Mar 162015

Environmental groups in North Carolina have won a court challenge to the Garden Parkway, a proposed 21-mile toll highway project near Charlotte. (Order)

The Federal Highway Administration and North Carolina DOT "violated [the National Environmental Policy Act] and the [Administrative Procedure Act] by using the same set of socioeconomic data that assumed construction of the Garden Parkway to assess the environmental impacts of the Build and No Build alternatives," U.S. District Judge James Dever said (Catawba Riverkeeper Foundation and Clean Air Carolina v. N.C. Dep't of Transportation, 15-29-D, E.D. N.C.).

"The ruling comes after the legislature has stripped the nearly $1 billion road of its earmarked funding. Construction of the project is now extremely unlikely," the Southern Environmental Law Center, which represented the plaintiffs, said.

Dever relied heavily on a Fourth Circuit decision, North Carolina Wildlife Federation v. North Carolina Dep't of Transportation, 677 F.3d 596 (4th Cir. 2012), in which, Dever said, "the Fourth Circuit strongly suggested that assuming the construction of the proposed project when analyzing the No Build baseline was clear error." 677 F.3d at 603.

Said the judge:

"In sum, defendants made an unsupported assumption that growth in the Metrolina region would remain constant regardless of whether the Garden Parkway was built. In so doing, they failed to take a "hard look" at the environmental impacts of the proposed Garden Parkway and violated NEPA and the APA by preparing an inadequate EIS. Accordingly, the court grants plaintiffs' motion for summary judgment and vacates the Record of Decision for the Garden Parkway project."

He denied the groups' motion for injunctive relief, but said he "expects defendants to comply with all applicable regulations, including, should they choose to move forward with the project, the issuance of a supplemental EIS that corrects the above-discussed error by constructing an appropriate No Build scenario, with socioeconomic data that do not assume construction of the Garden Parkway, and also a new Record of Decision, before taking any action that would violate section 1506.1. Should defendants take actions inconsistent with this order, the court will reconsider whether to issue an injunction."

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)



Nov 182014

Conservation groups in Virginia applauded the Forest Service today for deciding to prohibit oil and gas drilling, including fracking, on the vast majority of the George Washington National Forest.

"We're pleased that the Forest Service did listen to our local community," said Kim Sandum, director of the Community Alliance for Preservation, on a teleconference this morning (Audio).

The American Petroleum Institute was also happy with the decision, saying that it "will not prevent the state from pursuing responsible energy development, utilizing hydraulic fracturing and horizontal drilling, on public lands."

The conservation leaders who participated in the call said the decision would allow drilling on a small portion of the forest already under gas lease or subject to private mineral rights.

"On this 1.1-million acre forest, only around 10,000 acres are currently under gas lease and 167,000 acres are subject to private mineral rights. There is no gas drilling on the GW currently," according to a press release pasted below.

"They listened and we need to thank them profusely for listening," said Nancy Sorrells, a board member of the Augusta County Service Authority.

Also according to the press release, "The GW is a direct source of local drinking water to more than 329,000 people living in and around the Shenandoah Valley, and it lies in the watersheds of the James, Shenandoah, and Potomac Rivers—which ultimately provide water to over 4.5 million people downstream in cities such as Washington, D.C. and Richmond, VA."

The decision received prominent coverage in today's Washington Post, which reported that the Forest Service had "backed off a proposal to ban fracking in the George Washington National Forest, a move likely to upset conservationists who oppose the controversial drilling practice."

On the contrary, the conservationists were thrilled with the decision, which they said has stronger protections for the environment than a proposal released three years ago, which would have allowed vertical drilling in "almost all of the forest," said Sarah Francisco, Senior Attorney and  Leader of National Forests and Parks Program at the Southern Environmental Law Center.

The press release is below.

For Immediate Release: November 18, 2014


Sarah Francisco, Southern Environmental Law Center,, 434-977-4090
Megan Gallagher, Shenandoah Valley Network,, 540-253-5162

Local Conservation Groups Support U.S. Forest Service Decision
to Keep GW National Forest Lands Off Limits to Gas Drilling and Fracking

Charlottesville, VA – Local conservation and community groups expressed support for today’s decision from the U.S. Forest Service to make the George Washington National Forest (GW) unavailable for oil and gas drilling, except for a small portion of the forest already under gas lease or subject to private mineral rights.

