Archive for June, 2011

Friends of Animals Don’t Want Deer Shot; Want Deer Eaten by Coyotes

Photo by angies. Some rights reserved.

White-tailed deer density in Pennsylvania’s Valley Forge National Historical Park has increased an estimated 600% in the past two and a half decades, grazing on more than their share of a variety of undergrowth and leaving the forest without the necessary diversity of seedlings and saplings that keeps it healthy.

What to do about the deer?

About five years ago, the National Parks Service (NPS) notified the public of their intent to prepare a deer management plan. Many meetings, public comments, a draft EIS, more meetings, and many more public comments later, NPS published the Final White-tailed Deer Management Plan and Environmental Impact Statement.

Based on the final EIS, NPS prepared a Record of Decision cementing their plan to move forward with Alternative D, as laid out in the final EIS. Alternative D (“Combined Lethal and Nonlethal Actions”) called for a mix of chemical reproductive control and spy-thriller-worthy sharpshooting “by specially trained professionals.” The reproductive control, however, would only be used “when an effective chemical agent [becomes] available on the market.” The alternatives laid out in the EIS were largely based on a study concluding that the reintroduction of predators such as Coyotes has “been shown not to exert effective control on white-tailed deer populations.” Predator reintroduction didn’t even make the cut.

So sharpshooting* it is!

Or…not so fast. Shortly after the Record of Decision was published, animal-friendly Friends of Animals (FOA) filed a complaint in a district court, arguing that “NPS failed to adequately consider the reasonable alternative of increasing the local coyote population,” among other things. The court sided with NPS. FOA followed up with an appeal to the Third Circuit, and on June 20, 2011, the Third Circuit affirmed the decision.

During all this back and forth (minus a short stay after the initial complaint), the National Park Service was moving forward with the lethal part of their plan. According to a deer FAQ on the NPS website, more than 600 deer were “removed” from Valley Forge between November 2010 and March 2011. But the best part? More than 18,000 pounds of venison were donated to food pantries, soup kitchens, and other organizations across Pennsylvania.

 * * *

* Lest you worry that humans be sharpshot, check out this excerpt from the EIS:

Sharpshooting would primarily occur at night (between dusk and dawn) during late fall
and winter months when deer are more visible and few visitors are in the park. In some
restricted areas, sharpshooting may be done during the day if needed, which could
maximize effectiveness and minimize overall time of restrictions. In this case, the areas
would be closed to park visitors. In both cases, qualified federal employees or
contractors would be located in elevated positions (e.g., tree stands) or in clearly marked,
high clearance government vehicles on park-owned roadways or trails as appropriate.

New Developments in Sackett v. EPA Case

Photo by Joel Mann. Some rights reserved.

UPDATE:  Supreme Court Renders Decision in Sackett v. EPA

In the spring of 2007, Chantelle and Michael Sackett began laying dirt and rock as a preliminary step to building a three-story house on their property on idyllic Priest Lake, in Idaho. Priest Lake, which rests snuggly in the Northern portion of the Idaho panhandle, is a federally recognized wetland, and has a burgeoning tourist industry that demands preservation of the flora and fauna of the area.

Personal side note: I have been to Priest Lake, albeit when I was very little. It was breathtaking – one cursory glance at the picture used on its Wikipedia page will confirm as much.

Non-personal, non-pertinent side note: The largest Lake trout ever caught on record in the United States was caught at Priest Lake, and weighed in at over 57 lbs! I can see why this lake is worth protecting – it’s magic!

So, just weeks after the Sacketts began work on their Priest Lake house, they were notified by the EPA that they had violated the Clean Water Act by beginning work on their property, which sits on the federally recognized wetlands, without first obtaining the proper permits. The EPA ordered the Sacketts to cease work immediately and to remove all added dirt, to return the dug-up soil, and to replant the property with vegetation, or face fines of up to $32,500 per day. In addition, the EPA told the Sacketts that they would have to wait three years, to allow for regrowth on the property, before applying for the necessary permits. The Sacketts felt the EPA’s actions to be unjust, and made a formal complaint to the Supreme Court asking for the right to challenge the EPA’s decision in a federal court. In September 2010, the Ninth Circuit Court of Appeals ruled that the Sacketts had no grounds to bring a case against the EPA until federal regulators sought to enforce the threatened fines. The Sacketts were upset – they felt they had no avenue to defend themselves against the government agency. In a youtube video put together by the conservative law firm Pacific Legal Foundation, Chantelle Sackett calls the EPA “ungovernable,” and laments that “what’s right is right, and I get so sick and tired of the government telling us what to do.” Today, however, the Supreme Court announced that it would hear the Sacketts’ argument once their new term begins in October, signaling a new chance for the Sacketts to get their voices heard.

