All Condemned, and Nothing to Build

The New York Times has a great piece on how the massive private redevelopment of downtown New London at issue in Kelo v. City of New London 545 U.S. 469 (2005) . . . never happened. The article can be read here. The Volokh Conspiracy has a discussion of the development here. This development, the folks at Volokh say, helps bolster the argument that the government should not use eminent domain power to override multiple individuals' (i.e., the homeowners in the razed area) decisions about land use in favor of private redevelopment, since the government is prone to capture by large, well organized, monied corporate interests (i.e. Pfizer, which is backing out of its plans for a major research campus in the razed area).

I would posit that this rationale is not as vital, however, when it comes to how we think about "takings" via environmental regulation. In a case like Kelo, the private interest is quite powerful, and one would not suspect a troubling collective action problem on the part of the landowners. But when the government exercises its power in favor of environmental values, the concern about capture is more feeble: no matter how some property rights advocates may kvell about the power of the environmental lobby, corporate and money interests are more powerful, especially at the local level. And the likelihood of a troubling collective action problem is higher, since we can expect individual landowners to discount environmental values, which are all too often (still) externalized.

Frankly, I never understood Kelo. The colossal waste of a lovely neighborhood is unfortunate, but at least this latest development will stand as a cautionary tale for local authorities tempted to try something like this again, or for those state legislatures that have not yet passed laws forbidding the use of eminent domain powers signed off on in the case.

No New Environmental Appellate Decisions Today

Coal State Senators Push for Bigger Share of (Free) GHG Permits

Even though the Senate Climate Bill is currently more theoretical than real, a hypothetical bill that lies somewhere between Kerry-Boxer, Kerry-Graham-Lieberman, and whatever various Senate Committees might cook up, Senators in states that are heavily dependent on coal for power have already begun angling for a larger share of whatever free GHG emissions credits may be issued in the bill. In a letter issued yesterday, Senators Harkin (D, IA), Franken (D, MN), Dorgan (D, ND), Kohl (D, WI), Feingold (D, WI), Conrad (D, ND), Bennet (D, CO), Klobuchar (D, MN), Udall (D, CO), Byrd (D, WV), Levin (D, MI), Stabenow (D, MI), and Brown (D, OH) asked for a more "equitable" distribution of GHG emissions permits to help power companies that are more dependent on coal:

The House [Waxman-Markey] bill falls short of . . . equitable distribution . . . with its formula for allocating allowances to local distribution companies based 50 percent on emissions and 50 percent on sales. Unfortunately, the Senate bill currently under consideration includes the same 50/50 allocation provision. Under the proposed 50/50 formula, utilities that are more coal dependent will need to purchase even more allowances than they would have if all allowances were allocated based on emissions, and those higher costs will be passed on to their customers. Meanwhile, many utilities with relatively lesser emissions will receive sufficient allowances to completely cover their initial requirements. Thus, their customers will experience no price increases resulting from the legislation.

We believe it is essential that we strive to formulate legislation that equitably distributes transition assistance across individuals, as well as states and regions and economic sectors. We urge you to ensure that emission allowances allocated to the electricity sector – and thus, electricity consumers -- be fully based on emissions as the appropriate and equitable way to provide transition assistance in a greenhouse gas-regulated economy.

The full letter can be read here.

Given that these are 14 Democrats, and the Senate leadership is going to need every vote it can get to pass any climate bill, we can be assured that the distribution will be shifted as they ask. But you are right if this makes you uncomfortable. The coal-dependent power companies these Senators are defending have been warned for years by groups challenging their decisions to build new coal-fired power plants that the cost of coal power was bound to go up. These groups have consistently included in their comments before state utility commissions, state departments of environmental protection and federal authorities in charge of signing off on the plants the idea that the power companies really should be considering moves to diversify their power portfolio to wind, solar and energy efficiency--suggestions that the power companies have almost uniformly resisted (despite what their web sites often say about renewable energy and energy efficiency). So it is pretty disingenuous of them to act sad and helpless now that they are finally facing the prospect of paying up.

It is also disingenuous for the power companies, and the Senators from states in which they are powerful, to act as if their primary concern are their customers, when the lion's share of the customer rate increases they ask for (and almost always get from state utility commissions) are for building new power plants that are guaranteed to make the power companies money, but that the customers don't necessarily need. (Rate increases for energy efficiency improvements, though often the subject of much teeth gnashing by Republican state legislators all of a sudden concerned with rate payers, too, are generally tiny--especially in light of how much power they free up on the grid.) I may even be justified in saying that this is galling, in light of the sort of things that power companies expect customers to pay for, like $15,000 dinners and corporate spa retreats, as this article from the Colorado Independent discusses.

At any rate, Reuters reports on the letter here, the Hill here, and the Wall Street Journal here.

More Reaction to Forest Service Denial of Crested Butte Ski Area Expansion

More news outlets in Colorado and environs are reacting to the Forest Service's decision (discussed in this post from Monday) to turn down Crested Butte Ski Area's application for a "special use" permit to expand ski runs and lifts onto Snodgrass Mountain, in the middle of National Forest land.

