Trump NEPA Initiatives to Expedite Energy Infrastructure: “One Federal Decision”

One of President Trump’s first actions was to issue Executive Order 13766, “Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects” (Jan. 24, 2017), directing the Council on Environmental Quality (“CEQ”) to begin efforts to identify high priority infrastructure projects and expedite federal environmental reviews required by the National Environmental Policy Act (“NEPA”). This was followed by the more detailed EO 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects” (Aug. 15, 2017) describing the “One Federal Decision” (“OFD”) policy. The CEQ, the Department of the Interior (“DOI”) and the Bureau of Land Management (“BLM”) have taken several actions to implement this presidential OFD direction.

The challenge the EO is trying to address is the integration and timely coordination of the multiple federal agencies, federal laws and permit decisions that are triggered by a major infrastructure project. Expediting NEPA is not new; Congress and prior administrations have addressed the need for permit streamlining for at least the last 15 years. For example, in 2001, President George W. Bush created a NEPA Task Force to modernize agency regulations implementing NEPA. In 2004, BLM issued a “cooperating agency” rule directing that BLM invite state, local and tribal governments to participate as cooperating agencies in the Bureau’s NEPA processes. In 2003, as part of the President’s Healthy Forest Initiative, bi-partisan legislation, the Healthy Forest Restoration Act, was enacted to expedite NEPA and court review of hazardous fuels reduction projects. Congress also created expedited NEPA for airports (Vision 100 Act of 2003), for highway and transit construction (SAFETEA-LU Act of 2005), and for oil and gas and LNG terminals (Energy Policy Act of 2005).

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After Years of Planning, the Forest Service Approves Arapahoe Basin’s Ski Area Expansion (WAHOOOO!)

On March 3rd, the attorneys of Welborn Sullivan Meck & Tooley will embark on our annual ski trip to Arapahoe Basin in the White River National Forest.  We look forward to the trip as a highlight of each winter season and, if we’re being honest with ourselves, a highlight of the year when all the hustle of firm life is exchanged for the exhilaration of a ski day in the Colorado mountains.  It is not too often that we lawyers get outside for an entire day to rip runs and bask in the sun.  

This year we will miss our fearless leader on the slopes and winter’s biggest fan, Chelsey Russell.

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Weighing the Scales: Master Leasing Plan Aims to Balance Oil, Natural Gas and Mining with Conservation of Arches and Canyonlands National Parks

Internationally known for rugged landscapes and stunning views, the treasured Arches and Canyonlands National Parks now have a plan, that is, a Master Leasing Plan.  

The Bureau of Land Management (“BLM”) introduced the concept of Master Leasing Plans (“MLPs”) as part of a suite of federal onshore oil and gas leasing reforms rolled out by Secretary Salazar in early 2010.  The MLP’s intended purpose is to harmonize competing resources, i.e., the balancing of oil and gas development with conservation of natural and cultural resources.  MLPs provide BLM with an additional land use planning tool, allowing it to amend a governing resource management plan (“RMP”) to include new terms and conditions imposed by the MLP.  The goal, but not necessarily the reality, is to reduce risk of litigation and community protests over oil and gas leasing by enlisting early stakeholder input about where energy development is appropriate and how to protect other resources.

According to BLM, the purpose of an MLP is to allow for “more in depth review” of areas that are or may be opened to oil and gas leasing than would typically be found in the governing RMP.  Under the framework, BLM can designate certain areas of public lands located as “sensitive landscapes,” or areas containing a “high level of potential resource concerns” as MLP areas. The MLP area is then analyzed on a landscape level, where competing resource values are evaluated. The result is a comprehensive plan for long term oil and gas development in the area, rather than the straightforward designation of “open,” “closed,” or “open with stipulations” as typically found in RMPs.  Because amendments to RMPs must comply with the National Environmental Policy Act (“NEPA”), the MLP analysis and review first takes the form of an Environmental Impact Statement (“EIS”) or an Environmental Analysis (“EA”), the final version of which then modifies the relevant RMP.

In a Record of Decision (“ROD”) signed December 15, 2016, BLM Utah State Director Ed Roberson finalized the multi-year NEPA effort to complete the Moab Master Leasing Plan, the first MLP to be approved in the state.  The agency expressed confidence that the plan “will guide responsible mineral development . . . while also protecting important natural resources, iconic scenery, and recreational opportunities.”

The Moab MLP identifies where oil, gas and minerals development will be allowed within the 785,000-acre planning area.  Notably, the Moab MLP applies only to new leases and aims to provide certainty by informing the oil and gas and mining industries about where development can occur in a region dotted with Native American cultural sites, popular hiking trails, spires, mesas, natural bridges and arches that draw over 2 million visitors a year.