The long-term forest management plan, released today, makes clear that no additional GW lands will be opened up to leasing and drilling, while existing gas development rights remain unaddressed by the plan. On this 1.1-million acre forest, only around 10,000 acres are currently under gas lease and 167,000 acres are subject to private mineral rights. There is no gas drilling on the GW currently.

“This decision protects the existing uses and values of the special George Washington National Forest,” said Sarah Francisco, senior attorney at the Southern Environmental Law Center. “As a native Virginian who grew up in the Shenandoah Valley, I’m pleased that the U.S. Forest Service has done the right thing and recognized that the George Washington National Forest—a beloved place for our entire region—deserves protection.”

As the largest national forest in the East, over a million people per year visit the GW and its headwaters ultimately provide drinking water supplies for more than 4.5 million people. The threat of it being opened to large-scale gas drilling had caused widespread concerns about converting popular national forest lands to industrial sites.

Three years ago the Forest Service released a draft GW plan which would have prohibited horizontal gas drilling but made most of the forest available for vertical drilling. Since then, dozens of public interest organizations, eleven local governments surrounding the forest, Governor McAuliffe, several public water suppliers, and over 75,000 public comments weighed in to support the Forest Service’s proposal, as did the U.S. Environmental Protection Agency and National Park Service. U.S. Senators Warner and Kaine also urged the Forest Service to heed Virginians' clear wishes. The final forest plan takes a different protective approach, preventing any form of oil or gas drilling on the majority of the GW lands.

“The federal government has rightly heeded local wishes and chosen to protect the unspoiled lands of the GW,” said Megan Gallagher, interim director of the Shenandoah Valley Network. “There is no history of major oil and gas development in the Shenandoah Valley and not one county has embraced industrial gas development as a priority for public or private lands. This decision preserves the Valley’s recreation and agriculture-driven economy.”

As the home to popular destinations such as Shenandoah Mountain and the Great Eastern Trail, the GW provides abundant recreational opportunities to the approximately 10 million people who live within a couple hours’ drive, and it is a major economic contributor to the region. Visitors to the GW contribute substantially to the $13.6 billion in consumer spending, $923 million in tax revenue, and 138,000 jobs generated annually by outdoor recreation in Virginia.

Local and regional governments and businesses have expressed widespread concern that opening the lands to gas drilling and fracking would negatively affect local economies, particularly adjacent farms, which provide the economic backbone of the area. Agriculture is Virginia’s largest industry, and the GW region provides more than two-thirds of the value of the Commonwealth’s agricultural production.

Because fracking uses huge quantities of water and often undisclosed chemicals to break up shale formations deep underground to release natural gas, this decision will ensure that high-quality drinking water continues to flow from the GW. The GW is a direct source of local drinking water to more than 329,000 people living in and around the Shenandoah Valley , and it lies in the watersheds of the James, Shenandoah, and Potomac Rivers—which ultimately provide water to over 4.5 million people downstream in cities such as Washington, D.C. and Richmond, VA. Map of local drinking water supplies:

“Communities in the GW region recognize the risks fracking poses to our water, our economy, and our quality of life,” said Kim Sandum, Executive Director of Community Alliance for Preservation in Rockingham County. “This decision protects and preserves the forest itself and also the communities that value and depend on it.”

For more information:


The Southern Environmental Law Center is a regional nonprofit using the power of the law to protect the health and environment of the Southeast (Virginia, Tennessee, North and South Carolina, Georgia, and Alabama). Founded in 1986, SELC's team of more than 60 legal and policy experts represent more than 100 partner groups on issues of climate change and energy, air and water quality, forests, the coast and wetlands, transportation, and land use.

The Shenandoah Valley Network links local community groups working on land protection, land use and transportation issues in six Virginia counties. SVN works to maintain healthy and productive rural landscapes and communities, to protect and restore natural resources, and to strengthen and sustain our region’s agricultural economy.

Oct 132014

Environmental groups announced a couple of new lawsuits Monday, one against the Fish and Wildlife Service for withdrawing its proposal to lst the wolverine, and another against the Army Corps of Engineers for its use of nationwide permit 13.

The first was filed today in Montana (Center for Biological Diversity v. Jewell, no # or judge assigned yet), the second on Friday in Washington, D.C. (National Wildlife Federation v. U.S. Army Corps of Engineers, 14-1701, no judge assigned yet).