The Watch out of Telluride is reporting how pleased local environmentalists are, in an article you can read here. Notably, it reports that Rocky (natch) Smith, Forest Watch Program Director for Colorado Wild "said that only once during his 25-year career reviewing Forest Service projects (including the Telluride Ski and Golf Company’s expansion into Prospect Basin that he opposed) has he ever seen the agency turn down a request to expand a ski area or open a new one." So a shift from not only the Bush Administration, but the Clinton, Bush I, and Reagan administrations as well.

Meanwhile, the Gunnison Times reports here that the owners of the ski area found the Forest Service's decision to be "on the verge of appalling" and are planning on fighting the decision in court, if necessary. If it gets that far, it will be interesting to hear what the district court and perhaps ultimately the Tenth Circuit say it takes for a special use permit decision--which has a lot of discretion written into it by law--to withstand review. The ski area owners really seem to feel that they are entitled to NEPA review. The question is whether this is based on tradition, rather than anything legal.

Groups Sue to Save West Virginia Flying Squirrel

Today, the Friends of Blackwater, Wilderness Society, Center for Biological Diversity, Southern Appalachian Forest Coalition, and Wild South filed suit in the U.S. District Court for the District of Columbia against the Department of Interior for taking the West Virginia Northern Flying Squirrel off the Endangered Species List. (You can check out the flying squirrel's Wikipedia entry here--it looks like an adorable Super Squirrel!!) The delisting took place in August 2008 under the Bush Administration, and was decried by environmentalists as part of the Administration's attempt to "gut" the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq. (The CBD's contemporaneous press release on the action can be viewed here, a more balanced discussion on the decision from ESAblawg here, and the delisting decision itself here. The decision was justified by the fact that the population had stayed stable for twenty years, and "persisted" in certain areas of its habitat, despite its scarcity--not that it had recovered.)

Today's complaint, which can be downloaded here, alleges that the Fish and Wildlife Service (FWS) ignored the criteria of its own 1990 recovery plan for the squirrel, see 16 U.S.C. § 1533 (requiring FWS to implement Recovery Plans), in its decision to delist. The complaint further charges that FWS failed to look at all the available science on the condition of the squirrel and its habitat in making its decision, something it was also required to do in any delisting decision by 16 U.S.C. § 1533. In fact, the complaint points out, FWS asserted in its decision that it was fine to delist a species "without all criteria [of its Recovery Plan] being met." See 73 Fed. Reg. 50226 (Aug. 28, 2008). The action, the complaint alleges, is therefore a violation of both the terms of the ESA and the APA, insofar as FWS acted in an arbitrary and capricious manner in violation of APA § 706.

The group's full press release can be viewed here.

[Update: The Courthouse News has a good article on the case, here.]

No New Environmental Appellate Decisions Today

More Feedback on Chesapeake Bay Cleanup Plan

Since the federal government issued a draft of its comprehensive plan to clean up the Chesapeake Bay last week, local environmentalists have begun to react. According to this article in the Maryland Daily Record, the Chesapeake Bay Foundation is concerned that the plan lacks details. In blog post on its web site, CBF calls the plan "disappointing because it lacks specific goals, deadlines, programs and strategies."

Meanwhile, Environment Maryland is distressed that it leaves too much up to the states, as you can read in their press release, here. The Capital, out of Annapolis, reports on the "wiggle room" left in the plan for the states to try it their way first, here.

On the other side of the issue, the Maryland government is concerned that the plan will unfairly crack down on Maryland poultry farmers for runoff from chicken waste, as the Baltimore Sun reported here. (They may be justified in their concerns that poultry farmers in their state will face tougher regulations. But ultimately, compliance shouldn't impose a huge financial burden, as I mentioned here. And if one Illinois farmer and attorney is to be believed, the EPA is out to get concentrated animal feedlot operations (CAFOs, aka factory farms) anyway, as you can read in his article about how "EPA is targeting CAFOs!" across the country, complete with exclamation points, here!).

The Baltimore Sun, meanwhile, thinks that the concern from both sides is a sign that the plan just may work, as you can read here.

Just in Case You Were Still Hoping

The Senate Climate bill won't go anywhere in the next six weeks, WSJ confirms.

The Wall Street Journal reported yesterday, with plenty of quotes to back up the story, that the Senate Climate Bill won't be going anywhere before next year. Senator Baucus (D, MT), who chairs the Senate Finance Committee (and was a no vote against Kerry-Boxer on the Environment and Public Works Committee (EPW)) doesn't seem to be in a hurry to do anything. The article also reports that "Sen. Debbie Stabenow (D., Mich.), who is leading an effort by moderate, heartland Democrats to protect manufacturing and agriculture industries, said committees were no longer under any timetables to produce legislation."

Of course, Harry Reid (D, NV) promised five weeks of analysis of any proposed bill, as was discussed in this earlier post. And Senators Kerry, Graham and Lieberman are negotiating their own bill behind closed doors. And though it passed out of EPW, Kerry-Boxer is not winning any popularity contests in the Senate right now. This we knew before the EPA sent its endangerment finding on GHGs to the White House last Friday. But I guess this confirms that the move was not a sufficient shock to the system to jolt the Senate into action.