The Moab MLP also closes 145,000 acres of BLM lands near the Arches and Canyonlands National Parks to future mineral leasing, caps well densities on projects in sensitive areas, and places “no surface occupancy” restrictions on about 306,000 acres “that are highly valued for scenery and recreation.”

According to Secretary Jewell, “This plan takes a landscape-level approach to balancing the protection of the iconic scenery in and around Moab with access to the rich energy resources found there.”

Expectedly, conservation groups enthusiastically embrace MLPs as adding what they view as a necessary layer of environmental analysis focused on issues related to oil and gas development and trust that the MLP process is an appropriate addition to BLM’s toolbox.  In response to the announced Moab ROD, conservationists appear to appreciate a planned vision of where energy development can be managed and where other values, like wilderness and recreation, need to be protected.  

By contrast, industry believes that by restricting access to the region’s mineral resources through the Moab MLP, the negative consequence will be $2 billion in lost economic opportunity for surrounding local communities.  Industry estimates that the Moab MLP planning area contains 145 billion cubic feet of natural gas and 32.5 million barrels of recoverable oil.  Industry has serious concerns that BLM has departed from its Federal Land Policy and Management Act of 1976’s multiple use mandate--whereby many uses co-exist, from ranching to energy to recreation on public lands--to managing for a single “use,” preservation. 

Although the Moab plan can be legally challenged, it cannot be undone by the stroke of the presidential pen alone.  

BLM approved, or is or in the process of developing, more than a dozen MLPs across millions of acres of public lands in Colorado, Utah and Wyoming.  In fact, on December 20, 2016 BLM announced its formal commitment to develop a southwestern Colorado MLP for about 71,000 acres in La Plata and Montezuma counties, including parcels near Yucca House National Monument and Mesa Verde National Park. 

For additional background on MLPs, see the firm’s 2014 blog post: So what is a Master Leasing Plan anyway?

 

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The Dakota Access Pipeline and What It Means

On September 9, 2016, 30 minutes after winning and stopping the Standing Rock Sioux Tribe’s (“Sioux” or “Tribe”) request to enjoin the Dakota Access Pipeline (“DAPL”), the Obama administration upended the rule of law. The Departments of Justice, Army and the Interior issued a joint statement that the U.S. Army Corps of Engineers (“Corps”) “will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its pervious decisions regarding Lake Oahe site under the National Environmental Policy Act (“NEPA”) or other federal laws.” The Administration then asked the company to “voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.”

The DAPL is the latest energy touchpoint. Tribes from all over the U.S. are joining the Sioux as they construct a winter encampment on the Corps-managed land. Neil Young has penned a new anthem, “Indian Givers,” arguing “There’s a battle raging on sacred land/our brothers and sisters have to take a stand.” Green Party presidential candidate Jill Stein and movie actress Shailene Woodley (“The Secret Life of the American Teenager”) have been jailed in support of this energy infrastructure protest.

The DAPL is a 4-state, 1,172 mile pipeline built to transport North Dakota Bakken oil to an Illinois refinery by Energy Transfer, a Texas company. None of the pipeline right-of-way is located on Sioux land, but is within ½ mile of the reservation boundary; over 90% of the right-of-way is on private land. Only 3% of the pipeline requires federal approval and only 1% affects federal waters of the U.S. and, thus, the jurisdiction of the Corps.

The $3.8 billion pipeline is 60% complete at a cost of $1.6 billion dollars. The Corps right-of-way at issue is under Lake Oahe, a flood control project managed by the Corps on land that once was part of the Sioux reservation.

The DAPL needed a number of Clean Water Act (“CWA”) permits from the Corps. On July 25, 2016, the Corps issued its Final Environmental Assessment for 200 crossings (37 miles) of jurisdictional water of the U.S. under Nationwide Permit #12 (“NWP 12”). The CWA NWP 12 authorizes pipeline construction where the construction will affect no more than a half-acre of regulated waters at any single crossing. In addition, the Corps had to analyze several Rivers and Harbors Act of 1899 (33 U.S.C. § 408) section 408 permits including the one at issue to cross a federal flood control project, Lake Oahe.

