• Patrick Traylor of Hogan Lovells will discuss MBTA incidental take at an in-person meeting of IPAA’s Environment and Safety Committee in Houston on May 16. There is no cost to attend. Please register by COB today if you intend on coming. Registration info can be found here.

Issues

Environmental groups sue feds over Ohio oil and gas development. Four environmental groups sued the federal government this week over its oil and natural gas development plans in Wayne National Forest, located over the Utica and Marcellus shale formations. The groups are concerned that hydraulic fracturing could have a negative impact on the forest and a few species protected by the Endangered Species Act.

“(The suit) is simply another attempt to halt the nation’s development of our natural resources,” said Shawn Bennett, Executive Vice President of the Ohio Oil and Gas Association. “As with any well, oil and gas producers will go through rigorous state and federal permitting processes to ensure that their activities are protective of health, safety and the environment before they are able to drill.”

The Center for Biological Diversity, Sierra Club, Heartwood, and Ohio Environmental Council say the Bureau of Land Management (BLM) and the Forest Service failed to adequately evaluate the impacts of the Obama administration’s decision last December to issue leases for 670 acres in the forest. A BLM environmental assessment issued last year found that leasing up to 40,000 acres in the forest would not “significantly affect the quality of the human environment.”

Supreme Court declines challenge to polar bear critical habitat. The U.S. Supreme Court on Monday declined to hear a challenge to the Obama administration’s 2010 decision to designate 187,000 square miles of Alaskan coastal land and the surrounding sea ice as critical habitat for polar bears. The decision lets stand a 2016 appeals court ruling that supports the U.S. Fish and Wildlife Service’s designation.

The challenge to the decision was brought by the Alaska Federation of Natives, the Alaska Oil and Gas Association, and the State of Alaska., who argued that the appeals court decision allowed the agency to make “sweeping designations (in this case an area the size of California) that overlap with existing human development (including, even, industrial areas).” The designated habitat covers “the entire ancestral homelands for certain Native communities, as well as the largest and most productive oil field in North America,” the groups wrote.

The groups said the designation would have no impact on polar bears, who are threatened by an anticipated loss of sea ice and not commercial and industrial activities, but would have major economic consequences for Alaskan communities.

In the News

Omnibus deal signals shift from riders in GOP strategy. E&E News (sub req’d). Sen. Lisa Murkowski (R-Alaska) has pushed for years to win federal approval to build a gravel road through the remote Izembek National Wildlife Refuge in her state. But she’s not fretting that her provision permitting the road did not make it into the more than 1,600-page bipartisan spending package. The Senate later today will likely follow the lead of the House, which approved the $1.017 trillion fiscal 2017 omnibus yesterday, 319-118. The bill, the first major piece of legislation to move this year, funds nearly all of government and rejects the steep cuts sought by the administration for U.S. EPA, renewable energy programs and climate science. Several riders that were included in the omnibus were present in the most recent stopgap spending bill and other recent funding legislation. These include a provision barring Clean Water Act permits for certain farming activities, language blocking the Fish and Wildlife Service from listing the greater sage grouse under the Endangered Species Act, and a section that barred funds from being used to regulate lead in fishing products and ammunition.

Junipers vs. sage grouse. La Grand Observer. Christian Hagen says bird experts had long believed that sage grouse stayed away from juniper trees. But today they can cite long-term research rather than just the stories they swapped while bouncing along in pickup trucks on the tracks that pass for roads in much of the sage grouse’s habitat in Eastern Oregon’s sagebrush steppe. “I’m tremendously excited to see this positive signal,” said Hagen, an avian ecologist at Oregon State University and co-author of a new study that shows sage grouse, a candidate for federal protection, prefer to nest in places free of junipers. The U.S. Fish and Wildlife Service decided in 2015 to not list sage grouse as threatened or endangered, although environmental groups continue to advocate for its protection. John Severson led the study as research for his dissertation at the University of Idaho. The study was published in the journal PLOS ONE, a peer-reviewed publication. The research, done between 2010 and 2014 in Lake County, Oregon, and in California and Nevada near the Oregon border, strengthens the scientific case that removing juniper can make habitat more suitable for sage grouse, Hagen said. Although the study was done in South-Central Oregon, Hagen said he’s confident that the findings are relevant throughout the sage grouse’s range, which in Oregon extends as far north as Baker County.

Trump, Zinke shift course on public lands. Elko Daily Free Press, Editorial. The rush is on to give states more control of the vast expanses of public land within their borders. While no wholesale transfer of land ownership is anticipated, states like Nevada would benefit greatly from any transfer of control over the management of land within their borders. For example, a revision of the Endangered Species Act — as proposed by our U.S. Sen. Dean Heller and Sen. Rand Paul of Kentucky – would give governors some authority over listings, which now total more than 1,650 species of plants and animals. Also in the past week, President Donald Trump ordered the review of national monument designations, calling them “a massive land grab.

Greens, states back industry in jurisdictional fight. E&E News (sub req’d). The Waterkeeper Alliance said the confusion over the correct legal venue “uniquely affects” it alone among challengers to the rule because it also alleged violations of the Endangered Species Act and the National Environmental Policy Act. Cases brought under those laws are typically heard first in district courts. In its brief, the Utility Water Act Group, a coalition of electric utilities and their trade organizations, argued that keeping the litigation in district courts would allow for a “full opportunity” to examine the broad impacts and implications of the rule. Consolidating all the challenges into an appellate review would foreclose the “type of review that is critical for such a sweeping and important rule,” the utility interests said. NOTE: E&E News (sub req’d) also reports.