Jan 282015

EPA has sent the following notice to the Federal Register for publication:


[EPA-R10-OW-2014-0505; FRL-9922-23-Region-10]

Notice of Status Update on the Proposed Determination for the Pebble Deposit Area, Southwest Alaska

AGENCY: Environmental Protection Agency.

ACTION: Notice of status update.

SUMMARY: On July 21, 2014, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a Notice of Proposed Determination, under Section 404(c) of the Clean Water Act, to restrict the use of certain waters in the South Fork Koktuli River, North Fork Koktuli River, and Upper Talarik Creek watersheds in Southwest Alaska as disposal sites for dredged or fill material associated with mining the Pebble deposit, a copper-, gold-, and molybdenum-bearing ore body. On September 19, 2014, EPA published in the Federal Register a notice extending the time period to either withdraw the Proposed Determination or to prepare the Recommended Determination until no later than February 4, 2015. As part of ongoing litigation brought by the Pebble Limited Partnership, on November 25, 2014, a Federal District Court Judge issued a preliminary injunction that requires EPA to stop all work connected to the 404(c) proceeding, including reviewing and considering public comments. EPA is complying with the court’s order and as such is not taking any steps to withdraw the Proposed Determination or to prepare a Recommended Determination while the preliminary injunction is in place.

Dated: January 21, 2015.

Dennis J. McLerran,
Regional Administrator,
EPA Region 10.

[FR Doc. 2015-01701 Filed 01/28/2015 at 8:45 am; Publication Date: 01/29/2015]

Jan 282015

Here's some coverage of and reaction to the offshore leasing proposal announced by the Interior Department Tuesday, Jan. 27:

Interior’s Proposed Offshore Leasing Plan Will Place New Restrictions on Exploration of Alaska’s Waters  (Senate Energy and Natural Resources Committee, 1/27)

Few industry cheers for proposal from industry  (Marine Log, 1/27)

Draft Offshore Leasing Program Adds Atlantic Opportunities, Misses Others (Natl. Ocean Industries Assn., 1/27/15)

Center for Biological Diversity blasts proposal (1/27)

Southern Environmental Law Center Calls for Protection of Southeast Coasts from Offshore Drilling (1/27)

Advance story from NY Times (Coral Davenport, 1/26)



CBD blasts offshore leasing proposal

 Posted by on January 27, 2015
Jan 272015

The Center for Biological Diversity issued a press release shortly after the Interior Department announced its offshore drilling proposal for 2017-2022. Here's the release, pasted below:

Obama Plan Will Open Arctic and Atlantic Oceans to Dangers of Drilling

Obama Sacrifices Climate for Industry Profit

For Immediate Release, January 27, 2015

Contact: Miyoko Sakashita, (415) 632-5308, (510) 845-6703 (cell), miyoko@biologicaldiversity.org

WASHINGTON — The Obama administration announced plans today to open up the Atlantic Ocean to drilling and offer more lease sales in the sensitive Arctic waters off Alaska. Both announcements move these areas that have largely been off-limits to offshore drilling closer to becoming industrial oil operations. Ramping up offshore drilling raises the risk of disastrous spills, puts wildlife in harm’s way, and deepens U.S. dependence on the fossil fuels driving the global climate crisis.

The new five-year plan schedules 14 lease sales in eight planning areas between 2017 and 2022: 10 sales in the Gulf of Mexico, three off the coast of Alaska, and one in the Atlantic Ocean. President Obama is using executive action to put some of the most sensitive areas in the Arctic’s Beaufort and Chukchi seas off limits, which is a step in the right direction. However, all leasing should be halted in the Arctic where an oil spill in remote areas would be impossible to clean up, and the Atlantic, where development has so far been off-limits. The plan encourages further reliance on oil and threatens species already in danger because of climate change.

“The Deepwater Horizon disaster and Shell’s embarrassing 2012 Arctic drilling fiasco should have been wakeup calls to the Obama administration,” said Miyoko Sakashita, oceans program director at the Center for Biological Diversity. “Instead the president appears to be sleepwalking his way right into the next big offshore-oil nightmare.”

The Obama plan represents a long-term commitment to offshore oil drilling at a time when experts are sounding the alarm on further fossil fuel development. Leading climate scientists say atmospheric CO2 concentrations should be reduced to 350 parts per million to avoid catastrophic, irreversible impacts. And in order to reach this goal the vast majority of fossil fuels must stay in the ground.

Arctic Ocean oil and gas pose a major climate threat. Producing and burning projected technically recoverable oil and gas reserves in the Arctic Ocean has the potential to release 15.8 billion tons of CO2 into the atmosphere. This is equivalent to the emissions from all forms of transportation in the United States over a nine-year period, or burning 90 years’ worth of oil flowing through the Keystone XL pipeline at maximum capacity.

