Weekly Newsletter | November 9, 2018

Issues

As BLM cancels Western state leases, Green groups take on leases in CO. Environmental activists in Colorado have been fighting the Bureau of Land Management (BLM) on a December oil and gas lease sale.

This week, the BLM relented to public pressure from conservation groups and elected leaders and agreed to drop parcels from an upcoming lease sale. Initially, BLM Colorado defended the lease sale, saying all five parcels of land previously up for lease are “within a producing federal oil and gas unit,” meaning these parcels are within the area already being developed for oil and natural gas and further leasing would not disrupt new, undisturbed land.

The agency also previously removed nearly 150,000 acres of greater sage grouse habitat in Colorado from the December lease sale, in part due to concerns raised by Colorado Gov. John Hickenlooper (D) Hickenlooper and Sen. Michael Bennet (D-Colo.). BLM in total has removed more than 1 million acres of sage grouse habitat from planned December lease sales in Colorado and four other Western states.

The planned lease sale in western Colorado next month is now expected to include only 23 parcels covering about 8,347 acres, far fewer than the originally proposed 227 parcels covering 236,000 acres.

What the 2018 midterm elections might mean for ESA reform. Republican members in both the House and Senate have worked hard this year to offer legislative changes to the Endangered Species Act  (ESA). With Democrats now in control of the House of Representatives, however, some expect reform efforts for the ESA to stall.

In the House, the Congressional Western Caucus has put forth a package of nine bills that would, among other changes, strike a balance between economics and conservation and require the Fish and Wildlife Service to change how it reviews scientific findings in making decisions. Rep. Raul Grijalva (Ariz.), ranking Democrat on the House Natural Resources Committee, has been highly critical of the GOP’s efforts.

Earlier this year, Grijalva promised that come February, if his party takes the House and he gets the panel’s gavel, Interior Secretary Zinke will be called to testify on recent Interior decisions to modernize the ESA and industry lease allowances. “We will conduct oversight and we will hold Interior accountable,” said Grijalva, just last month.

Senator Barrasso of Wyoming – who also kept his seat – has vowed to continue working on legislation to update the ESA. The senator has promoted a successful water infrastructure bill and proposed a revision of the ESA to give states greater authority over how the law is implemented on the ground.

Meanwhile, New Mexico elected Michelle Lujan Grisham as their new Governor. Grisham has spoken out against the recent leasing of public lands, citing endangered wildlife – similar to Colorado’s new Governor-elect, Jared Polis. Despite their criticisms, both have pledged to work with industry in the area to allow development and conservation to co-exist.

While many states are experiencing a changing of the guard, it remains clear that reform of the ESA and legislation supporting it is an issue we will continue to see in 2019.

In the News

An old flap returns over delisting Hawaiian hawk. E&E News, Sub req’d. Conservatives are getting another shot at removing the Hawaiian hawk from Endangered Species Act protections. Reviving a years long debate that has had some ideological overtones, the Fish and Wildlife Service today reopened public review of a proposal to delist the Hawaiian hawk as an endangered species. The review will be the fourth public comment period since the initial 2008 delisting proposal. Administration leaders say they want to consider the latest data concerning the bird first protected under federal law in 1967, even before passage of the Endangered Species Act in 1973. “Although new information shows negative habitat trends due to urbanization [and] nonnative plant species invasion … efforts at habitat restoration that benefit the Hawaiian hawk are being implemented and are achieving success,” FWS said. The National Wilderness Institute, founded by conservative critics of the ESA, petitioned FWS to delist the bird — also known as the ‘io — in 1997. Nothing happened, and the apparently defunct National Wilderness Institute no longer has an active website.

Justices reject endangered species case with Chevron twist. E&E News, Sub req’d. The Supreme Court will not take up a case involving sea otters and judicial deference to agencies. The justices today denied certiorari in California Sea Urchin Commission v. Combs, a challenge to the Fish and Wildlife Service’s management of threatened sea otters in California. The commission and other fishing groups, represented by the conservative Pacific Legal Foundation, had asked the high court to review a lower court ruling upholding FWS’s decision to scrap an unusual otter management plan that shuttled southern sea otters from fishing zones to San Nicolas Island off the coast of Los Angeles. The groups favored the plan because it lessened their liability for harming at-risk creatures while fishing. But FWS determined that the “no otter zones” didn’t work, as most of the mammals died or swam away. The 9th U.S. Circuit Court of Appeals sided with the agency, finding that its decision was entitled to deference under the Chevron doctrine, which directs judges to generally defer to agency interpretations of ambiguous laws. FWS had argued that the Marine Mammal Protection Act and otter-specific legislation passed by Congress in the late 1980s didn’t specify how the agency should respond if a species management plan fails.