That should bring us up to date. Without speculating on the political beliefs of the Sacketts or drawing up partisan lines, it is clear that this case raises larger questions about the state of the US justice system. With the simultaneous rise of both a “don’t tread on me” attitude and a conservationist awareness in contemporary America, cases such as this one present a grey area – on the one hand, you have property owners who feel they have a right to build on what they own. On the other, you have the EPA defending a territory which clearly has environmental significance, and is federally protected. Do citizens accused by government agencies of violating environmental laws have a right to immediate defense in the federal courts? Whatever the Court’s decision, it’s bound to be an important one.

Update: Read more about the Sackett case and the January 9, 2012, oral hearings here.

Proving Natural Gas Reserves

Photo by todbaker. Some rights reserved.

A piece that ran in the New York Times this weekend covered some juicy leaked industry emails and internal documents that called into question the productivity and profitability of natural gas wells.

One focus of the article was public company forecasts of gas reserves as a metric for a company’s value. Covered by all the rules and regulations that lay the groundwork for registration statements and prospectuses (Regulation S-K, 17 CFR Part 229), any company to whose business operations oil and gas producing activities are material shall not make misleading statements about such reserves.

While the NYT points out that forecasting reserves can be a “tricky science,” at least 17 CFR 229.1202 helps spell out the rules for proper disclosure. If you’re looking for some real-life examples, check out this search on knowledgemosaic’s SEC Filings page. You can see there, for instance, that WPX Energy, Inc is reporting only an estimated 28 billion cubic feet of gas equivalent of proved reserves in the Marcellus Shale, but almost an estimated 3 trillion cubic feet of gas equivalent of proved reserves in the lesser known Piceance Basin.

Are these numbers, as the NYT piece suggests, potentially intentionally overstated? Only time and some tricky science will tell.

Crouching NOA, Hidden EIS: Last Week In Environmental Impact Statements

As discussed a few weeks ago, many of you are familiar with the National Environmental Policy Act (NEPA), which requires federal agencies to prepare detailed reports known as Environmental Impact Statements (EIS). These reports attempt to compel federal agencies to consider the potential environmental impacts of proposed federal actions and any viable alternatives.

Federal agencies are required to prepare EISs in accordance with 40 CFR Part 1502, and to file the EISs with the EPA as specified in 40 CFR 1506.9. Each week the EPA prepares a digest of the preceding week’s filed EISs, which it publishes every Friday in the Federal Register under the title, “Notice of Availability” (NOA).

Last week’s NOA can be found here, but this time  I had trouble locating two of the “available” documents. If you know where to find them, leave a note in the comments!

You can read any available EPA comments on these EISs here.

* * *

EIS No. 20110188, Draft EIS (Volume 1, Volume 2), FHWA, TX, TX–99/Grand Parkway Improvement Project, Segment H and I–1, from United States Highway (US) 59 (N) to Interstate Highway (IH) 10 (E), Transportation Improvement, Right-of-Way Permit, Montgomery, Harris, Liberty and Chambers Counties, TX, Comment Period Ends: 09/21/2011, Contact: Daniel Mott 512–536–5964.

EIS No. 20110189, Draft EIS, USFS, MO, Integrated Non-Native Plant Control Project, Proposes a Forest-Wide Integrated Management Strategy to Control the Spread of Non-Native Invasive Plant Species (NNIP), Mark Twain National Forest in Portions of Barry, Bellinger, Boone, Butler, Callaway, Carter, Christian, Crawford, Dent, Douglas, Howell, Iron, Laclede, Madison, Oregon, Ozark, Phelps, Pulaski, Reynolds, Ripley, Shannon, Ste. Genevieve, St. Francois, Stone, Taney, Texas, Washington, Wayne and Wright Counties, MO, Comment Period Ends: 08/08/2011, Contact: Becky Bryan 573–341–7436.

EIS No. 20110190, Draft EIS, FRA, MS, Tupelo Railroad Relocation Planning and Environmental Study, To Improve Mobility and Safety by Reducing Roadway Congestion, City of Tupelo, MS, Comment Period Ends: 08/08/2011, Contact: John Winkle 202–493–6067.

EIS No. 20110191, Draft EIS, BPA, WA, Mid-Columbia Coho Restoration Program. Proposes to Fund the Construction Operation and Maintenance of the Program to help Mitigate for Anadromous Fish, Okanogan Counties, WA, Comment Period Ends: 08/08/2011, Contact: Stephanie Breeden 503–230–5192.

EIS No. 20110192, Draft EIS, USFS, NC, Uwharrie National Forest, Proposed Land and Resource Management Resource Plan, Implementation, Montgomery, Randolph and Davidson Counties, NC, Comment Period Ends: 09/21/2011, Contact: Ruth Berner 823–257–4862.

