February 21, 2020 — Cause of Action Institute, on behalf of six trawlers and a processor based in Cape May, NJ, filed a lawsuit yesterday against Secretary of Commerce Wilbur Ross and NOAA Fisheries to block a new rule forcing them to pay for third-party “at-sea monitors.”
The plaintiffs claim that NOAA Fisheries and the Department of Commerce violated the National Environmental Policy Act (NEPA) and the Regulatory Flexibility Act (RFA) when designing and implementing the final rule.
February 13, 2020 — The Trump administration on Tuesday hosted the first of two hearings on its proposal to speed energy and other projects by rolling back a landmark environmental law. Opponents from Western states argued the long-term benefits of keeping the environmental reviews.
Among other changes, President Donald Trump wants to limit public reviews of projects — a process that’s enshrined in the National Environmental Policy Act signed in 1970 by President Richard Nixon. The administration also wants to allow project sponsors to participate at an early stage of drafting federal environmental impact statements.
Dozens of environmental and tribal activists testified at the Denver hearing of the president’s Council on Environmental Quality.
The act “is not just a tool to reduce impacts to the environment,” said Gwen Lachelt. a commissioner in Colorado’s La Plata County. “It’s a basic tool of democracy.”
Representatives of oil and gas groups countered that multiyear environmental reviews of pipelines, coal mines and renewable energy projects kill jobs. increase costs and often outlast a project’s economic feasibility.
That proposed changes chagrined Jeannie Crumly, a rancher from Nebraska who has fought construction of the Keystone XL oil pipeline for more than a decade. President Barack Obama canceled the project, only to have it resurrected by Trump.
January 8, 2020 — The White House is poised to exclude climate considerations from its controversial rewrite of rules surrounding the nation’s core environmental law.
The Council on Environmental Quality’s proposed changes to National Environmental Policy Act guidelines will likely emerge this week.
NEPA, signed into law by President Nixon, gives communities input and allows them to challenge federal decisions on projects like pipelines, highways and bridges. And it requires federal regulators to analyze a host of impacts.
The Trump plan is expected to “simplify the definition of environmental ‘effects’ and clarify that effects must be reasonably foreseeable and require a reasonably close causal relationship to the proposed action,” according to a draft White House memo obtained by E&E News.
In other words, the government could only study the impacts tied directly to a project — not how a project would add to a larger problem, something environmentalists have been clamoring for.
“No one pipeline causes climate change, so that wouldn’t be considered a reasonably close causal relationship,” explained Christy Goldfuss, a senior vice president at the left-leaning Center for American Progress (CAP). “I suspect that’s the intent.”
October 31, 2019 — Maquoit Bay in Brunswick and Puget Sound in Washington state are separated by thousands of miles, but shellfish farmers in both places are feeling some heat.
Earlier this month, a federal judge in Seattle ruled that the U.S. Army Corps of Engineers permit that authorizes virtually all shellfish aquaculture in Washington state was void because “the Corps has failed to adequately consider the impacts of commercial shellfish aquaculture activities” as required by the federal Clean Water Act and the National Environmental Policy Act.
The court’s order could force Washington’s shellfish farmers to cease activities other than the harvest of animals already in the water until the Corps issues individual permits for each shellfish farming site.
For the moment, the court’s decision applies only to the Washington state aquaculture industry but, even if the court expands its reach, Maine’s aquaculture industry won’t be affected.
“It has no bearing in the rest of the country,” Jay Clement, chief of the Maine Project Office in the Corps of Engineers’ New England District Regulatory Division, said last week.
The permit the court considered was a “nationwide permit” authorizing discharges, structures and work related to commercial shellfish aquaculture activities.
“There have been no nationwide permits in New England since 1995,” Clement said. “It really doesn’t apply to how we do business in Maine.”
November 15, 2018 — The following was released by the Bureau of Ocean Energy Management (BOEM):
Intergovernmental Renewable Energy Task Force Meeting on the New York Bight
November 28, 2018
Hotel Pennsylvania
401 Seventh Avenue at 33rd Street
New York, NY 10001
Draft Wind Energy Areas
After reviewing the comments received in response to the Call for Information and Nominations, comments received during stakeholder meetings and general feedback, BOEM has delineated draft Wind Energy Areas in the New York Bight.
What is a Wind Energy Area?
As a reminder, a Wind Energy Area is a portion of the Outer Continental Shelf identified by BOEM for an Environmental Assessment under the National Environmental Policy Act (NEPA). Traditionally, BOEM has identified a Wind Energy Area and then offered that entire area for sale as a Lease Area. However, the fact that an area is designated as a Wind Energy Area does not mean that it will necessarily be offered for sale. The proposed area for sale, or Lease Area, will be determined at the Proposed Sale Notice stage.
