McClatchy News & E&E News & The Hill – 2018-07-25 18:44:49
California vs. Trump ‘Will Be a Giant Case’
Over Air Rules, Could End Up in Supreme Court
Stuart Leavenworth / McClatchy
WASHINGTON (July 24, 2018) — California and like-minded states are girding for a legal battle with the Trump administration on whether those states have gone too far in controlling greenhouse gases from automobiles, a prospective case that legal scholars say — barring a last-minute settlement — is sure to reach the US Supreme Court.
The Environmental Protection Agency and other federal agencies are expected to announce, as soon as this week, a rollback of national fuel economy standards for vehicles. They could also revoke California’s ability to set its own, tougher, air pollution limits.
If the Trump administration challenges California’s longstanding latitude to set its own emissions rules, it would be wading into untested legal waters, said Deborah Sivas, a law professor and expert on the Clean Air Act at Stanford University.
“It will be a giant case,” Sivas said, adding that multiple states will join California in suing the federal government.
“There’s no question it will be litigated at every turn, and no doubt it’s going to make it to the Supreme Court,” with a new mix of judges, possibly including President Donald Trump’s latest nominee, Brett Kavanaugh, she added.
The upcoming announcement stands to be the first major decision involving Andrew Wheeler, a former coal industry lobbyist and EPA veteran who became the acting EPA chief this month, following the resignation of Scott Pruitt. Citing unnamed sources on Monday, Bloomberg News reported that Wheeler and the While House will seek to revoke California’s regulatory authority over greenhouse gases while also rolling back Obama-era national rules on vehicle fuel efficiency.
On Tuesday, at least one connected lobbyist said the Trump administration may stop short of fully revoking California’s authority to set emissions standards and defer a decision until later.
Jeff Holmstead, a Washington-based lawyer and assistant EPA administrator during the George W. Bush administration, said he has heard the While House will seek public comment on a range of proposals, floating the idea of revoking California’s authority but not formally proposing it.
“They’ll give themselves the option of then revoking the California waiver in the future,” said Holmstead, a partner with the Bracewell law firm in D.C.
A White House spokeswoman did not immediately respond for comment.
California and other states have big stakes in Trump’s decision and subsequent litigation, as do US and foreign automakers. California and the 12 states that have adopted its rule account for about half of the US automobile market. That gives them clout in influencing how the automakers design and market their vehicles, including low-and-zero emission models, such as electric cars.
In 2009, California received a waiver from the EPA, allowing it to set its own limits on greenhouse gases from vehicles, effectively mandating that vehicles sold in California burn less fossil fuel. After the Obama administration bailed out much of the US auto industry immediately after the 2008 recession, it pressured automakers to agree to a 2011 plan to increase fuel efficiency by 2025, to an average of 54.5 miles per gallon.
When Trump came to office, the auto industry lobbied for a rollback in those fuel economy standards. The EPA and National Highway Traffic Safety Administration are expected to announce that rollback as soon as this week, arguing that it will improve public safety by allowing more large vehicles to be sold.
But if California and the 12 other states and the District of Columbia retain their own emission rules, car makers would have to either market two different sets of cars or sell California-compliant cars nationwide. The automakers say the California Air Resources Board rules for vehicle model years 2022-2025 are onerous and impractical, despite a CARB analysis in 2017concluding that the standards are technologically feasible.
Trump Sacrifices National Ocean Monuments
Interior wrote proclamations scuttling ocean sites â€“ emails
Jennifer Yachnin / E&E News & Greenwire
(July 24, 2018) — Senior Interior Department officials prepared last fall to eliminate the Northeast Canyons and Seamounts Marine National Monument — even as they had yet to agree on the public justifications for doing so, according to newly disclosed internal documents.
Interior last week accidentally released thousands of pages of unredacted internal emails in response to Freedom of Information Act requests.