Analysis of Impact of New Fourth Circuit Appointee

Greenwire ran an excellent short piece yesterday on the potential impact on environmental law of the confirmation of Judge Andre Davis to the U.S. Court of Appeals for the Fourth Circuit. The article makes four essential points:

• Judge Davis's appointment means that Democratic appointees now comprise a majority of the court.
• The Fourth Circuit has been making important rulings on hot-button environmental issues, such as the permissibility of valley-fills during mountaintop removal mining (MTR).
• The Fourth Circuit recently ruled in a case, U.S. v. Gould, that could have a major impact on the interpretation of the scope of Congress's Commerce Clause powers; how that scope is interpreted can be critical in many environmental law cases.
• Cases that have already been considered by a three-judge panel of the court may be subject to en banc review--a process that will now have Democratic appointees as the majority of decision makers.

It does caution, however, that "[a]s a district judge, Davis once sat on the board of the Foundation for Research on Economics and the Environment, an organization funded by companies such as Texaco, Exxon Mobil Corp. and General Motors Co. that opposes environmental regulation." The full article can be read here.

I would add that the Fourth Circuit has made important rulings on the Commerce Clause prior to this year, in cases that went up to the Supremes and were used to impose curbs on the limits of Congress's power: United States v. Lopez, 514 U.S. 549 (1995), and U.S. v. Morrison, 487 U.S. 654 (1998). Whether the Roberts Court will be eager to take on the bounds of the Commerce Clause in quite the same way that the Rehnquist Court was remains to be seen, however.

Brown Pelican Off Endangered Species List

The U.S. Fish and Wildlife Service announced today that the brown pelican, pelicanus occidentalus, and the state bird of Louisiana, is no longer considered endangered for the purposes of the Endangered Species Act. It has been listed under the Endangered Species Act (ESA) and its precursor since 1970, one of the first bird species recognized as being imperiled by the pesticide DDT.

DDT, an insecticide used to kill mosquitos, is especially dangerous to animals high up the food chain. It is very persistent, and so it sticks around and accumulates in larger and larger quantities as flies are eaten by fish, are eaten by larger fish etc.. This meant that birds such as pelicans, which rely on large amounts of fish, and lived in aquatic areas targeted for mosquito spraying, were exposed to a large amount of the insecticide. Populations of birds such as the brown pelican, bald eagle, and peregrine falcon plummeted, as DDT caused the shells of their eggs to become very thin, limiting their ability to successfully reproduce.

Use of the pesticide was banned in the U.S. in 1972, and worldwide in 2004 under the Stockholm Convention on Persistent Organic Pollutants. FWS credits the U.S. ban, along with extensive efforts by Louisiana and Florida to restore coastal habitat, for the recovery of the brown pelican. (The brown pelican, and a nefarious plot to sacrifice its habitat to drill oil, was the inspiration for John Grisham's The Pelican Brief.)

The FWS press release can be viewed here, and their fact sheet on the brown pelican here. A story on the announcement in the New Orleans Times Picayune (which includes some lovely pictures) can be read here. In a joint press release, Environmental Defense, National Wildlife Federation, and Audubon are all cheering the announcement, but call for continued commitment to coastal habitat and wetlands restoration. (No word yet from ESAblawg.)

No New Environmental Appellate Decisions Today

Speaking of Appropriations Riders. . .

Grist mulls over the possibility that Congress might use an appropriations rider to kill EPA authority to regulate GHGs under the mobile source and BACT provisions of the Clean Air Act, in response to Monday's revelation that EPA's endangerment finding had been sent to the White House. You can read the piece here.

[Proviso: I disagree with many of the Grist piece's characterizations of the Mass v. EPA decision; it is not quite as slam-dunk in "requiring" GHG regulation under the CAA as the piece makes it out to be.]

It is certainly true that even Democrats have been making a lot of noise about taking away EPA's Clean Air Act Authority over GHGs as a condition of creating a new climate bill. (You can see this in questioning of Lisa Jackson by the Senate Environment and Public Works committee a few weeks ago, detailed in this post.) But unilaterally getting rid of EPA CAA authority over GHGs without passing a climate bill would be pretty shocking. And I for one believe (hope?) that the White House knows what its doing, and that Congress won't be able to kill EPA authority through an appropriations rider. This can be seen in the way that the White House and EPA have broken the endangerment finding process into digestible bits--making the finding, for instance, but not creating the concomitant regulations of vehicle GHG emissions--and has been feeding those bits slowly to Congress at strategic moments--just before Kerry-Boxer was introduced, just before Ban Ki-moon's visit--to keep it moving along. (For a good overview of how this has been trucking along since last spring, see the "Climate Change" section of Ohio Environmental Law Blog, here.)

A Little History Lesson

Elizabeth Garrett at USC Law Revisits TVA v. Hill.

When discussing yesterday's Ninth Circuit decision in National Parks Conservation Association v. BMA, I noted that, although the project at issue (a landfill adjacent to Joshua Tree National Park) could technically go forward after BLM goes back and complies with the panel's rulings on its NEPA evaluation, approval delayed is often approval denied.

The real nuclear bomb in environmentalists' arsenal is, of course, the Endangered Species Act, which absolutely forbids action that would constitute a "take" of listed species. (A substantive road block, rather than the procedural road block NEPA throws up.) The mother of all ESA cases, paving the way for decades of ESA-based attempts to litigate controversial projects to a halt is TVA v. Hill, 437 U.S. 153 (1978), in which the Tellico Dam was almost stopped by the Endangered Species Act for the sake of the infamous endangered snail darter.