Program will use road project fees to help imperiled salmon. E&E News, Sub req’d. Maine is launching a program to help pay for conservation work that benefits Atlantic salmon with money from fees for road and bridge projects. Salmon were once abundant in the rivers of New England, but they are now listed as endangered under the Endangered Species Act after years of habitat loss and overfishing. The Atlantic Salmon Restoration and Conservation Program can help support the fish’s recovery, the Maine Department of Marine Resources said. The program will allow public and private organizations working on road and bridge projects to pay a fee in lieu of environmental mitigation efforts that are required by law, the department said. Sean Ledwin, director of the sea-run fisheries division at the marine department, said the money will be used to “restore and enhance salmon habitat in Maine.” Money generated by the program will be administered by the state and used for projects that have “a high probability of improving habitat and recovery for Atlantic salmon,” the department said in a statement. Maine’s most active location for salmon is the Penobscot River, which is home to America’s largest remaining run of the fish. The number of salmon returning to the river every year is closely monitored and has mostly wavered between a few hundred and 2,000 over the past 10 years.

Court tosses greens’ challenge to power plant rule delay. E&E News, Sub req’d. A federal court rejected environmentalists’ challenge to EPA’s loosening of toxic wastewater restrictions for power plants late last month. The U.S. District Court for the District of Arizona ruled that it lacked jurisdiction over the claims because they centered on effluent limitations. The Clean Water Act requires that challenges to effluent rules be raised in appellate courts, not district courts. At issue is the Trump administration’s revision of EPA’s 2015 effluent limitations guidelines, which required power plants to install technology to remove heavy metals like mercury and arsenic from wastewater discharges. When Scott Pruitt took charge at EPA, the agency suspended the rule to consider scrapping or revising it. In September 2017, the agency finalized a plan to delay compliance deadlines from November 2018 to November 2020 for certain waste streams covered by the rule. The Center for Biological Diversity sued in the Arizona district court, arguing that the amendment violated the Endangered Species Act and the National Environmental Policy Act.

Feds to Supreme Court: Don’t review environmental waivers. E&E News, Sub req’d. Government lawyers are urging the Supreme Court to reject an environmental case involving President Trump’s border wall. In a brief late last month, Solicitor General Noel Francisco pushed the high court to deny a recent petition from the Animal Legal Defense Fund, Defenders of Wildlife and the Center for Biological Diversity, which say the government had no right to waive several environmental laws for projects at the U.S.-Mexico border. The Trump administration in 2017 allowed various border projects, including 15 miles of prototype wall near San Diego, to move forward without review under the National Environmental Policy Act, Endangered Species Act and several other environmental laws. The groups sued and argued, among other things, that the waivers violated the nondelegation doctrine, which prohibits Congress from transferring significant legislative power to the executive branch. A federal district court in California rejected the groups’ claims in March, finding that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 properly authorizes the government to issue waivers as needed. Francisco told the Supreme Court the district court’s decision was sound and doesn’t merit review. The brief notes that nondelegation claims have almost always failed, with courts repeatedly upholding government programs after finding that Congress gave agencies an “intelligible principle” to govern action. The immigration law’s delegation of waiver authority falls into that category, the brief said.

Judge blocks killing of red wolves. E&E News., Sub req’d. The Fish and Wildlife Service violated several environmental laws in allowing North Carolina private property owners to kill endangered red wolves, a federal judge has ruled. In a marked victory for wildlife advocates, U.S. District Judge Terrence Boyle declared that the federal agency’s red wolf actions several years ago flunked both Endangered Species Act and National Environmental Policy Act requirements. “There is no doubt that defendants’ decisions to cease wolf introductions while simultaneously increasing the likelihood of authorized lethal takes by landowners may adversely affect an endangered or threatened species,” Boyle wrote. With the decision, Boyle made permanent a preliminary injunction he previously imposed in September 2016. This means, Boyle explained, that the Fish and Wildlife Service can’t kill or authorize the killing or other form of “taking” of red wolves “without first demonstrating that such red wolves are a threat to human safety or the safety of livestock or pets.” The next steps will be up to the Fish and Wildlife Service, which earlier this year proposed formal revisions to red wolf protections. The agency recently referred questions to the Justice Department, which typically does not comment on ongoing litigation. A Justice Department spokesman said, “we are currently reviewing the decision.”