Supreme Court Won't Hear Critical Habitat Cases
Cross-posted from Legal Planet.
The Supreme Court on Tuesday denied certiorari on two Endangered Species Act cases, Arizona Cattle Growers Association v. Salazar and Home Builders Association of Northern California v. US Fish and Wildlife Service. The cases were considered together because they raise the same issue: how the economic impacts of critical habitat designation should be calculated. Development and extraction interests hoped the Court would use the cases to force the U.S. to take a broader view of those impacts.
The ESA requires that the Fish and Wildlife Service designate critical habitat when it lists a species as endangered or threatened. The listing decision must be based solely on the species’ biological status. In determining critical habitat, by contrast, FWS must take into economic and other impacts into consideration and may exclude areas from critical habitat if it finds “that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat” unless including the area is necessary to prevent extinction.
FWS has adopted what it calls a “baseline” approach to the required economic analysis. It considers only the incremental costs imposed by critical habitat designation on top of any costs already …
Cross-posted from Legal Planet.
You may remember Judge Martin Feldman from his decisions last summer enjoining enforcement of Interior’s first effort at a deepwater drilling moratorium, and more recently declaring that the Department must pay the legal fees of the plaintiffs in that case because it was in contempt of the injunction order. (For my take on those decisions see here and here.)
No doubt the Department wished it could just slink out of the Gulf and never have to face Judge Feldman again. But all good things come in threes, right? And on Thursday Interior reached three of kind; three big losses in Judge Feldman’s courtroom that is.
This latest ruling orders BOEMRE (the Interior bureau in charge of offshore drilling) to act on five pending applications for permission to drill in the Gulf within 30 days. As I understand the ruling, all of …
Cross-posted from Legal Planet.
Here’s some of what’s going on in the ocean policy world:
- BOEMRE is reviewing the first post-moratorium application to drill an exploratory deepwater well in the Gulf of Mexico. As required by a June Notice to Lessees, Shell’s application to drill 130 miles from shore in 2000 to 2900 feet of water includes a blowout scenario. Shell anticipates that drilling a relief well would take 109 days, during which time 12.3 million barrels of oil could be discharged, more than twice what the Deepwater Horizon dumped into the Gulf. The application includes a brief environmental impact assessment which acknowledges that the Macondo blowout showed that the impacts of a large spill could be worse than previously thought, but offers very little in the way of analysis of potential impacts. Mostly it repeats over and over again that a large …
Cross-posted from Legal Planet.
Conservative media and bloggers are making much of a ruling last week by Judge Martin Feldman of the Eastern District of Louisiana that the Department of Interior was in contempt of his June 2010 order enjoining enforcement of the May moratorium on new deepwater exploratory drilling for oil. The Washington Times, for example, accused the administration of “tempting a constitutional confrontation.” Not so fast. Judge Feldman’s latest decision says more about the contempt of some conservative judges for the law than it does about the administration. Can you say “activist judge”?
Judge Feldman, who was appointed to the federal bench by Ronald Reagan, is a staunch friend of the Gulf energy industry. Until recently, he was also an investor. In 2008, he owned stock in Transocean (the owner of the Deepwater Horizon and other drilling rigs) and several other energy companies. He …
Cross-posted from Legal Planet.
If EPA is afraid of the new Congress, you wouldn’t know it from today’s news. Assistant Administrator Peter Silva issued the Obama administration’s first veto of a Clean Water Act section 404 permit. This veto, which has been working its way through the cumbersome process for more than a year (see here, here, here, and here), is only the 13th in agency history, the second since 1989, and the first to be issued after a permit had been issued. It blocks “valley fills” — the use of streams and tributaries for disposal of the rock and dirt removed in surface coal mining — at Mingo Logan’s Spruce No. 1 Mine in Logan County West Virginia.
The proposed Spruce No. 1 project is enormous:
If fully constructed, the project will disturb approximately 2,278 acres (about 3.5 square miles) and bury …
Cross-posted from Legal Planet.