Any “federal action” under NEPA and “federal undertaking” under the National Historic Preservation Act (“NHPA”), like the CWA permits here, triggers compliance with the procedural requirements of NEPA and NHPA. NHPA § 106, among other things, requires federal agencies to “consult” with Native Americans on impacts of “undertakings” to historical and cultural resources. The consultation is required whether or not the action is on reservation land – an historic or spiritual connection to the land suffices. Compliance is the act of consultation; consensus or approval by the Tribe is not required. The Corps approach is to consider each separate pipeline crossing as a single “undertaking” for NHPA purposes, but does not treat the entire pipeline as one undertaking. Therefore, each separate crossing has a narrow geographic focus (“area of potential effect”) for NHPA consultation.

In the Tribe’s injunction request to the D.C. District Court, the Sioux argued that the Corps did not adequately consult and that construction of the pipeline in this area threatens graves and sacred sites. The court in an exhaustive analysis of the Corps consultation action found that “this is not a case about empty gestures . . . the Corps and the Tribe engaged in meaningful exchanges that in some cases resulted in concrete changes to the pipeline’s route.”

For the Sioux, the inadequacy of the consultation was its crossing-by-crossing focus. The Tribe argued that consultation should focus on the entire length of the pipeline. Because the Corps refused this focus for the consultation, the Tribe would not formally consult. The Advisory Council on Historic Preservation, a federally chartered entity with a NHPA-directed role to play in consultations, became involved and disputed the Corps’ assertion that the entire pipeline was not subject to the Corps’ jurisdiction.

The current status of the DAPL is that the several emergency injunctions of construction for portions of the pipeline on either side of Lake Oahe have been lifted. The company continues its pipeline construction on fee land despite the Administration’s renewed request that they voluntarily stand down. The D.C. District Court is poised to consider the case on the merits, while the D.C. Circuit prepares to consider the appeal of the D.C. District Court’s September denial of the injunction. Meanwhile, the Administration has begun a nationwide consultation process with Native Americans to improve the NHPA consultation process. The Corps has told the court that it will make a decision on the Section 408 permit for the Lake Oahe crossing in “weeks not months,” but cautions that its decision could require additional process. This could include supplemental NEPA, an environmental impact statement (“EIS”) or additional NHPA consultation. It is anticipated that such action will occur after the first Tuesday in November.

But this case is bigger than the DAPL. It represents the latest stage in the 350.org “Keep It in the Ground” movement to stop not only oil and gas development but the necessary infrastructure to transport it to market. Over the last few years, oil and natural gas pipelines have faced environmental and climate change opposition across the U.S. In October, climate activists targeted 5 cross-border pipelines transporting Canadian oil sands petroleum to U.S. markets by shutting down valves. The “Keep It in the Ground” movement is an effort with serious safety and economic implications for the oil and gas industry.

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Gold King Mine Accident Highlights Risks Posed by Abandoned Mines

On August 5, 2015, EPA personnel were working with a private contractor on a water quality project at the Gold King Mine near Silverton, Colorado. The intent of the project was to assess ongoing mine water leakage and to identify and evaluate options for additional mine water treatment and for reduction in the amount of mine water that flows into Cement Creek. In the course of this project, workers inadvertently damaged a tailings pond that had been built to slow and treat mine water outflow. This resulted in destruction of the pond and a discharge of over 3 million gallons of mine waste water and tailings into Cement Creek, a tributary of the Animas River.

Since this event, EPA officials have engaged in ongoing water quality testing and report that contamination levels in the Animas River have decreased to pre-spill levels. The Colorado Department of Public Health and Environment has reached similar conclusions and reports that the river has returned to “stable” conditions which means that that are no human health concerns during typical recreational exposure.

The Gold King Mine was abandoned in 1923, and according to the EPA, mine tailings were directly released into the creeks and rivers in the area until the 1930s. Prior to this 2015 accident, contaminated mine water flowed from this mine at a rate of approximately 7 gallons per minute. That rate briefly increased to more than 500 gallons per minute immediately following the accident. The EPA had previously sought to list the Gold King Mine and surrounding area as a Superfund site which would have provided additional funding for environmental remediation and clean-up. Community input, however, raised concerns about the effect of Superfund status on tourism. As a result, the EPA agreed to postpone seeking Superfund status for the site as long as measurable progress could be made to improve the water quality absent such status.

The accident at the Gold King Mine emphasizes the risks posed by the legacy of mines that were opened, operated and abandoned in the western U.S decades ago during a time when neither the technology nor the regulations necessary for effective water quality protection existed. The Gold King Mine is one of approximately 23,000 such abandoned mines in Colorado, 6127 of which have been reclaimed by the Colorado Division of Reclamation, Mining and Safety. The BLM lists 3400 abandoned mines on BLM-managed lands in Colorado. In the Upper Animas Watershed, where the Gold King Mine is located, there are approximately 400 abandoned and inactive mine sites. Numerous reclamation projects have been completed in that watershed over the last 20 years.