Now Elizabeth Garrett, a scholar of legislative process at USC Law (and a former University of Chicago Law professor) is putting out a book on the subsequent legislative history of the controversy, in which Congress used appropriations legislation to overrule the Court. A preview of Professor Garrett's book, The Story of TVA v. Hill, Congress has the Last Word, can be read here, and a post on the book at Legal History Blog, here.

The book should be instructive, in light of the fact that Congress's tactic of using lines inserted into appropriations bills is alive and well. Far more recently, for example, Senator Domenici of New Mexico used an appropriations bill to override a ruling by the U.S. District Court for the District of New Mexico ordering the Army Corps of Engineers to release water set aside for farmers in the Rio Grande watershed back into the river to protect the endangered silvery minnow. You can read an article on the controversy, circa 2003, here.

A Modicum of Activity on Senate Climate Bill

Yesterday, Senators from various sides of the climate debate had a few opportunities to voice their positions on an eventual bill. As the Washington Independent reported, Senator Baucus (seen as a key indicator of moderate, coal-state Democratic sentiment on a climate bill) opened a Senate Finance Committee Hearing yesterday on the jobs impact of potential climate legislation with the following statement:

Today, we will consider whether climate legislation will create jobs in the energy sector. We’ll examine
further this Committee’s role in climate legislation. And we’ll discuss what we can do both to create
jobs and to ease the transition to an economy that accounts for the cost of carbon dioxide. I am committed to passing meaningful, balanced climate-change legislation.

I am committed to legislation that will protect our land and those whose livelihood depends on it. I want our children and grandchildren to be able to enjoy the outdoors the way that we can today. So I’m going to work to pass climate-change legislation that is both meaningful and that can muster enough votes to become law.

Today we’ll hear predictions — some optimistic, some otherwise — about the effects that climate legislation will have on American jobs and the American economy. We need to consider these predictions. But we also need to consider the consequences of failing to act. We can already see some of these consequences in my home state of Montana. We can see the consequences in forests near my hometown of Helena, destroyed by pine beetles that thrive in warmer temperatures. We can see the consequences in sustained drought and more frequent wildfires. And we can see the consequences in decreased snowpack and lower stream flows, reducing water for irrigated agriculture and starving our blue‐ribbon trout streams of cold water.

These are serious consequences. And I believe that we can mitigate their effects in a way that does not
harm the economy. . . . [W]e should recognize that in the case of acid rain [provisions included in the 1990 Clean Air Act Amendments, which Baucus helped author], the negative consequences were far less than projected. We should keep this in mind when similar claims are made about the effects of legislation to address climate change.

So although Senator Baucus voted against the Kerry-Boxer bill in committee, and was seen as a doubting voice, he--at least at first blush--seems to be somewhat to the left of, say, Senator Graham, who is working with Kerry and Lieberman to come up with a version of the climate bill that endorses nuclear, "clean coal," and more offshore drilling. Senator Baucus's full statement can be viewed here. Archived footage of the hearing can be viewed here.

Meanwhile, as several outlets are reporting, U.N. Secretary General Ban Ki-moon met with members of the Senate Foreign Relations Committee to urge them to push forward with climate change legislation in advance of next month's negotiations in Copenhagen. McClatchy reports the story here, and the Wall Street Journal here. Senator Lieberman (I, CT) told Secretary Ban that he was confident that he and Senator Kerry ahd come up with the framework that would eventually become the Senate climate bill, as Bloomberg reports here. Senator Richard Lugar (R, IN) begged to differ, telling Secretary Ban that "I don't see any climate bill on the table right now that I can support," and that "[w]e really have to start from scratch again." The Washington Post article detailing this exchange can be read here.

Ninth Circuit Affirms Reversal of BLM Decision Allowing Landfill Next to Joshua Tree

In National Parks Conservation Association v. BLM, the Ninth Circuit yesterday affirmed a district court ruling overturning a Bureau of Land Management (BLM) decision allowing a massive landfill serving Los Angeles to be built on abandoned mining sites adjacent to Joshua Tree National Park. The NPCA press release can be read here, and the full opinion here.

The National Parks Conservation Association (NPCA) and local citizens fought the project at the administrative level and in federal court, out of concern for the impact it would have on the local ecosystem. They urge in this fact sheet on the case that the landfill "would severely disrupt the surrounding desert ecosystem by subsidizing and inflating the population of predators, such as ravens and coyotes, which in turn would reduce numbers of desert tortoise, reptiles, songbirds, and other wildlife. In addition, light, air, and noise pollution, other impacts to wildlife, and the eventual contamination of groundwater would permanently alter Joshua Tree and the adjacent Chuckwalla Valley."

The group challenged BLM's original decision to allow the landfill (and a land exchange that would have enabled it to happen) under the Federal Land and Policy Management Act (FLPMA) and NEPA. Two NEPA claims survived and won the day before the Ninth Circuit: First, that BLM had, in its NEPA alternatives analysis, delineated the purpose of the project too narrowly--so narrowly that the only alternative method of achieving that purpose was to build a landfill. Slip. Op. at 15124. The panel held that one of the main objectives of the NEPA process--fully evaluating all feasible alternatives to the proposed project--was thwarted by a conception of the purpose so narrow that all alternatives that failed to meet "specific private objectives" were excluded. This, they affirmed, invalidated the resulting environmental impact statement (EIS).