The White House Council on Environmental Quality has issued the first of three expected final guidance documents for federal agencies implementing the National Environmental Policy Act. This one, which covers the use of categorical exclusions, is an excellent start.
NEPA is the “look before you leap” environmental law. It requires that federal agencies publicly evaluate environmental impacts before taking action. That means preparing an Environmental Impact Statement before taking actions that significantly affect the quality of the human environment, or an Environmental Assessment if it’s not clear whether an EIS is required.
Categorical exclusions minimize needless paperwork by allowing agencies to identify in advance actions that, individually and collectively, do not have significant environmental impacts and therefore do not require either an EA or an EIS. But it’s important that categorical exclusions accurately identify actions that don’t have significant environmental …
Cross-posted from Legal Planet.
The Minerals Management Service within the Department of Interior was responsible for overseeing offshore oil development in federal waters from its creation in 1982 until its demise earlier this year. MMS was always a troubled agency, to put it mildly, dogged by scandals and a revolving door with the industry it regulates. After the Deepwater Horizon incident made its failings obvious, Interior Secretary Ken Salazar reorganized MMS out of existence, promising that the new management structure would “improve the management, oversight, and accountability of activities on the Outer Continental Shelf.”
Salazar replaced MMS with the new Bureau of Ocean Energy Management, Regulation, and Enforcement (an awkward name that produces the even more awkward acronym BOEM or BOEMRE, which I’m told people in the Gulf have already taken to pronouncing as “bummer”). In order to try to reduce perceived conflicts of interest, BOEMRE …
Cross-posted from Legal Planet.
On Monday the White House Council on Environmental Quality issued a report on the NEPA analysis that preceded exploratory drilling at the ill-fated Macondo well in the Gulf of Mexico, together with recommendations for improving NEPA analysis in the future. According to CEQ, the Bureau of Ocean and Energy Management (successor to the disgraced Minerals Management Service) has already agreed to implement the recommendations.
The report offers a detailed look at the chaotic and uncoordinated NEPA procedures that were apparently routine at the old MMS. The major outlines of the story were already well known: MMS did a cursory, over-optimistic oil spill analysis at the 5-year program and lease sale stages, then applied a categorical exemption to applications for exploration plans. Separately from that environmental analysis, BP prepared an oil spill response plan which considered the possibility of a much larger catastrophic spill …
Cross-posted from Legal Planet.
Last year, I noted that the interim report of the Interagency Ocean Task Force appointed by President Obama marked a promising step toward a national ocean policy. Now the Task Force has issued its final recommendations, which the President promptly began implementing.
A national ocean policy has been a long time coming. Back in 2003, the Pew Oceans Commission called for a new “unified national ocean policy based on protecting ecosystem health.” A year later, the U.S. Commission on Ocean Policy echoed many of the Pew Commission’s recommendations. But the Bush administration sat on those recommendations. President Bush did create an executive-branch Committee on Ocean Policy, but failed to give it any substantive mandate.
President Obama has filled that gap. On Monday, he issued an Executive Order (as yet unnumbered) replacing the Committee on Ocean Policy with a National Ocean Council …
Cross-posted from Legal Planet.
As he had promised, Interior Secretary Ken Salazar on Monday issued a new decision memorandum suspending certain deepwater drilling operations.Monday’s decision replaces the moratorium that the federal District Court in New Orleans enjoined on June 22, and which the Fifth Circuit declined to reinstate last week.
As I made clear in my post on the Fifth Circuit decision, I think both the District Court and the Fifth Circuit were wrong on the first moratorium. Even if they were right, however, this new one should pass muster.
The new decision calls a halt to exploratory drilling by rigs using subsurface blow-out preventers (the kind that failed on the Deepwater Horizon) or surface blow-out preventers on floating rigs, and to issuance of new permits for that kind of drilling. Like the first moratorium, it does not restrict production from existing wells. It will …