What do the different colors mean?
The Draft Wind Energy Areas are depicted in two colors, dark green and light green. The dark green areas are BOEM’s primary recommendations, areas that relative to others with in the Call Areas present the least amount of conflict with a potential offshore wind facility. Areas in light green are secondary recommendations, which are slightly more conflicted than the dark green areas, and are where BOEM welcomes additional stakeholder perspectives.
Task Force Agenda
Please see a draft task force agenda below. Note that it is subject to change prior to the meeting date.
New York Bight Task Force Roster (as of November 14, 2018)
If you would like to provide updated contact information to BOEM, please reach out to luke.feinberg@boem.gov.
October 1, 2018 — WASHINGTON — The following was released by the Fisheries Survival Fund:
Late yesterday, the U.S. District Court for the District of Columbia denied a ruling for summary judgment in the ongoing lawsuit against the leased wind farm area in the New York Bight. While the Fisheries Survival Fund (FSF) is pleased that the court found that the fishing industry and affected port communities have standing to bring claims in the case, we are concerned with other aspects of the ruling.
Specifically, we are troubled by the court’s finding that our claims under the National Environmental Policy Act (NEPA) are not ‘ripe.’ The court held that, because the Bureau of Ocean Energy Management (BOEM) retains some authority to preclude surface disturbing activities in the period between issuing a lease and the approval of a construction and operations plan, the lease itself does not constitute the irretrievable transfer of resources required under NEPA. The court found that the “lease sale does not represent the final word on anything, nor does it commit any resources, even putting aside the question of whether it does so irretrievably.”
This suggests that the court views the lease as something akin to a ‘ticket’ to proceed, rather than a guarantee of any rights. Just as a concertgoer’s ticket can be revoked by a venue for inappropriate behavior, the court seems to contend that the leaseholder’s ‘ticket’ for at-sea development can be revoked by BOEM at any time. But in fact, judicial precedent interpreting the Outer Continental Shelf Lands Act (OCSLA) has held that the leaseholder gains more rights as development proceeds, and as more time and money are invested in a project. This means that, the further development proceeds, the more difficult it becomes for plaintiffs to overturn a leasing decision.
We are concerned that the court’s view of the case as premature at the leasing stage, combined with case law finding a leasing challenge too late at the construction and operation plan phase, leaves plaintiffs with no opportunity to challenge this siting decision.
We are encouraged the court never contested our view that the unsolicited bid procedure allowed BOEM to decide, behind closed doors, what area of the ocean was to be leased. But we are troubled by the court’s ruling that our OCSLA claims are barred because we did not comply with the provision requiring 60 days notice of an intended filing. We were not able to provide 60 days’ notice, because BOEM scheduled the lease sale only 45 days after publication of the Final Sale Notice.
The court held that we were not excused from compliance with the 60-day notice period because the statute does not require BOEM to schedule its lease sales with sufficient time to accommodate potential claimants. If the court’s position is upheld, BOEM apparently would have the ability to lease any portion of the ocean unchallenged, and would deny any harmed parties their right to challenge a proposed lease sale under the OCSLA. We believe given these circumstances that we should have been granted an exemption from this requirement.
About the Fisheries Survival Fund
The Fisheries Survival Fund (FSF) was established in 1998 to ensure the long-term sustainability of the Atlantic sea scallop fishery. FSF participants include the vast majority of full-time Atlantic scallop fishermen from Maine to North Carolina. FSF works with academic institutions and independent scientific experts to foster cooperative research and to help sustain this fully-rebuilt fishery. FSF also works with the federal government to ensure that the fishery is responsibly managed.
July 19, 2018 — Green groups are suing the Trump administration over its decision to expand drilling in the Gulf of Mexico.
Earthjustice filed the lawsuit on Monday on behalf of three groups, the Gulf Restoration Network, the Sierra Club and the Center for Biological Diversity, against the Interior Department and Bureau of Ocean Energy Management.
The suit targets a decision from the administration to open up 78 million acres of the Gulf to potential drilling.
The groups say regulators have failed to do the necessary environmental checks and are in violation of the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA).
“The Gulf is one of the most productive marine regions in the United States, supporting many species of turtles, dolphins and whales as well as accounting for one third of the nation’s seafood catch every year,” said Cynthia Sarthou, executive director of the Gulf Restoration Network, in a statement.
April 25, 2018 — The following was released by the House Committee on Natural Resources:
Today at 2:00 PM EST, the Full Committee will meet to examine the weaponization of the National Environmental Policy Act (NEPA) and the implication of environmental lawfare.