Second, the panel held that BLM had failed to analyze the impact of "eutrophication" (introduction of extra nutrients to the landscape) in a manner sufficient to allow the conclusion that decision makers and the public were fully informed on the issue. BLM apparently tried the "its in there somewhere" defense. The Ninth Circuit held, in essence, that that was insufficient, since even an informed reader would have a hard time finding the discussion, and would have to hunt through the whole EIS, clip several sections, and paste them all together to get a decent picture of the issue. This, they said, is not a "reasonably thorough" discussion of the issue sufficient to meet NEPA's process requirements. Slip. Op. at 15127.

The project now goes back to BLM for further review. It is technically possible that it could still be approved and ultimately survive judicial scrutiny. After all, NEPA mandates process, not outcome, and the court's rulings on the substantively significant FLPMA claims were more favorable to the Bureau (meaning it would be hard to win a legal argument that BLM failed to comply with FLPMA's requirements). But in a NEPA case, approval delayed is approval denied, and NPCA is claiming victory. Presumably, the plaintiffs are hoping that the prospect of further extensive reviews will cause the investors and the Los Angeles to pack up and ship their garbage elsewhere.

GHG Endangerment Finding Sent to White House

Apparently, EPA Administrator Lisa Jackson told Reuters today that she had sent the final version of EPA's endangerment finding for greenhouse gases to the White House on Friday. The Reuters article can be read here. (The proposed version of the finding, released last April, can be read here.)

Other news outlets, including the Wall Street Journal, are reporting the story. But the current version of the finding and the accompanying letter are not yet available on the EPA or White House web sites.

The endangerment finding was made under Section 202 of the Clean Air Act, part of its mobile source (vehicle) provisions, and is the ultimate result of the Supreme Court's 2007 decision in Massachusetts v. EPA. This pertains only to mobile sources, and, by its terms (as proposed in April) will not immediately be followed by regulations governing vehicle emissions of GHGs.

That said, a final endangerment finding will give environmentalists a strong legal case that the EPA must now issue regulations governing vehicle emissions of GHGs. EPA has also signaled that it would have to make a similar endangerment finding and issue regulations for emissions of GHGs from stationary sources, including power plants. Some (though not all) in the environmental community are eager to see EPA action via the PSD provisions of the Act, though industry supporters have warned that such a finding for stationary sources would virtually shut down the economy.

If EPA issues regulations governing vehicle emissions of GHGs, environmental litigators will be able to make a slam-dunk argument that GHG's are regulated by the Clean Air Act, and thus subject to the Act's "best available control technology" (BACT) provisions. (This is an argument they have been advancing for some time in their battle against coal-fired power plants, but is weakened by the fact that no actual regulations of GHGs have been issued under the Act. Three weeks ago, the EPA's Environmental Appeals Board (EAB) issued an order, In the Matter of BP Products North America (EAB, October 16, 2009) in which it explained that "at this time EPA continues to construe" BACT to cover only those pollutants "subject to either a provision in the Clean Air Act or a regulation adopted by EPA under the Clean Air Act that requires actual control of emissions of that pollutant.")

The White House has 90 days to act, but Administrator Jackson told Reuters that she expects an expedited review. This move will put additional pressure on the Senate to continue to move forward with climate change legislation, and may also help show the world, in advance of next month's climate change negotiations in Copenhagen, that the U.S. is moving forward to regulate greenhouse gases.

More information will be posted as it becomes available.

Update: The Washington Post is reporting the story now, and confirms that the finding has not been released publicly. They obtained a statement from the National Association of Manufacturers that they are concerned that EPA is moving forward before Congress has a chance to pass its own bill (confirming that this may well be designed to place pressure on Congress, since you can be assured that NAM is calling on its connections in the Senate right now.) And they obtained a statement from environmentalists that they think that the Administration is doing this to avoid going to Copenhagen "empty handed." The full article, which reflects some great last-minute reporting by Juliet Eilperin, can be read here.

The Denver Science News Examiner is reporting the story here (and its being reprinted in the Washington D.C. Examiner, so being read for free by D.C. Metro commuters on their way to work this morning.) And BNET is reporting the story, describing the move as "Climate Bill Stimulus."

Forest Service Blocks Ski Area Expansion onto Public Lands

Forest supervisor says expansion would be "against public interest."

In a letter dated November 5, 2009, the Forest Supervisor for the Grand Mesa, Uncompaghre and Gunnison National Forests rejected an application by the Crested Butte Ski Resort for a special use permit to expand onto national forest land on nearby Snodgrass Mountain. The resort owners had sought the expansion in part to develop more beginner and intermediate ski runs to broaden their appeal. In a decision that shows which way the winds are blowing in the Forest Service, the Forest Supervisor determined that although the plan met the minimum initial screening requirements, the expansion failed second-level review as against the public interest, citing 36 CFR 251.54(e)(5).

The Forest Supervisor made his adverse public-interest finding on the basis that, among other things, the expansion (a) lacked community support, (b) posed too many economic and social costs, (c) would place too much development pressure on the surrounding area, changing its character, (d) was problematic in light of the fact that Snodgrass Mountain is in an Inventoried Roadless Area (IRA), (e) would impinge on lynx habitat, and (f) would require an extensive and costly NEPA process for which there was insufficient justification in light of all the other concerns.