The BLM’s Abandoned Mine Lands Program was created in 1997 to reduce dangers to the public, public lands and the environment from health and other adverse impacts related to hard rock mines at which operations ceased prior to 1981. As of 2014, this Program had over 46,000 abandoned mine sites in its inventory. Of those, approximately one-quarter are remediated, are sites that do not require remediation, or are sites at which remediation actions have commenced.

These site clean-up and remediation actions on federal lands are governed by various federal statutes including the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the federal Clean Water Act (CWA), the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA). The lack of a robust federal budget for clean-up of abandoned mine sites and the liability that can attach to non-government actors who attempt clean-up of mine sites has inhibited progress towards addressing this mining legacy in Western states.

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The 10th Circuit Rebuffs Environmental Groups' Challenges to Keystone XL Pipeline Permit and Verification Letters

On May 29, 2015, the U.S. Court of Appeals for the 10th Circuit upheld the entry of judgment for defendant and rejected National Environmental Policy Act (NEPA) and Clean Water Act (CWA) challenges to the validity of Army Corps of Engineers' Nationwide Permit 12 (NWP 12) for the Gulf Coast Pipeline (the southern segment of the Keystone XL Pipeline) and to the verification letters issued by the Corps. Sierra Club, Inc., et al. v. Bostick, No. 14-6099, 2015 WL 3422924. Writing for the Court, Circuit Judge Bacharach (Oklahoma) held that the environmental groups had waived their NEPA claims that the Corps failed to consider the risk of oil spills and the cumulative impacts of pipelines before first issuing NWP 12 because the groups failed to raise those issues below, and (i) the risk of pipeline oil spills is not so "obvious" as to avoid waiver, (ii) the Corps' knowledge of the risk of pipeline oil spills and responsibility deferral to the Pipeline and Hazardous Materials Safety Administration (PHMSA) did not apply to avoid waiver, and (iii) the groups' cumulative-impacts objections did not adequately challenge the rationality of agency action. The Court further rejected arguments that the Corps should have prepared a new NEPA analysis for the entire Gulf Coast Pipeline before issuing Permit verification letters, holding that the issuance of verification letters did not constitute "major federal action" but mere verification that permittees may proceed under a nationwide permit, and "the Corps had no obligation to assess the environmental impacts of the entire Gulf Coast Pipeline." The environmental groups' challenges under § 404(e) of the CWA (dredge-and-fill activities) were also rejected by the Court, stating, the "environmental groups have not shown that the permit authorizes linear projects with more-than-minimal impacts, and the Corps has permissibly interpreted the statute to allow partial deferral of its minimal-impacts analysis."

Notably, NWP 12 was issued after TransCanada decided to divide the Keystone XL Pipeline into two parts after the original comment period had closed for NWP 12. The Court recognized that nationwide permits are inherently broad, encompassing a variety of activities, some of which may or may not be predicted by the permitting agency. Here, the "Corps made an environmental assessment of the predictable uses of Permit 12, but recognized the futility of predicting every conceivable use for every conceivable type of utility line anywhere in the United States. The Corps need not conduct a new NEPA analysis every time someone conceives a new use for a national permit." The Court also concluded that the record showed that the agency engineers had adequately considered cumulative impacts at proposed crossings.

In his concurring opinion, Circuit Judge Baldock (New Mexico) concurred but found "this case to be prudentially moot" due to changed circumstances.

In her concurring opinion, Circuit Judge McHugh (Utah) wrote separately concerning the Corps' problematic, overly broad definition of "pipeline" and its obligations under NEPA, finding that the Corps improperly conflated its obligations under NEPA with its obligations under § 404(e) of the CWA. "The Corps may not limit its NEPA analysis to the consideration of the environmental effects of the discharge of dredged and fill material into jurisdictional waters, as would be appropriate under § 404(e) of the CWA. Rather, for NEPA purposes, the Corps is required to consider the direct, indirect, and cumulative effects reasonably foreseeable as a result of its permitting decision. This includes the environmental effects caused by the operation of the installations authorized by the Corps' permitting decision. And this understanding of the Corps' NEPA responsibilities has been universally adopted." 2015 WL 3422924, at *18 (citations omitted). Judge McHugh nevertheless "would affirm the district court because I conclude that Sierra Club's argument that the Corps improperly deferred portions of its NEPA analysis to the verification stage was not made to the agency during the reissuance process and is therefore waived…. The Corps has been issuing and reissuing NWP 12 for decades, with no party objecting to the deferral practice." 2015 WL 3422924, at *21.

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