Originally designed as a tool to protect the environment, NEPA has become a tool of obstruction, and in many cases, ironically, has caused more harm than good for the environment. Litigation activists, extreme environmentalists and special interest groups will do everything in their power to stop, delay or restrict federal projects, and the avenue created by the vague and ambiguous language of NEPA is their go-to weapon of choice in the courts.
Excessive lawsuits have led federal agencies to make environmental analysis documents “bullet-proof,” in fear of litigation. This “analysis paralysis” approach is costly to American taxpayers, lengthy and overall prevents critical projects from getting off the ground. Our nation’s environmental review and permitting process takes significantly longer than other Western democracies with comparable, stringent environmental protections. Germany, Canada and Australia are all able to approve most major infrastructure projects within TWO YEARS. Why should a developer invest in American projects or infrastructure where the threat of litigation and delay is so great, when they can go elsewhere? NEPA doesn’t just impact oil and gas development, but also renewable energy projects, infrastructure, water shortages in the West, and proper forest management to prevent catastrophic wildfires.
NEPA → Foreign Dependency on Energy
Earlier this year, our friends in New England received a late Christmas present from the Kremlin: Russian Natural Gas. The reason? A lack of infrastructure and pipelines to transport domestic energy. As long as extreme environmental groups continue to weaponize NEPA and halt energy infrastructure projects, our nation will continue to be dependent on foreign energy.
NEPA → Exacerbates the Western Water Crisis & Aging Infrastructure
The construction of desperately needed water infrastructure projects in the West is at a standstill. Why? NEPA. And because of this, we have a water supply today that falls short of meeting today’s need.
In one instance, it’s taken the Bureau of Reclamation and the California Department of Water Resources (DWR) 16 years and counting to study and approve the proposed Sites Reservoir, a new 1.8 million-acre-foot off-stream reservoir in northern California. Throughout the process, 52 alternative locations for the reservoir have been evaluated. This potential project – along with others in the state – continue to be subject to seemingly endless studies necessitated by burdensome NEPA requirements more than a decade after they were initiated. Californians are still waiting for this project to be approved, while the opportunity to increase smart surface water storage remains gridlocked under environmental review.
NEPA → Wildfires
Lawson Fite, General Counsel of the American Forest Resource Council, who testified before the Committee last year, argues that a large percentage of lawsuits aren’t targeted as specific legal violations, but are instead used by self-proclaimed “environmental groups” to halt or prevent forest restoration activities.
Just last year, an extreme environmental organization used NEPA as a tool to sue and subsequently stop fire mitigation projects in Lincoln, Montana. Two wildfires ignited weeks later.
Learn more about the House Committee on Natural Resources by visiting their site here.
January 17, 2018 — Below is the text of testimony state Sen. Tom Davis, R-Beaufort, plans to deliver Friday, Jan. 19, before the U.S. House Committee on Natural Resources’ Subcommittee on Energy and Mineral Resources.
The hearing is titled “Deficiencies in the Permitting Process for Offshore Seismic Research.”
Davis provided the text to The Island Packet and The Beaufort Gazette on Wednesday.
1. Impact of seismic testing:
Seismic testing involves firing loud sonic guns into the ocean floor every 16 seconds to read echoes from the bottom geology, with the tests taking place over miles of ocean for months at a time. The National Oceanic and Atmospheric Administration (NOAA) confirms that the sound from the sonic guns can be recorded from sites more than 1,860 miles away.
Scientists disagree on whether these underwater noises are lethal, but most do agree the blasts could alter sea mammals’ behavior, affecting their migration patterns, mating habits and how they communicate with each other. Most animals in the ocean use sound the way animals on land use eyesight; saturating their environment with noise will have an impact. ExxonMobil had to suspend seismic-blasts near Madagascar after more than 100 whales beached themselves. NOAA estimates that 138,000 marine animals could be injured, and 13.6 million could have their migration, feeding, or other behavioral patterns disrupted.
Seismic testing also affects commercial and recreational fishing — sonic blasts can decrease catch rates of commercial fish species by an average of 50 percent over thousands of square miles. Seismic blasting will affect fish that spawn in the rivers and estuaries all along the East Coast. A 2014 study cited by Congressmen John Rutherford (R-FL) and Don Beyer (D-VA) that found reef fish off North Carolina declined by 78 percent during seismic testing compared with peak hours when tests weren’t being conducted.
2. Results of seismic tests would be proprietary to private companies.
Proponents for testing and drilling often argue that seismic tests are necessary in order to provide coastal communities with data about oil and gas deposits off their shores that is necessary in order to assess whether it makes economic sense to move forward with drilling for those resources. But that information is considered proprietary by the private companies conducting them. Local decision makers won’t have access to it, nor will the public. Not even members of Congress can get their hands on it.
