Focus
Montana federal court judge invalidates permit coverage for Keystone XL pipeline; could stymie projects across country
Bloomberg Law – April 15
The U.S. District Court for the District of Montana on Wednesday invalidated the U.S. Army Corps of Engineers’ (Army Corps) Nationwide Permit 12 (NWP 12) for the Keystone XL oil pipeline for failing to adequately consider the project's effects on endangered species. The decision is not only a significant setback for the disputed pipeline project, which recently got underway following years of delays, but has much broader implications for water crossing projects across the country that have sought permit coverage under NWP 12. NWP 12 streamlines approval for broad categories of pipelines, transmission lines, and cable projects that cross or discharge fill into federally regulated waterways. The court's order invalidates NWP 12 itself, not just as it relates to the Keystone XL pipeline project, pending completion of an Endangered Species Act consultation process; because the permit is a nationwide permit, the order bars the Army Corps from using the nationwide permit to approve any wetlands dredging and filling under the Clean Water Act in the meantime. If the order stands, the Army Corps will have to issue more time-consuming individual permits for pipeline water crossings until it completes the consultation process with federal wildlife agencies.
|
News
CalEPA issues public statement on enforcement and related policies in wake of COVID-19 crisis
CalEPA – April 15
The California Environmental Protection Agency (CalEPA), the umbrella agency that includes the Department of Toxic Substances Control, the State Water Resources Control Board, the Air Resources Board, CalRecyle, the Department of Pesticide Regulation, and the Office of Environmental Health Hazard Assessment, on Wednesday issued a press release summarizing how it intends to fulfill its mission during the COVID-19 crisis. Affirming its commitment to protection of public health, safety and the environment, CalEPA stated that its departments will continue to respond, investigate, and take necessary action on complaints related to environmental non-compliance. Referring to the U.S. Environmental Protection Agency’s (U.S. EPA) April 10 guidance on federal response to the pandemic, CalEPA stated that it will “fill any enforcement gaps left by the U.S. EPA’s decision to reduce environmental oversight.” Furthermore, it said, “ongoing clean-up of contaminated sites will be prioritized to abate or prevent an imminent threat to public health or the environment, while ensuring worker safety.” The agency acknowledged that some regulated entities would need “compliance assistance,” including extensions of deadlines, due to the pandemic, and in particular on account of emergency government directives such as state and county shelter-in-place orders. CalEPA advised that applicants for such compliance assistance must contact the appropriate CalEPA board or department to articulate the hardship before falling out of compliance, and promised that requests would be considered “in an expedited fashion.” In this regard, CalEPA’s policy is similar to that issued by the State Water Resources Control Board on March 20. Finally, CalEPA renewed its commitment “to continuing to conduct all public participation activities and decision-making in an equitable, inclusive, and transparent way.”
EPA weakens controls on mercury emissions from power plants
The New York Times – April 16
The U.S. EPA this Thursday weakened regulations on the release of mercury, a heavy metal linked to brain damage, and other toxic metals from oil and coal-fired power plants. The new EPA rule does not eliminate restrictions on the release of mercury, but instead creates a new method of weighing the costs and benefits of requiring industry to curb mercury pollution. Environmental advocates claim the new methodology could be used to undermine the legal underpinnings for controlling emissions of mercury and many other pollutants, and justify loosening restrictions on any pollutant that the fossil fuel industry has deemed too costly to control. The weakening of the mercury rule would be one of the most significant regulatory rollbacks of EPA rules adopted during the Obama administration.
EPA declines to tighten fine particulate matter emissions standards
Reuters – April 7
The U.S. EPA this Tuesday rejected the recommendation by EPA staff scientists to lower the National Ambient Air Quality Standards (NAAQS) for fine particulate matter emissions. Staff recommended that the current maximum set in 2012 at 12 millionths of a gram of fine particles per cubic meter of air be lowered to 8 millionths of a gram per cubic meter, after research showed respiratory damage could occur at current standards. Citing a review of scientific research and consultations with the EPA’s independent science advisers, EPA Administrator Andrew Wheeler said that, “We believe that the current standard is protective of public health ... and does not need to be changed,” but acknowledged there are “still a lot of uncertainties” around fine particulate matter.
State Department of Fish and Wildlife seeks to have Joshua trees listed as endangered species
Los Angeles Times – April 13
In response to a petition filed by the Center for Biological Diversity, the state Department of Fish and Wildlife on Monday recommended that the Joshua Tree be considered for listing as an endangered species under the California Endangered Species Act. If the State Fish and Game commissioners decide to list the tree as endangered when they meet in June, state wildlife managers will be required to devise a recovery plan for the trees, which could limit development on some of Southern California’s sunniest real estate. Critics argue that the recommendation is a misguided overreach because the trees are already protected under many local ordinances, are within an 800,000 acre national park, and the listing would overly burden the ability of local residents to improve their private property – where 40% of the trees are located.
Largest dam removal project in U.S. takes further step forward
Water Power & Dam Construction – April 14
The Klamath River Renewal Corporation’s (KRRC) plans to remove four dams located along the the Klamath River in southern Oregon and northern California – the largest dam removal project in the U.S. - has taken a major step forward with last week’s issuance of a Final Water Quality Certification permit and Final Environmental Impact Report from the California State Water Board. KRRC aims to remove these dams in a bid to restore volitional fish passage up and down the Klamath River and restore formerly inundated lands and channels, and implement required mitigation measures in compliance with all applicable federal, state, and local regulations. KRRC aims to remove these dams in a bid to restore volitional fish passage up and down the Klamath River, to restore formerly inundated lands and channels, and to implement required mitigation measures in compliance with all applicable federal, state, and local regulations.
|