EIS No. 20110193, Final EIS, USAF, FL, Eglin Air Force Base (AFB) and Hurlburt Field, Proposes to Implement the Military Housing Privatization Initiative (MHPI), FL, Review Period Ends: 07/25/2011, Contact: Mike Spaits 850–882–2836.

EIS No. 20110194, Draft EIS, USACE, LA, Louisiana Coastal Area Barataria Basin Barrier Shoreline Restoration, To Restore the Barrier Shoreline Ecosystem and Significantly Reduce the Loss of Estuarine and Freshwater Wetlands, Caminada Headland in Lafourche and Jefferson Parishes and Shell Islands in Plaguemines Parish, LA, Comment Period Ends: 08/08/2011, Contact: Dr. William P. Klein, Jr. 504–862–2540.

EIS No. 20110195, Draft EIS, BOP, 00, Criminal Alien Requirement (CAR) 12 Procurement Project, To Award a Contract to House a Population of Approximately 1,750 Federal, Low-Security Adult Male Criminal Alien in a Contractor Owned and Operated Facility, Possible Site Selection: McRae Correctional Facility, McRae, Georgia, Great Plains Correctional Facility, Hinton, Oklahoma and Scott County, Mississippi, Comment Period Ends: 08/08/2011, Contact: Richard A. Cohn 202–514–6470. (Couldn’t for the life of me locate. Any reader tips?)

EIS No. 20110196, Final Supplement, USACE, LA, New Orleans To Venice (NOV), Federal Hurricane Protection Levee. Restoring, Armoring and Accelerating the Completion of the Existing NOV, Plaquemines Parish, LA, Review Period Ends: 07/25/2011, Contact: Christopher Koeppel 601–631–5410

EIS No. 20110197, Final EIS, NRC, AK, Lost Creek In-Situ Uranium Recovery (ISR) Project, Proposal to Construct, Operate, Conduit Aquifer Restoration, and Decommission an In-Situ Recovery (ISR) Uranium Milling Facility, Sweetwater County, WY, Review Period Ends: 07/25/2011, Contact: Alan B. Bjornsen 301–415–1195.

EIS No. 20110198, Final EIS, NHTSA, 00, Medium-and Heavy-Duty Fuel Efficiency Improvement Program, Proposing Coordinated and Harmonized Fuel Consumption and Greenhouse Gas (GHG) Emissions Standards, United States, Review Period Ends: 07/25/2011, Contact: Angel Jackson 202–366–0154.

Amended Notices

EIS No. 20110117, Final EIS, BLM, CA, First Solar Desert Sunlight Solar Farm (DSSF) Project, Proposing To Develop a 550-Megawatt Photovoltaic Solar Project, Also Proposes to Facilitate the Construction and Operation of the Red Bluff Substation, California Desert Conservation Area (CDCA Plan, Riverside County, CA, Contact: Allison Shaffer 760–833–7104 The U.S. Department of Energy, has ADOPTED the U.S. Department of Interior, Bureau of Land Management FEIS #20110117, filed on 04/08/2011. DOE was a Cooperating Agency for the above project. Recirculation of the FEIS is not necessary under 40 CFR 1506.3(c).

Keystone XL Pipeline Takes Another Step Towards Reality

Photo by Carl Chapman. Some rights reserved.

The controversial Keystone XL pipeline project, headed by the company TransCanada, took another step towards Reality today, as the House Energy and Commerce Committee approved (by a measure of 33/13) Republican-backed legislation that would strong arm President Obama into making a decision on the approval of the Keystone XL no later than November 1, 2011. The bill will appear on the House floor for a vote this summer.

First proposed in 2008, the $7 billion Keystone XL pipeline proposal would span 1,600 miles and carry Canadian oil sands from their genesis in northeastern Alberta to oil refineries in Texas, adding to the original Keystone Pipeline which was first proposed in 2005 and which has been under construction since March of 2008. The Keystone XL proposal was first approved by the National Energy Board in March of 2010, and its supporters have touted it as the kind of resource that would drastically reduce US dependence on foreign oil and create, according to HECC chairman Fred Upton (R-MI), “100,000 jobs directly and indirectly.”

However, outcries arose shortly after the project was first approved from the NRDC and from a committee of 50 members of Congress opposed to the project, who in June of 2010 drafted a letter to Secretary of State Hillary Clinton highlighting the pipeline’s potential consequences. A State Department environmental review of the project was submitted in April of this year, a study that served to assure naysayers that the project was environmentally sound, however the EPA this month deemed the study inadequate, and called for a revised report with a more specific approach towards safety measures and oil spill response procedure. Some skeptics have, perhaps rightfully, cited recent leaks in TransCanada’s Keystone line, as evidence that the safety regulations are not up to snuff. In addition, some critics, such as those behind the website Dirty Oil Sands, have cited oil sands as “the most harmful type of oil for the atmosphere,” and have written off the project for its hypothetically humungous GHG emission rates as well as the potential for spills.