Copies of those emails, provided to E&E News by the Center for Western Priorities, detail Interior’s strategy — including a focus on timber harvesting, mineral rights, and oil and gas extraction — as it reviewed the boundaries of more than two dozen national monuments under an executive order from President Trump.
The documents also disclose internal deliberations over the future of some marine monuments, including reintroducing commercial fishing to some sites and reducing the boundaries of others.
In December, Interior Secretary Ryan Zinke released a public report advising Trump to authorize commercial fishing at three sites: Rose Atoll, Pacific Remote Islands, and Northeast Canyons and Seamounts marine national monuments (Greenwire, Dec. 6, 2017).
“There is no explanation in the Proclamation as to why the objects are threatened by well-regulated commercial fishing,” Zinke wrote, referring to President Obama’s proclamation establishing the 3.14-million-acre Northeast Canyons and Seamounts monument in 2016.
But newly disclosed documents reveal senior Interior officials had drafted presidential proclamations to eliminate the marine monument, which has been the subject of criticism and a federal lawsuit from the fishing industry.
In an Aug. 22 email, Interior official Randy Bowman, who led the monument review process, drafted two proposals: one in which Trump would revoke the Northeast Canyons and Seamounts monument and the other in which he would amend the proclamation to remove restrictions on commercial fishing.
On Sept. 14, Bowman suggested in an email that impacts to the fishing industry were not a major consideration in revoking the monument’s status.
“In my initial draft of this memo, which was (by direction) for revoking the designation rather than just removing the fishing restrictions, I did not even mention impacts to fishermen, as I felt they were so minor in the context of the overall New England fishing industry as to undercut the case for making changes,” Bowman wrote.
“Since we are now focused on fishing, we need to say something about adverse impacts, but the best case is the crab and lobster fishery, and I believe this is all we should address,” he said.
In another September email, Bowman also advised that Interior strike data on commercial fishing in the monument. A deleted sentence states that four vessels in 2014-15 relied on the monument area for more than 25 percent of their annual revenues, while the majority of ships generated less than 5 percent of their revenues from the area.
“This section, while accurate (except for one sentence) seems to me to undercut the case for the commercial fishing closure being harmful. I suggest in the attached deleting most of it for that reason,” Bowman wrote.
Saving Seafood Executive Director Bob Vanasse disputed the idea that data didn’t support the repeal of the commercial fishing ban but said it instead was removed because it could be taken out of context.
“While it is generally accurate, if one looks at the entire fishing industry in the region, to make the statement that only a small number of vessels derive more than 5 percent of their revenue from the Monument area, for those vessels and fisheries that conduct significant portions of their operations in the monument area, the economic harm is significant,” Vanasse said in a statement.
He added in an interview: “The suggestion is that the administration is hiding the facts, and I don’t think that’s the case.”
Other emails released by Interior, and first reported by The Washington Post, show proposed redactions to “predecisional” information that could “reveal [National Monument] review strategy.”
Among the proposed redactions, Interior officials planned to strike four pages of a 25-page analysis on the Grand Staircase-Escalante National Monument in Utah.
Those sections addressed activities that may have occurred if the monument had not been designated by President Clinton in 1996, such as coal extraction and antiquities protections.
“More vandalism would have likely occurred without Monument designation. After designation, research, inventory and educational and interpretive outreach programs increased,” states the report submitted by the Bureau of Land Management’s National Conservation Lands Division Chief Nikki Moore.
“Less archaeological research would have occurred without the Monument Designation. Early GSENM efforts included initiating large, landscape surveys which recorded and documented hundreds of sites.”
The proposed redactions would have also eliminated findings that visitation to the area would not have increased without the monument status.
But Trump ultimately reduced the size of both Grand Staircase-Escalante and Bears Ears national monuments in Utah in December, eliminating protected status for more than 2 million acres of land in the largest rollback of monument lands to date.
Center for Western Priorities spokesman Aaron Weiss asserted the internal emails demonstrate the review of more than two dozen monuments amounts to “a sham.”