The Forest Supervisor's citation of the fact that the proposed expansion is in a roadless area is particularly interesting in light of the fact that the Roadless Rule's fate is not yet decided (as I explained in this post, last week)--and in light of the fact that the Obama Administration has recently filed briefs on behalf of the Roadless Rule, reversing eight years of Bush Administration litigation strategy. Obviously, this Forest Supervisor has gotten the memo. He wrote:

Several Federal Circuit Courts are currently considering the future management of IRAs. A final decision on how ski areas can develop ski facilities in IRAs may be several years away. It is very reasonable to expect; however, that any decision to develop Snodgrass Mountain will be challenged based upon consistency with both the intent and ecological values of roadless areas.

His analysis of community support for the project was also interesting. The project has engendered significant opposition. (Friends of Snodgrass Mountain, which was formed to fight the project, has an only-in-Colorado slogan: "It's Not Light. It's Not Intermediate. And It Won't Work!"). But opposition is not unanimous. Here, the Forest Supervisor cited the lack of unanimous support as a reason that the project is not in the public interest, whereas one might expect the Forest Service in prior administrations to cite the lack of unanimous opposition as a basis for moving ahead. See Nov. 5, 2009 Letter at p. 2 ("Based on what I have heard and read, I am convinced that the community is deeply divided over the proposed development of Snodgrass Mountain."). Almost any project that would require NEPA review could be said to "deeply divide" local communities--there are a lot of environmental litigators who would love to see this cited as a reason not to perform NEPA review, or to choose a no-build alternative to a proposed project. (Especially since project proponents so often form pro-development citizens groups that would not have arisen spontaneously.)

The owners of the ski resort released a press statement today expressing their disappointment in the decision. They said they were "blindsided" by the decision, and had thought, based on earlier interactions with the Forest Service, that everything was going well for them. They also complain that many other ski areas in Colorado have gotten special use permits for similar expansions in the past, and expected that they would be able to get one as well. The release ends with positive statements about what the expansion "will" provide to the resort and the community, perhaps indicating the owners' intent to appeal the Forest Service's decision.

If they do appeal, they will have to go to federal court, as the letter specifies that the decision is not subject to administrative review.

Press coverage of the development can be read in the Denver Post, here.

Coalition Sues Park Service and Forest Service to Stop Bison Kills

A group of Native American and environmental groups filed suit in the U.S. District Court for the District of Montana today to prevent the National Park Service and the Forest Service from participating in state roundups of wild bison in Yellowstone that state officials suspect of being infected with brucellosis. The groups' press release can be viewed here.

Yellowstone is home to a herd of 3000 bison. (Although bison are no longer endangered, there are still only about 150,000 in North America). According to an AP story on the suit, "[d]uring severe winters and when bison numbers are high, thousands of the animals try to migrate to lower elevations outside Yellowstone in search of grass for grazing." Under a 2000 agreement between Montana and the federal government, bison who are in danger of coming in contact with cattle are rounded up and tested for brucellosis, and those who test positive (about 50%) are slaughtered. According to this article from Yellowstone Insider, this was done for the sake of Montana's beef industry, so the cattle could be certified as brucellosis free. A total of 3,000 have been slaughtered over the course of the decade, including over 1,400 in spring 2008.

Yellowstone is also home to a much larger elk population, but officials have been focusing all their energies on the bison based on arguments that the incidence of disease is higher in bison and elk, and because elk are more disperse. The Government Accountability Office, in a highly critical report released last year, criticizes the practice:

This difference in management remains even though there have been multiple suspected elk-to-cattle transmissions in recent years in Idaho and Wyoming, some of which have been detected through DNA testing; the National Research Council reported in 1998 that the risk of transmission from bison to cattle was low; and there have been no known cases of brucellosis transmitted from bison to cattle in a wild, uncontrolled setting.

The whole report can be viewed here.

According to the GAO report, the roundups were supposed to be only temporary, and officials expected to move on to delivering brucellosis vaccine to the bison by the winter of 2002-2003. But, the report says, mismanagement and miscommunication among the agencies and state officials involved has kept them stuck in first gear. The report accuses the federal agencies involved of wasting time and money in an opaque process that depends on trial and error rather than sensible planning.

The group that filed suit today to stop the roundups includes Western Watersheds Project, the Buffalo Field Campaign, Tatanka Oyate (Buffalo Nation), the Gallatin Wildlife Association, the Native Ecosystems Council, and the Yellowstone Buffalo Foundation.

The complaint argues that the Park Service and the Forest Service have arbitrarily and capriciously failed to provide for providing for adequate and appropriate diversity of plant and animal species in their implementation of and actions under the Interagency Bison Management Plan and the Gallatin National Forest Plan. Should DoJ choose to vigorously defend this suit, they would most probably defend much of the complaint on ripeness or other jurisdictional grounds. However, one would hope in light of the GAO report, the poor track record of efforts so far, and the change in administrations that some sort of settlement will be reached relatively quickly.

First Circuit Rules in Favor of Trust for Public Land in Failed Conservation Attempt

In Kunelius v. Town of Stow, handed down today, the First Circuit sided with conservationists who tried and failed to save a large tract of certified "forest land" (as defined by Massachusetts law) in Stow, Massachusetts from development as a "co-housing" facility.