And yet, in the face of its opposition, TransCanada remains apparently optimistic, brushing off criticisms from grassroots organizations and governmental figures alike – TransCanada Vice President of U.S. Pipeline Operations  was quoted last week arguing that “the opponents to the project come across as experts on economics, or chemistry or engineering and that’s just not the facts.”

EPA Not Messing Around When It Comes to Asbestos-Related Prison Sentences

Photo by daryl_mitchell. Some rights reserved.

While the EPA is often seen as soft on companies, they may be making up for it by coming down hard on individuals.

Yesterday, the EPA announced that Bobby Joe Knapp, the former owner and operator of the Equitable Building in downtown Des Moines, Iowa, would be spending more than 3 years in prison for his role in the careless removal of asbestos from the building.

By failing to notify the EPA before starting the removal process, as well as using some very shoddy demolition methods (untrained workers, workers not provided with protective equipment, failure to wet asbestos tiles), Knapp was in violation of the Clean Air Act work practice standards for the removal and disposal of asbestos. Failure to follow these procedures can expose building occupants and construction workers to high levels of the material, which can increase the risk of lung cancer.

The case was investigated by the EPA and the Iowa Department of Natural Resources. Minutes from a meeting with the DNR (see page 20) paint a more vivid picture of the events that led up to the DNR referring the Equitable case to the Attorney General, including several visits to the work site and early conversations with Knapp and the building manager.

Knapp was formally charged by a federal grand jury in February of 2010. He pled guilty to the charges a year later, in March 2011, and just yesterday, U.S. District Judge James E. Gritzner sentenced Knapp to 41 months in prison, plus 300 hours of community service and more than $12,000 in fines.

He isn’t the only chap to go to jail for such a crime. On the EPA’s Criminal Enforcement page, they boast that, in FY 2010, “individual criminal defendants were sentenced to a total of 72 years of jail-time.”

It doesn’t feel right, does it?

I don’t want to diminish the seriousness of what Knapp did, nor trivialize the exposure to the building residents, but I might argue that to lavish these heavy prison sentences on an individual hardly sends the broad message one would hope for.

Spotlight-prone corporate executives that violate environmental laws rarely see the inside of a jail cell – their punishments always seem to be variations on a theme: pay up the big bucks. Bucks being one thing of which they have plenty to spare.

Knapp cut corners, endangered the health of a handful of people, and essentially had his life put on hold for three years. Corporate giant BP was found guilty for conduct that resulted in an explosion that killed 15 employees (no, not that explosion – they weren’t held criminally accountable for that), and was fined $50 million dollars in 2007. That comes to a whopping 1% of their total revenue for that fiscal year – hardly a disincentive. Where’s the jail time??

So I hope Knapp, and other building owners, have learned their lesson, and that people are scared straight into treating asbestos with care. But don’t we have bigger fish to fry?

Questionable Victory for the EPA in Supreme Court Ruling

Photo by swanksalot. Some rights reserved.

File under ‘I don’t know how to feel.’ American Electric Power Co., Inc. v. Connecticut, a lawsuit presented on Monday by six states, the city of New York, and several land trusts, was rejected unanimously (8-0) by the US Supreme Court, reversing the decision of the 2nd Circuit. The lawsuit, which was first filed in 2004 under the Bush Administration, contended that Co2 emissions from nearby power plants qualified as a public nuisance under federal common law, and the plaintiffs sought permission to order the defendants to reduce emissions without the involvement or authority of federal regulators and the EPA.

The Court found in favor of the defendants, ruling that the Clean Air Act’s authority to regulate greenhouse gas emissions trumps a state’s federal common law. This is by definition good news for defenders of the EPA, an agency that has had to fight long and hard to retain its right to regulate GHGs. Conversely, you may remember a Spotlight from last month that was shared on this blog, which highlighted a case presented on behalf of future generations against the EPA, a symbolic gesture that suggests that the EPA is not moving quickly enough for some environmentalists in establishing official rules governing GHG emissions.

As the New York Times points out, there may be further reaching implications of this decision, as the court made no ruling one way or the other on whether states could file similar suits under state law rather than federal common law. The Times highlights the upcoming Kivalina v. Exxon Mobil Corp. hearing before the 9th U.S. Circuit of Appeals as one such case.

Check out client alerts from Faegre & Benson, King & Spalding, Akin Gump or Drinker Biddle  to learn more about the American Electric Power Co. lawsuit, or try a search for the case title on Knowledge Mosaic’s Law Firm Memos search page.

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