“There are two big takeaways from these documents — the first is that they show with absolute clarity that the outcome of the monuments review was preordained,” Weiss said. “Secretary Zinke’s political appointees went out of their way to not just ignore, but hide facts that got in their way.”
Weiss also asserted that unredacted emails suggest Interior may be abusing exceptions for redacting “deliberative process” in documents provided under FOIA.
“The botched redactions call into question the tens of thousands of other pages that have been released by Zinke’s Interior Department,” Weiss said. “These documents show them abusing the ‘deliberative process’ privilege to hide inconvenient facts. Basic facts aren’t deliberative, and they should never be hidden from public documents.”
Interior did not respond to a request for comment.
Trump to End Policy Ordering Developers
To Pay for Damage to Public Lands
Justin Wise / The Hill
(July 24, 2018) — The Trump administration is planning on ending a policy that requires oil drillers, miners and land developers to pay the government for damages its work can have on wildlife and habitats on public land.
Bloomberg News reported that the administration on Tuesday plans to announce that the Interior Department will stop requiring off-site “compensatory mitigation.”
Bloomberg notes that the policy was expanded in the final days of the Obama administration and ordered developers to offset the impacts of their actions on public lands. As part of the policy, developers could offset these impacts by doing things such as funding the restoration and protection of wetlands and other habitats.
The Interior Department said that the change will not have any effect on “compensatory mitigation” at the state level, according to Bloomberg. The department also said that it will continue considering environmental impacts while giving out permits.
“We still in every decision we make say ‘Have we avoided impacts? Have we minimized impacts?’ ” Deputy Interior Secretary David Bernhardt told Bloomberg. “We will still do that but when it comes to doing compensatory mitigation off-site we will say that needs to be voluntary.”
Interior Secretary Ryan Zinke has been a noted critic of the “compensatory mitigation” policy. He’s previously said the policy requires tens of millions of dollars to “buy off” nonprofit groups to move forward with project permits.
“In many quarters, that’s called extortion,” Zinke said at a Chamber of Commerce event in 2017, according to Bloomberg.
The move from the Trump administration comes as it looks to alter other environmental laws.
Last week, the administration proposed changes to the way it enforces the Endangered Species Act (ESA).
EPA Signs Off on Rule Exempting
Farmers from Reporting Emissions
Miranda Green / The Hill
(July 24, 2018) — The Environmental Protection Agency (EPA) announced Tuesday that it is implementing recently passed legislation that exempts farmers from having to report emissions derived from animal waste and other pollutants.
The final rule, signed by EPA Administrator Andrew Wheeler on Monday, codifies the most recent version of the FARM Act, which exempted many farmers from reporting air releases of hazardous substances from animal waste.
Signed into law in March, the act made changes to Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) that the bill supporters said regulated emissions from farms much like it regulated Superfund sites, which they call a far too lofty request.
Lawmakers added the provision to the FARM ACT after a Supreme Court decision in 2008 that struck down an Bush-era EPA rule that tried to exempt farmers from the same reporting requirements.
“EPA is taking action to reflect Congress’s direction in the FARM Act that removed an undue reporting burden on American agriculture,” said Wheeler in a statement. “EPA is committed to providing regulatory clarity and certainty to farmers and ranchers — hardworking Americans invested in conserving the land and environment.”
Sen. Deb Fischer (R-Neb.), a major supporter of the provision in the FARM Act, called the regulatory change a “relief” for farmers.
“Over the years, we’ve seen too many harmful federal regulations make it harder for Nebraska agriculture producers to feed the world,” Fischer said in a statement. “That’s why I worked to pass legislation exempting farmers and ranchers from reporting requirements meant for toxic superfund sites. I thank Acting Administrator Wheeler for signing this final rule to implement the law that will provide our nation’s producers with the relief they deserve.”
Environmentalists argued against the provision, saying that farmers should have to take responsibility for the emissions coming from their livestock and crops. US cattle and their byproducts are a major source of the greenhouse gas methane.
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