Press releases from the groups are pasted below

Conservation Groups Sue Federal Agency to Protect Wolverine

Climate change has led to loss of spring snowpack, endangering feisty predator

October 13, 2014

Missoula, MT — Eight conservation groups joined forces today in a legal challenge of the U.S. Fish and Wildlife Service’s decision to abandon proposed protections for the wolverine, a rare and elusive mountain-dwelling species with fewer than 300 individuals remaining in the lower 48.

In February 2013, the Fish and Wildlife Service proposed to list the wolverine as a threatened species under the Endangered Species Act after the agency’s biologists concluded global warming was reducing the deep spring snowpack pregnant females require for denning.

But after state wildlife managers in Montana, Idaho and Wyoming objected, arguing that computer models about climate change impact are too uncertain to justify the proposed listing, in May 2014 the Service’s Regional Director Noreen Walsh ordered her agency to withdraw the listing, ignoring the recommendations of her own scientists. The reversal came despite confirmation by a panel of outside experts that deep snow is crucial to the ability of wolverines to reproduce successfully. The agency formalized that withdrawal in a final decision issued Aug. 13.

The coalition of eight conservation groups, represented by Earthjustice, is suing to overturn that decision filed the lawsuit today in federal district court in Missoula, Mont.

“The wolverine is a famously tough creature that doesn’t back down from anything, but even the wolverine can’t overcome a changing climate by itself,” said Earthjustice attorney Adrienne Maxwell. “To survive, the wolverine needs the protections that only the Endangered Species Act can provide.”

The groups bringing the lawsuit are the Center for Biological Diversity, Conservation Northwest, Friends of the Clearwater, Greater Yellowstone Coalition, Idaho Conservation League, Jackson Hole Conservation Alliance, Klamath-Siskiyou Wildlands Center, and Rocky Mountain Wild.

“The denial of protection for the wolverine is yet another unfortunate example of politics entering into what should be a purely scientific decision,” said Noah Greenwald, endangered species director at the Center for Biological Diversity. “All of the science and the agency’s own scientists say the wolverine is severely endangered by loss of spring snowpack caused by climate change, yet the agency denied protection anyway.”

"The best available science shows climate change will significantly reduce available wolverine habitat over the next century, and imperil the species,” said Jackson Hole Conservation Alliance’s Siva Sundaresan. “As an agency responsible for protecting our wildlife, FWS should not ignore science and should make their decisions based on facts and data.”

“Wolverines in the Clearwater region are particularly vulnerable because the elevations here are less than those elsewhere in the Northern Rockies,” said Gary Macfarlane of Friends of the Clearwater. “It would be a great loss if this fearless critter were to disappear from the wild Clearwater country.”.

“One of the most important things that we can do to get wolverines on the road to recovery in the face of a warming climate is to get them back on the ground in mountain ranges where they once lived,” said Megan Mueller, senior conservation biologist with Rocky Mountain Wild. “We are disappointed by the Service’s decision not to list wolverines under the Endangered Species Act as protections would have helped to facilitate such efforts in Colorado and beyond.”

“The remote, rugged, and snowy North Cascades are ideal wolverine habitat,” said Dave Werntz, Science and Conservation Director with Conservation Northwest. “Protection under the Endangered Species Act will help wolverine survive a warming climate, shrinking snowpack, and increasingly fragmented habitat.”


The wolverine, the largest land-dwelling member of the weasel family, once roamed across the northern tier of the United States and as far south as New Mexico in the Rockies and Southern California in the Sierra Nevada range. After more than a century of trapping and habitat loss, wolverines in the lower 48 have been reduced to small, fragmented populations in Idaho, Montana, Washington, Wyoming and northeast Oregon.

With no more than 300 wolverines remaining in these regions, the species is at direct risk from climate change because wolverines depend on areas that maintain deep snow through late spring, when pregnant females dig their dens into the snowpack to birth and raise their young. Snowpack is already in decline in the western mountains, a trend that is predicted to worsen. Wolverine populations also are threatened by trapping, human disturbance, extremely low population numbers resulting in low genetic diversity, and fragmentation of habitat.

The groups challenging the Service’s determination pointed out that the agency disregarded well-established scientific evidence, including the recommendations of its own scientists, in speculating that the wolverine might be capable of withstanding the projected loss of 63 percent of its snowy habitat in the lower 48 by the year 2085. Contrary to the Service’s speculation, every one of the 562 verified wolverine den sites in North America and Scandinavia occurred in snow; 95 percent of worldwide summer wolverine observations and 89 percent of year-round wolverine observations fell within areas characterized by persistent spring snowpack. Elimination of this snowy habitat due to warming temperatures presents a direct threat to the wolverine’s survival — a danger compounded by the increasing isolation and fragmentation of wolverine habitats that threatens remaining populations with localized extinctions and inbreeding.