The tale is long and sordid, but essentially comes down to this. Although she knew that the Town had a right of first refusal (ROFR) for any negotiated sale of her property (that she had gotten certified as "forest land" in return for tax concessions), the property owner negotiated a contract with a cohousing developer from Washington state with a liquidated damages provision of $19,000. The Town, spurred by local activists who organized to oppose the sale and development, exercised its ROFR. The Town, in turn, acted in light of a promise by the Trust for Public Land to take assignment of the purchase and payment responsibilities. And the Trust for Public Land relied on possible town funding, fundraising, and some state preservation funds. But once the Trust took assignment, all the monies dried up, due to politics, bad luck, and some self-destructive fundraising techniques. The Trust wanted out, and expected only to pay $19,000. Meanwhile, the property owner no longer had the option of selling to the original developer, who had since found a site elsewhere. So she tried to hold the Trust to the entire purchase price.

The facts of the case made the Trust and its local representative look pretty darn bad. And the panel didn't have much sympathy for it, based on the opinion's tone. The property owner, in essence, made the public policy argument (in the panel's words) that "granting municipalities and nonprofits added leverage to disrupt transactions involving certified land" by allowing them to neatly take the position of the original developer in the assignment, and with it any favorable terms "would tilt the statutory structure too far toward the municipality and would therefore reduce the number of landowners willing to participate in the [forest certification] scheme." Nonetheless, the panel concluded that the liquidated damages provision was binding on the property owner--that she had to settle for the lower amount. This was only fair, they noted, because she knew all along that she was negotiating with the developer in the shadow of the Town's ROFR. Therefore, "[s]he may well have been able to negotiate terms that would have better protected her in the event that less reliable counterparties, such as the Town and the Trust, would become parties to this transaction."

So the Trust for Public Land escapes with little liability but a fair amount of egg on its face. The instant property owner will probably only be able to sell the land to someone willing to commit to keep it just the way it is now. And in the future, property owners participating in Massachusetts state conservation programs would do well to omit any liquidated damages provisions they don't really want to live with.

Press and NGO Roundup on Bay Cleanup Plans

Initial newspaper articles are coming out now on today's announcement of a draft federal plan for cleaning up the Chesapeake Bay (which I described in this post immediately below.)

The Washington Post reports that "EPA plans to get tough on states in bay cleanup effort," highlighting the mandatory nature of the WIPs, and the measures EPA intends to use against states that fail to meet goals. The Baltimore Sun reports that "Bay cleanup calls for expanded federal regulation," noting that EPA will be drawing up new rules about runoff from CAFOs and urban and suburban stormwater management, but has promised to "shelve bay-specific regulations if the states strengthen their own pollution controls enough to restore water quality." The AP has a very brief story here.

NRDC, meanwhile, lauds the plan, calling it "sensible and overdue - finally providing the federal leadership we need, with funding to back it up, to clean up this national treasure."

Federal Plan for Cleaning up Chesapeake Announced

Pursuant to Executive Order 13508 (May, 12 2009), (the Chesapeake Bay Protection and Restoration Executive Order), a committee of federal officials has released a draft plan for cleaning up the Chesapeake Bay. The EPA, Department of Agriculture (USDA), Department of the Interior (DOI), Department of Commerce (DOC, including NOAA) and Department of Defense (DOD) share responsibility for various parts of the effort. The Executive Order directs them to:

• define tools and actions to restore water quality and describe changes to be made to regulations, programs, and policies to implement these actions (EPA);
• target resources to better protect the Bay and its tributaries, including resources under the Food Security Act of 1985 as amended, the Clean Water Act, and other laws (USDA);
• strengthen storm water management practices at Federal facilities and on Federal lands within the Chesapeake Bay watershed and develop storm water best practices guidance (DOD, EPA);
• assess climate change impacts on the water quality and living resources of the Bay and develop strategy for adapting natural resource programs and public infrastructure to those impacts (DOI, DOC);
• expand public access to waters and open spaces of the Chesapeake Bay and its tributaries from Federal lands and conserve the landscapes and ecosystems of the Chesapeake Bay watershed (DOI);
• strengthen scientific support for decisionmaking to restore the Bay and its watershed, including expanded environmental research and monitoring and observing systems (DOI, DOC); and
• develop coordinated habitat and research activities to protect and restore the Bay's living resources and water quality. (DOI, DOC).

Chesapeake Bay Protection and Restoration Executive Order at Section 202 (lead agencies in parentheticals).

Notable components of the plan include: new EPA efforts to control runoff from Concentrated Animal Feeding Operations (CAFO) (a major source of nitrogen from chicken and other animal waste), as well as urban and suburban runoff; a revitalization of efforts to recover native oyster reefs and establish self-sustaining native oyster reef sanctuaries by 2020; and the establishment of a Chesapeake Conservation Corps made up of ordinary citizens. The EPA efforts will be helped along by $19 million in increased funding from Congress to "support additional regulatory and accountability programs to control urban, suburban and agricultural runoff in the watershed." (You can read a Chesapeake Bay Foundation press release about the funding here.)

