, and that its conclusions that the crossings would have only minimal adverse environmental effects were inadequately supported and conclusory.

The Flanagan South oil pipeline pumps crude oil across 593 miles of American heartland from Illinois to Oklahoma. Almost all of the land over which it passes is privately owned. As soon as Enbridge Pipelines (FSP), LLC, (Enbridge) began building the pipeline in 2013, the Sierra Club, a national environmental nonprofit organization, sued the federal government seeking to set aside several federal agencies’ regulatory approvals relating to the pipeline and to enjoin the pipeline’s construction and operation in reliance on any such approvals.

On appeal, Sierra Club principally contends that the district court erred by failing to require the agencies to analyze and invite public comment on the environmental impact of the whole pipeline under NEPA, including the lengthy portions crossing private land and not otherwise subject to federal approvals. Sierra Club also presses its challenge to the Corps’s Clean Water Act verifications of the pipeline’s many water crossings. Sierra Club further contends that the district court reversibly erred by failing to allow the organization to supplement and amend its complaint. Sierra Club’s proposed new complaint added claims that the Corps and the Bureau of Indian Affairs within the U.S. Department of the Interior (the Bureau) had, while the litigation was pending, completed separate NEPA analyses relating to each of the easements the agencies had granted for the pipeline to cross federally controlled land, and that those analyses were insufficient.


Sep 212015

Interior Secretary Sally Jewell, joined by four Western governors, the directors of the Fish and Wildlife Service, Bureau of Land Management and U.S. Geological Survey, and the chiefs of the Forest Service and Natural Resources Conservation Service, "will make a major announcement related to the historic conservation effort for the greater sage-grouse" in Colorado tomorrow.

News organizations have widely reported that Jewell and the assembled agency heads (along with a rancher from Nevada and an executive with Audubon Rockies) will be announcing the long-awaited decision on whether listing of the greater sage-grouse is "warranted" under the Endangered Species Act.

Given the hoopla surrounding the event, the attendance by the governors of Wyoming, Nevada, Colorado and Montana, and the wording of the Interior Department's media advisory, it appears unlikely that the outcome can be anything other than "not warranted."

Of course, that is speculation, but it's informed speculation. Hardly a week has gone by in the last few months without a news release about a new commitment of money and or/land to conserve the iconic sagebrush species, along with a mention of the "unprecedented" landscape-scale effort undertaken by the feds, states and ranchers.

The advisory followed the same script.

"[T]he long-term decline of the greater sage-grouse and its sagebrush habitat has sparked an unprecedented collaborative, science-based conservation effort across 11 western states." It hardly seems possible that the dignitaries are showingup to hear about a proposed listing of the bird.

Indeed, last week Jewell told media attending a briefing sponsored by the Christian Science Monitor that she was "optimistic that a not warranted [decision] is possible," according to an article in the Washington Examiner with the wishful headline, "Interior chief sees no endangered species listing for sage grouse."

""What has happened in this collaborative work is really the way I think the Endangered Species Act should work," she said.

One example of that collaboration is the Colorado Habitat Exchange, announced by Gov. John Hickenlooper last week.

"The Colorado Habitat Exchange works to engage ranchers in voluntary conservation efforts by offering financial incentives to create, maintain and improve habitat on their property," the governor's office said in a news release. "Landowners earn conservation credits for these activities, which they can sell to industry to compensate for development, such as roads, oil and gas facilities and other infrastructure that impact species and habitat."

The state has asked FWS and BLM to "recognize" the exchange. “No one wants to see this bird on the Endangered Species List, and this program is our best chance of keeping the bird off the list, now and in the future,” said Terry Fankhauser, executive vice president of the Colorado Cattlemen’s Association.

But Erik Molvar, Sagebrush Sea Campaign Director for WildEarth Guardians, warned that although voluntary conservation is "laudable," conservation banking cannot be used "as an alternative to having real sage grouse protections."

So far, banking's track record is not enviable, he said, pointing to efforts for the lesser prairie-chicken as an example.

Molvar also said he doesn't know what the final decision will be. The government, he said is keeping the announcement "close to the vest."

"There is a growing sense, though no certainty, that the bird will not be listed — at least for now," a story in today's Los Angeles Times said.

More coverage:

Sep 022015
Permian Basin Petroleum Assn. press release on LPC decision

The following release is from the Permian Basin Petroleum Association. U.S. District Court Finds for PBPA, Vacates Lesser Prairie Chicken Listing September 2, 2015 FOR IMMEDIATE RELEASE (Midland, Texas) Yesterday, the U.S. District Court for the Western District of Texas granted summary judgment in favor of the Permian Basin Petroleum Association and vacated the U.S. […]

Jun 022015

Afternoon update: A coalition of environmental groups has filed a lawsuit (technically, a petition for review) in the Ninth Circuit Court of Appeals challenging the Bureau of Ocean Energy Management’s approval of Shell’s exploration plan for the Chukchi Sea (Alaska Wilderness League v. Jewell). Scroll down for the petition. Here is the press release. * […]

Mar 242015

Just the press release, m’am PRESS RELEASE Department of Energy, Department of the Interior and Army Corps of Engineers Renew Five-Year Partnership to Advance Hydropower WASHINGTON, DC – The U.S. Department of Energy, U.S. Department of the Interior and U.S. Department of the Army for Civil Works announced today that the three agencies have extended […]

Mar 062015

See our Federal Register page for more   (and scroll down for the coral recovery plan links) On Public Inspection today FWS releases final recovery plan for the four subspecies of island fox (Urocyon littoralis). Each of the four subspecies, San Miguel Island fox (Urocyon littoralis littoralis), Santa Rosa Island fox (U. l. santarosae), Santa Cruz […]

Mar 062015

The D.C. Circuit Court of Appeals has denied a petition from Center for Sustainable Economy (CSE) that challenged the Bureau of Ocean Energy Management’s 2012-17 Outer Continental Shelf leasing program on the grounds that it violated both the Outer Continental Shelf Lands Act (OCSLA) and NEPA (Center for Sustainable Economy v. Jewell, 12-1431, 3/6/15). (CSE […]

Feb 252015

PEER news release (2/25/15) (and pasted below) SCIENTIFIC FRAUD INFESTS FISH & WILDLIFE SERVICE TOP RANKS Whistleblower Hearing Traces Corruption and Retaliation Back to Director’s Door Posted on Feb 25, 2015  | Tags: FWS, Scientific Integrity Washington, DC —An explosive whistleblower hearing transcript paints a vivid picture of rampant scientific misconduct, callous reprisal and systemic […]

Feb 132015

Here is the press release from the American Bird Conservancy: MEDIA RELEASE Contact: Robert Johns, 202 888 7472, Leading Bird Group Files Petition to Regulate the Wind Industry (Washington, D.C., February 13, 2015) American Bird Conservancy (ABC) has filed a formal petition with the U.S. Department of the Interior (DOI) calling for the agency […]

Feb 062015
Interior urges State to consider previous Keystone comments

The Interior Department has “encouraged the State Department to give appropriate consideration to comments previously submitted during the Keystone XL permit review process as well as concerns expressed by some tribes in Indian Country about the project,” spokesperson Jessica Kershaw said in response to an inquiry. EPA has released its comments, but Interior declined to […]