On May 17, the assistant director for the Fish and Wildlife Service’s Rocky Mountain region recommended protection for the wolverine, concluding that the agency's scientists had not found “any other peer-reviewed literature or other bodies of evidence that would lead us to a different conclusion. While we recognize there is uncertainty associated with when population effects may manifest themselves, any conclusion that there will not be population effects appears to be based on opinion and speculation. In our opinion that would not represent the best available scientific or commercial data available.” Despite these strong conclusions, the Fish and Wildlife Service reversed course and withdrew proposed protection for the wolverine.


Press Release from the Southern Environmental Law Center and other groups

For Release: October 13, 2014


Nate Hunt, SELC, 404-521-9900
Jan Goldman-Carter, National Wildlife Federation, 202-797-6894
Emily Markesteyn, Ogeechee Riverkeeper, 866-942-6222
Tonya Bonitatibus, Savannah Riverkeeper, 706-826-8991

Conservation Groups Challenge Unlawful Permit to Prevent Further Shoreline Damage

Washington, DC—Conservation groups have filed suit in federal court challenging the U.S. Army Corp of Engineers’ use of a permit that allows construction of bulkheads, seawalls, and other hardened structures to be built in waters of the United States without adequately assessing their environmental impact.

Nationwide Permit 13 authorizes the construction of bank stabilization structures along shorelines with little environmental review and without public notice and review. Unlike individual permits issued by the Corps, Nationwide Permit 13 allows structures to be built close to two football fields in length without requiring prior approval from the Corps. Nationwide Permit 13 is currently being used by the Corps to authorize approximately 17,500 structures between 2012 and 2017.

“Although these projects are designed to reduce erosion at specific sites, there is a lot science showing that bulkheads and other structures accelerate erosion in our waters and destroy important shoreline habitat,” said Nate Hunt, attorney with the Southern Environmental Law Center. “The negative effects are especially acute on our coasts as more cities, developers, and landowners are constructing bulkheads and sea walls to armor the shoreline in response to sea level rise.”

On behalf of the National Wildlife Federation, Ogeechee Riverkeeper, and Savannah Riverkeeper, the Southern Environmental Law Center has filed a lawsuit against the Corps in United States District Court in Washington, D.C, charging that the agency has violated federal law in failing to demonstrate that the projects authorized over the five-year period of the permit will only have minimal environmental effects as required by the Clean Water Act.

“The Corps’ use of Nationwide Permit 13 to rubber stamp the coastal armoring of our shorelines threatens important fish and wildlife habitat, including the nesting habitat of threatened and endangered sea turtles and shorebirds,” said Jan Goldman-Carter, senior manager and counsel with the National Wildlife Federation. “By requiring the Corps to carefully review the cumulative impacts of hardening shorelines and alternatives to these hard structures, we aim to encourage the use of living shorelines and other more natural approaches to decreasing erosion on our coastlines.”

As sea level rises, more coastlines are being armored by bank stabilization projects. Coastlines fixed by hard structures prohibit wetlands, marshlands, various aquatic ecosystems, and beaches from migrating inland in response to sea level rise.

Rather than inhibiting erosion, these structures redirect the wave energy downward and cause the ground at the base of the structures to wear away. As the area in front of the structures disappears, important habitat is lost to species that depend on this land and water interface to survive.

“The cumulative effect of hardened structures on our coast is causing irreversible damage to the natural ecosystem, its processes and functions, such as fish nursery habitat and pollution control, and the recreational use of waterways,” said Ogeechee Riverkeeper Emily Markesteyn. “While we are not against any and all bank stabilization projects, we must ensure the Corps follows due diligence when assessing environmental impacts of these structures.”

Federal and state agencies, the conservation groups, and others filed extensive comments on the proposed permit, highlighting the scientific evidence on the significant environmental impact of shoreline armoring. The groups contend that the Corps failed to justify the use of Nationwide Permit 13 in the face of this scientific evidence.

“Our coastal regions are changing due to sea level rise, and development choices we make today can either help buffer us from the impacts, or worsen the impacts on ourselves and our neighbors,” said Savannah Riverkeeper Tonya Bonitatibus. “The Corps must be diligent in ensuring the solutions it permits do not cause or allow undue harm on surrounding coastal properties.”