Already, Maryland officials have voiced concerns about the potential impact of tightened regulations on the state's poultry industry, as you can read in this Baltimore Sun article. Indeed, any EPA effort to control runoff from major chicken operations will involve new costs, since operators of huge chicken operations, in which chickens are confined by the hundreds or thousands in large barns, simply let the waste drain into ground and surface water, and ultimately into the Bay. (This Frontline segment shows some fairly stark footage of the phenomenon.) In the event, this probably won't be a terribly difficult transition for these farmers to manage, monetarily--though it will take a little work. Chickens raised in more traditional circumstances don't pose the same problem, as their (more disperse) waste is absorbed back into the soil easily and is, indeed, beneficial. And if the chicken CAFO operators sold their guano to fertilizer manufacturers, most of the runoff problem would dissipate.

The Draft Strategy--which will be open to comment for 90 days--can be read here. The USDA press release can be read here. And an earlier post on EPA efforts to work with surrounding states to develop mandatory Watershed Implementation Plans (WIPs) to control runoff into the Bay can be read here.

EPA Moves Quickly on Pesticide Drift

The Environmental Protection Agency (EPA) announced last Wednesday that it had issued new proposed guidance on pesticide labeling to reduce off-target spray and dust drift. The guidance, issued under the Federal Insecticide, Fungicide and Rodenticide Act, (FIFRA), 7 USC §136 et seq, will direct manufacturers how to provide clear guidance to users to cut down on over-spray and drift on labels included on their pesticides. (You can read a brief overview of EPA's authority over the content of pesticide labels here.) The guidance is, however, non-binding. See, e.g., General Electric v. EPA, 290 F.3d 377 (D.C. Cir. 2002) (explaining when guidance is merely hortatory, and when it has the force of law).

At the same time, it announced that it would be seeking comments on a petition to protect children in areas adjacent to farms and other pesticide application sites from pesticide drift.

Earthjustice, which filed a petition on the issue in October (2009!) was quite excited to see EPA move so quickly. In this press release last week, they stated: "This new administration has . . . committed itself to quickly bring this issue before the public -- a welcome move in the right direction. We hope this momentum continues and that on-the-ground safety standards for children advance before another growing season begins." (The original petition can be viewed here.)

FWS Makes Annual Announcement of Candidate Species for ESA

Apparently, though, it hasn't succeeded in actually protecting many of those in the past ten months.

On Friday, the U.S. Fish and Wildlife Service released its Candidate Notice of Review (CNR), an annual list of plants and animals that are considered candidates by the agency for Endangered Species Act (ESA) protection. The press release can be read here, and the list here.

According to FWS, "[c]andidate species [included on the list] are plants and animals for which the Service has enough information on their status and threats to propose them as threatened or endangered, but [for which] developing a proposed listing rule is precluded by higher priority listing actions." Apparently, four species have been removed from the list, five have been added, and eight have had their priority changed since last year.

The author of ESABlawg, a DoJ alumnus, explains the significance of inclusion on the list as follows:

The candidate list is the one significant place where the U.S. Fish and Wildlife Service takes into account priorities when implementing the Endangered Species Act. Under this three-part priority ranking system,

(1) threats to species are considered in magnitude as either “high” or “moderate to low”;
(2) immediacy of threats are categorized as either “imminent” or “nonimminent”; and
(3) three categories are created for taxonomic status: with
(a) species that are the sole members of a genus;
(b) full species (in a genus that has more than one species); and
(c) subspecies, distinct population segments of vertebrate species, and species for which listing is appropriate in a significant portion of their range rather than their entire range.

The result of the ranking system is that FWS assigns each candidate a listing priority number of 1 to 12.

This system has two important limitations. First, as FWS notes, it still results in lumping all the species together on the candidate list. . . . Second, it does not attempt to assign any value to one species over another based on biological characteristics or other traits. In other words, it does not matter whether a species is a plant that is in trial testing as a potential cure for cancer, nor a keystone species representative of an entire ecosystem that also creates habitat for dozens of other species. Either way, the ranking system assigns a 1 to 12 based on the individual status of the species, and all species struggle equally on the candidate list until FWS finds the money (or a court orders FWS) to list the species.

The Center for Biological Diversity--possibly the primary organization pressing for these court orders--notes that "The majority of candidates [on the CNR] are rated as either priority 2 or 3, meaning they are in immediate danger of extinction."

In a press release about the CNR, which also detailed full ESA listing activity, the Center for Biological Diversity noted that the Interior Department has only moved one species, a rare Hawaiian plant, under the umbrella of ESA protection since President Obama took office. CBD is extremely critical of this record, saying:

This review shows that the Obama administration has not substantially improved the dismal record of the Bush administration in providing protection to the nation’s critically endangered wildlife. . . . Protection of only one species in 10 months reflects a failure to enact substantial reforms in the U.S. Fish and Wildlife Service.

(FWS is moving toward listing the flat-tailed horned lizard in 2010, but this was just mandated by the federal district court in Arizona implementing a Ninth Circuit decision won by CBD in July.)

Maybe I'm naive, but I'm inclined to cut the Obama Administration a little slack, since turning around a bureaucratic ship can be quite a slow process. But it would be interesting to know what the process story is: According to the full CBD press release, the Bush Administration averaged 7-8 listings a year, and the Clinton Administration 65.