“The window of opportunity to avert dangerous climate change is rapidly shrinking and President Obama’s new offshore oil drilling plan will help slam it shut,” said Sakashita. “He’s is blowing his chance to put us on a path to a livable planet.”

Dec 112014

Updated 12/14/14

EPA has been barred from doing any work on its potential veto of a permit for a controversial gold mine in Bristol Bay, Alaska.

"[D]efendants must stop all work connected to the 404(c) proceeding. Defendants may not engage in any activities related to the 404(c) process," U.S. District Judge H. Russel Holland said in a Dec. 4 ruling. That order followed his issuance of a preliminary injunction Nov. 25 that said basically the same thing:

Defendants Environmental Protection Agency and Gina McCarthy, in her official capacity as Administrator of the Environmental Protection Agency, and those parties’ officers, agents, servants, employees, and attorneys, as well as other persons who are in active concert or participation with the foregoing, are enjoined and restrained from taking any action in furtherance of a decision to veto a possible Pebble (Bristol Bay area) mine project pursuant to Section 404(c) of the Clean Water Act until after the court has ruled on the merits of plaintiff’s complaint. More particularly, defendants and the regional administrator for EPA Region 10 shall not issue any recommendation on a pending proposed determination regarding the Pebble Mine project until after the court has ruled on the merits of plaintiff’s complaint.

"Based upon extant case law, the court concludes that plaintiff will have no remedy for claimed Federal Advisory Committee Act (FACA) violations and will therefore suffer irreparable harm if it is not permitted to litigate its FACA claims prior to final agency action on the pending Section 404(c) proceedings," the judge said Nov. 25.

EPA can file a brief by today on the issue of security, if it so desires, the judge said in his Dec. 4 clarification. (Update 12/14: The agency did not, according to the docket.)

The partnership proposing the mine has alleged that EPA violated the Federal Advisory Committee Act by reaching a predetermined conclusion on the veto.

The Pebble Limited Partnership "has raised concerns regarding FACA violations--including that EPA secretly colluded with environmental activists to bring about a predetermined result before undertaking any scientific inquiry--entirely based on the select documents that EPA has disclosed in response to Freedom of Information Act requests," Northern Dynasty Minerals said in a statement following the judge's Nov. 25 ruling.

The case is Pebble Mine Partnership v. EPA (14-171-HRH, D. Alaska). More links on Holland are here. Scroll down for the injunction and, after that, some more links, including Northern Dynasty Minerals' statement.


News coverage (Google) and from mining.com

Bristol Bay (EPA information)

Pebble Partnership

Save Bristol Bay website

Previous coverage: July 21, Feb. 28 and Jan. 15

Nov 072014

In a short opinion, the D.C. Circuit Court of Appeals ruled that Alaska's challenge to the Forest Service's Roadless Rule can proceed. The court reversed the judgment of U.S. District Judge Richard Leon and sent the matter back to him for adjudication (State of Alaska v. USDA, 13-5147).

The only issue was whether Alaska had filed its lawsuit within the six-year statute of limitations. Related to that, however, was the question of exactly when the rule became effective. Said the court:

The Forest Service argues that Alaska’s suit is out of time because, according to the Forest Service, Alaska’s right of action accrued in 2001 when the Roadless Rule was issued. The fundamental problem with the Forest Service’s argument is that the Forest Service repealed the Roadless Rule in 2005. The Forest Service’s 2005 repeal of the Roadless Rule extinguished the right of action that had accrued in 2001.

It is true that the Roadless Rule, after being repealed by the Forest Service in 2005, was reinstated in 2006 as a result of an order by the District Court for the Northern District of California. For purposes of Section 2401(a), however, a new right of action necessarily accrued upon the rule’s reinstatement in 2006.

The court reversed the judgment of the District Court dismissing Alaska’s complaint as untimely, and remanded the case for consideration of Alaska’s challenges to the rule. The judges on the decision were Brett Kavanaugh, Stephen Williams and Judith Rogers.


Mar 012013

The D.C. Circuit Court of Appeals has rebuffed an industry effort to remove the polar bear from the list of threatened and endangered species (In Re: Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation - MDL- No. 1993, 11-5219).

Who moved the ice? (Photo by Daniel J. Cox)

Here's an excerpt from page 3 of the opinion:

The appellate court’s task in a case such as this is a “narrow” one. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Our principal responsibility here is to determine, in light of the record considered by the agency, whether the Listing Rule is a product of reasoned decisionmaking. It is significant that Appellants have neither pointed to mistakes in the agency’s reasoning nor adduced any data or studies that the agency overlooked. In addition, Appellants challenge neither the agency’s findings on climate science nor on polar bear biology. Rather, the principal claim advanced by Appellants is that FWS misinterpreted and misapplied the record before it. We disagree.