About the Southern Environmental Law Center:

The Southern Environmental Law Center is a regional nonprofit using the power of the law to protect the health and environment of the Southeast (Virginia, Tennessee, North and South Carolina, Georgia, and Alabama). Founded in 1986, SELC's team of nearly 60 legal and policy experts represent more than 100 partner groups on issues of climate change and energy, air and water quality, forests, the coast and wetlands, transportation, and land use.

About the National Wildlife Federation:

National Wildlife Federation is America's largest conservation organization inspiring Americans to protect wildlife for our children's future. Learn more at

About Ogeechee Riverkeeper:

Ogeechee RIVERKEEPER® exists for the Ogeechee, Canoochee, and coastal rivers, not the other way around. Accordingly, we measure our success not by totals of dues-paying members, dollars raised, or awards and recognitions, but by the quality of the water in the basin and the commitment of its citizens to protecting, preserving, and improving it. A hard-working, effective organization for the waters and people of the Ogeechee River basin: that is the vision for Ogeechee RIVERKEEPER®.

About Savannah Riverkeeper:

The Savannah Riverkeeper serves as the primary guardian of the Savannah River striving to respect, protect, and improve the entire river basin through education, advocacy, and action. We are a 501 c (3) non-profit organization funded by individuals and foundations that share our commitment to creating a clean and healthy river that sustains life and is cherished by its people.

Stream buffer zone rule could go bye-bye

 Posted by on September 12, 2013
Sep 122013

Judge in D.C. indicates desire to set aside reg for failure to consult

A 2008 rule designed to protect streams from the impact of coal mining will probably be set aside because the Office of Surface Mining did not consult with the Fish and Wildlife Service on the regulation's impact on listed species.

That certainly appeared to be the inclination of U.S. District Judge Barbara J. Rothstein, who held a status conference on legal challenges to the Stream Buffer Zone rule today (Thursday, Sept. 12) in her courtroom in Washington, D.C. (National Parks Conservation Association and Coal River Watch v. Jewell, 09-115 BJR, D.D.C.).

Nothing of import has happened in the case for about three years, Rothstein noted, which has had the effect of leaving  the 2008 rule in place, despite numerous flaws.

The judge said that as she was reading through the briefs prior to the hearing, "it crossed my mind that it was time for some rulings in the case."

Later, near the end of the approximately one-hour status conference, she said the case was "an example of what happens" when a case is stayed for a long time: "It doesn't get better, it just gets worse."

The government has asked Rothstein to vacate the 2008 rule and leave the 1983 rule in its place while OSM goes through another public comment period in an attempt to refashion an acceptable rule. In addition to the failure to consult, OSM recently conceded it had misplaced thousands of (admittedly, identical) public comments.

Invalidation would be acceptable to NPCA but not, it appears, to another group of plaintiffs led by Coal River Mountain Watch, which wants Rothstein to decide all the issues in the case, not just the ESA claims (Coal River Mtn. Watch v. Jewell, 08-2122). Those plaintiffs' attorney said the rule was harming people today.

"We would submit you have to consider all the deficiencies in the rule," he said.

The National Mining Association and its allies want the judge to keep the 2008 rule in place. Their attorney, Kirsten Nathanson of Crowell & Moring, argued that Rothstein should defer to an earlier ruling by District Judge Henry Kennedy, who had declined to vacate the rule.

But Rothstein wasn't fond of the "vacatur" terminology, preferring instead to speak of "setting aside" an "invalid" rule. Longtime Justice Department attorney Mark Brown said there was no dispute among the parties that OSM hadn't consulted under Section 7 of the ESA.

Here's the "minute order" posted in the case docket today:

MINUTE ORDER: The parties having appeared for a status conference before Judge Barbara Jacobs Rothstein on September 12, 2013 at 10:00 am, it is HEREBY ORDERED that in the interest of expediting the issues so that they coincide with the companion case, National Parks Conservation Association v. Jewell, Case No. 9-115, the scheduling order [Dkt. Nos. 41 and 42] is modified accordingly: (1) all motions for summary judgment (including cross motions) will be filed on or before October 15, 2013; (2) all responses will be filed on or before November 15, 2013; and (3) all replies will be filed on or before December 1, 2013. Signed by Judge Barbara Jacobs Rothstein on 9/12/13. (Reed, Heather) (Entered: 09/12/2013)