3. Damages associated with drilling.
Accidents happen in a world where human error, mechanical imperfections and coastal hurricanes all play unexpected roles. When you drill, you spill. It is inevitable. The oil industry touts a 99 percent safety record, but that 1 percent is pretty horrific for people living in the vicinity of a spill when it occurs. The federal Mineral Management Service predicts at least one oil spill a year for every 1,000 barrels in the Gulf of Mexico over the next 40 years — a spill of 10,000 barrels or more every three to four years.
We saw what happened in the Gulf of Mexico in 2010 when the BP Deepwater Horizon rig spilled millions of barrels of oil into the gulf. It was a disaster, but thankfully the Gulf’s bowl-like shape contained the spill in that region. A similar spill off the Atlantic Coast would be a disaster of epic proportions. If oil entered the Gulf Stream it would be forced up into the Chesapeake Bay, the Hudson River Valley, the Gulf of Maine, the Grand Banks (some of the richest fishing grounds in the world).
The Gulf of Mexico Deepwater Horizon blowout showed that oil cannot be removed from salt marshes and other wetland systems. It can remain in the sediments for decades, as was seen in marshes in Massachusetts. Coastal salt marshes in South Carolina are among the most productive ecosystems in the world, and nursery grounds for many estuarine and marine species. Toxic substances from oil spills, both chronic and acute, will put all of these organisms at risk.
Even if a spill never occurs — and both the oil industry and the federal government admit that spills are inevitable – there’s still an adverse impact to South Carolina’s coast in that the land-based infrastructure necessary to support offshore drilling is dirty and highly industrial. Also, the infrastructure required to transport offshore oil is devastating, e.g., a series of canals built across Louisiana wetlands to transport oil has led to vast destruction of marshlands. Healthy marshlands are a critical component of our ecosystem.
Read the rest of Davis’ future testimony at the Island Packet
November 29, 2017 — WASHINGTON — The following was released by the House Committee on Natural Resources:
Today, the Full Committee held an oversight hearing to discuss improving and modernizing the National Environmental Policy Act (NEPA). The panel discussed deficiencies in NEPA’s implementation and potential legislative improvements to enable the law to best serve its intended purpose.
“In 1969, NEPA was originally designed as a tool to assess the impacts of government actions on the environment. Unfortunately, today it has become a sweeping regulatory framework that does the exact opposite,” Chairman Rob Bishop (R-UT) stated.
“We can both better protect the environment and allow for thorough review and processing of critical economic, energy and infrastructure activities in a timely manner. These concepts are not mutually exclusive. But it simply won’t happen unless Congress acts to clarify NEPA’s intent, scope and limitations,” Bishop added.
Witness Philip Howard, Chairman of Common Good, noted that prolonged environmental reviews on a range of NEPA projects negatively impact the environment, a contradiction of NEPA’s original intent. He cited NEPA-related permitting delays in rebuilding the nation’s highway infrastructure resulting in an extra 51 million tons of carbon dioxide emissions.
“These delays are costly and, often, environmentally destructive,” Howard said.
Howard lauded NEPA’s original environmental objectives. The goals, however, “have been subverted by a process that takes years and ends up interfering with important projects instead of promoting better projects.”
Witness James Willox, Wyoming County Commissioners Association Member, reiterated the disconnect between NEPA’s intent and the statute’s implementation.
“What was once a helpful look at proposed actions has metastasized into a grotesque perversion of Congressional intent whereby agency officials are forced into years of analysis and reams of paper designed to fend off litigation instead of making sound, informed policy decisions,” Willox said.
“NEPA itself was never intended to be an obstructionist part of our infrastructure nor building of any other thing. But it has been used as that,” Rep. Don Young (R-AK) stated. “NEPA should not be used to slow down and impede development because it does not protect the environment. And that’s really what we should be talking about.”
Witness Mike Bridges, Washington State Building and Construction Trades Council Executive Board Member, echoed the same concerns, emphasizing the law’s negative economic impacts.
“The seemingly endless and arbitrary regulatory process in Washington State will discourage future projects that would employ members of the Building Trades and my community,” Bridges said.
Members and the panel discussed changes to the law including increasing the role of counties and local governments, fast-tracking the permitting of projects, and avoiding duplicative environmental analyses.
“Counties in Wyoming and across the West are ready and willing to assist in the goal of modernizing NEPA to ensure that it continues to work for the benefit of decision-makers,”Willox said.
Click here to view full witness testimony.
Learn more about the House Committee on Natural Resources by visiting their site here.