Then, on page 15, the court said:

As we discuss below, several of Appellants’ challenges rely on portions of the record taken out of context and blatantly ignore FWS’s published explanations. Others, as the District Court correctly explained, “amount to nothing more than competing views about policy and science,” on which we defer to the agency. In re Polar Bear, 794 F. Supp. 2d at 69; see also Am. Wildlands, 530 F.3d at 1000 (reviewing courts must “avoid[] all temptation to direct the agency in a choice between rational alternatives”).

Senior Circuit Judge Harry Edwards wrote the opinion, in which he was joined by Chief Circuit Judge Merrick Grland and Circuit Judge Janice Rogers Brown. The court affirmed a decision by U.S. District Judge Emmet G. Sullivan.

Editor's note: More coming from the opinion after we've read it.

Apr 162012

FWS has proposed new regulations that would extend from five to 30 years the duration of programmatic permits that allow the taking of bald or golden eagles.

In the proposal, published Friday, April 13, FWS said:

In February 2011, we published draft Eagle Conservation Plan Guidance that provided information on how to prepare Eagle Conservation Plans and apply for eagle take permits. Many commenters recommended that we extend the term of the permit, as we are proposing to do with this rule. Since publication of the 2009 final rule, we have reviewed applications from proponents of renewable energy projects, such as wind and solar power facilities, for programmatic permits to authorize eagle take that may result from both the construction and ongoing operations of renewable energy projects. During our review, it became evident that the 5-year term limit imposed by the 2009 regulations (see 50 CFR 22.26(h)) needed to be extended to better correspond to the timeframe of renewable energy projects. We propose to amend the regulations to provide for terms of up to 30 years for programmatic permits. The maximum permit tenure for standard Sec. 22.26 permits would remain at 5 years.

"Programmatic take" of eagles "is defined at 50 CFR 22.3 as 'take that is recurring, is not caused solely by indirect effects, and that occurs over the long term or in a location or locations that cannot be specifically identified,' " the service noted.

The proposal was immediately attacked by the American Bird Conservancy, which said it would result in the deaths of more eagles from wind turbines. In a news release, ABC Wind Campaign Coordinator Kelly Fuller said, “It is simply irresponsible of [FWS] to propose granting 30-year take permits for birds such as eagles, which have populations that are still in a precarious state. Just three years ago, the FWS concluded in a published rulemaking that they shouldn’t grant permits for longer than five years 'because factors may change over a longer period of time such that a take authorized much earlier would later be incompatible with the preservation of the bald eagle or the golden eagle.' The underlying science has not changed, and there is no proven method for fixing a wind farm so that it no longer kills eagles, short of turning off the turbines."

The proposal's comment period ends May 14, but we wouldn't be surprised to see that extended.


US/Russia ice seal survey to begin as NMFS ponders peer reviews

The United States and Russia will conduct surveys for ice seals, the National Marine Fisheries Service has announced. In addition, the agency is asking for comments on peer reviews of the service's December 2010 proposal to list four subspecies of ringed seals and two distinct population segments (DPS) of bearded seals, including the Arctic ringed seal and the Beringia DPS of bearded seals, as threatened under the ESA.

NMFS "found substantial scientific disagreements in some peer and public comments received on the listing proposals, particularly relating to the sufficiency or accuracy of the model projections and analysis of future sea ice habitat for Arctic ringed seals and the Beringia DPS of bearded seals," the agency said in an April 5 press release.

Ice seal page (Go here for peer reviews)

AP story ("US, Russia to begin Bering Sea seal survey")

Nov 212011

Go here for U.S. District Judge Royce Lamberth's opinion in State of Alaska and Escopeta Oil Company v. NOAA and Alaska Center for the Environment (10-927 RCL, D.D.C.)

Thanks, Royce. Stop by if you're in the neighborhood.

Here's the judge's summary of his 25-page opinion, issued Nov. 21, 2011:

"The absence of an expected change is sometimes indistinguishable from the presence of an observed one. So when the best available science predicts that a recently enacted ban on subsistence hunting will reverse the abrupt depletion of a species, a decade without any noticeable recovery in the species’ population should raise a concern that the true cause of its decline has not been fully addressed. The species in this case—beluga whales in Alaska’s Cook Inlet—was nearly wiped out by a catastrophic spree of subsistence whaling between 1994 and 1998. More than a decade later, and despite the passage of a legislative moratorium on subsistence hunting in 1999, the population of Cook Inlet beluga whales has failed to show any appreciable signs of recovery. For this and other reasons, the National Marine Fisheries Service granted a petition to list the species as endangered under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. The Service’s decision is rational and is supported by the administrative record, and the defendants are therefore entitled to summary judgment."

More to come -- SD