Energy

Energy Permitting Provisions Associated With New Bill Inflation/Climate But in Separate Legislation

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It’s always interesting to see what people think about regulatory reform for energy compared to our humble forest projects.

But some people are fairly consistent.. according to Center for Western Priorities:

“These changes to the energy permitting process would occur via legislation separate from the Inflation Reduction Act and would not qualify for the Senate budget procedure, making it impossible to approve a simple majority. The new agreement will need 60 votes to be approved and therefore requires Democratic and Republican support in order to pass.

According to a one-page summary, the new legislation would set new two-year maximum limits for environmental reviews for major projects and would expedite the approval process for energy projects by centralizing decision-making within one agency. It would also make it more difficult to challenge energy projects under the National Environmental Policy Act and would give the Department of Energy more authority to approve electric transmission lines.

The additional legislation is likely to face opposition from environmental groups and Democrats like Representative Raúl Grijalva, the chairman of the House Committee on Natural Resources, who said he’s worried that “comprehensive permitting reform” is a euphemism for gutting foundational environmental and public health protections like the National Environmental Policy Act.

 

Yale Forest Forum (Western) Fuel Treatment Residues/Bioenergy Webinars of Interest

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Here’s a link to all of Bioenergy series webinars organized by the Yale Forest Forum. They have links to the recordings and the slides.

I took the slides above from the presentation by Matt Donegan, the Chair of the  of Oregon Governor’s Wildfire Response Council.  This should be of particular interest to Oregonians. If you only have a bit of time/interest, just check out the slides.

Summary:

The Potential Role of Bioenergy in Mitigating Wildfire in the West

Record wildfire seasons continue across the US West, increasingly comprised of unnatural and catastrophic events owing to climate change, excessive fuel accumulation and development within the Wildland Urban Interface (WUI).  The comprehensive costs of these wildfires are staggering, when considering costs of suppression, property and ecosystem degradation, carbon emissions, human health impacts, infrastructure damage including water, and numerous other direct and indirect effects.  To contain these costs, excess fuels must be removed to restore wildfire-resilient landscapes and to protect vulnerable communities.  Fuel treatments, in turn, entail significant costs, potentially combined with carbon emissions if wood waste is left to burn or decompose.  An oft-proposed solution is the development of wood waste markets including biofuels, potentially combined with carbon capture technologies.  To develop biofuels markets at the scale needed to address the growing wildfire problem in the West, a complete system must be designed including economic incentives recognizing multiple public values, and policies to stabilize supply sources and ensure adequate workforce development.

I watched this one, it’s really good and goes into the nitty-gritty of the technologies of interest.

Daniel L. Sanchez – Assistant Professor of Cooperative Extension, University of California-Berkeley
Daniel L. Sanchez studies engineered biomass & bioenergy systems that remove CO2 from the atmosphere. Trained as an engineer and energy systems analyst, Sanchez’s work and engagement spans the academic, nongovernmental, and governmental sectors. As an Assistant Professor of Cooperative Extension, he runs the Carbon Removal Lab, which aims to commercialize sustainable carbon dioxide removal technologies, and supports outreach to policymakers and technologists in California and across the United States

Innovative Wood Products for Carbon-Beneficial Forest Management in California
Natural carbon sinks can help mitigate climate change, but climate risks—like increased wildfire—threaten forests’ capacity to store carbon. California has recently set ambitious forest management goals to reduce these risks. However, management can incur carbon losses because wood residues are often burnt or left to decay. This study applies a systems approach to assess climate change mitigation potential and wildfire outcomes across forest management scenarios and several wood products. We find that innovative use of wood residues supports extensive wildfire hazard reduction and maximizes carbon benefits. Long-lived products that displace carbon-intensive alternatives have the greatest benefits, including wood building products. Our results suggest a low-cost pathway to reduce carbon emissions and support climate adaptation in temperate forests.

I haven’t checked out the others but they are probably good as well.  My pet peeve (as discussed with the organizers) is that western fuel treatment residue bioenergy tends to get ignored in national/Coastal  discussions of bioenergy around the world or chips for European export in the SE, so that’s why I focused on these two.  As always, anyone is welcome to view and write a post or comment about what they think is interesting about them.

The two western webinars are not so much about bioenergy itself, but more about “what the heck are we going to do with all this material?”

The Energy Transition: Let’s Call Folks on “Unnecessary Moralizing”

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A dip into the universe of moral philosophy re: the energy transformation.  (There, Anonymous, I know you like moral philosophy discussions!).  This new opportunity for peace-making and departisanizing of the transition reminded me of this Atlantic piece by an energy scholar named Daniel Yergin. He tells this story:

To appreciate the complexities of the competing demands between climate action and the continued need for energy, consider the story of an award—one that the recipient very much did not want and, indeed, did not bother to pick up.

It began when Innovex Downhole Solutions, a Texas-based company that provides technical services to the oil and gas industry, ordered 400 jackets from North Face with its corporate logo. But the iconic outdoor-clothing company refused to fulfill the order. North Face describes itself as a “politically aware” brand that will not share its logo with companies that are in “tobacco, sex (including gentlemen’s clubs) and pornography.” And as far as North Face is concerned, the oil and gas industry fell into that same category—providing jackets to a company in that industry would go against its values. Such a sale would, it said, be counter to its “goals and commitments surrounding sustainability and environmental protection,” which includes a plan to use increasing amounts of recycled and renewable materials in its garments in future years.

But, as it turns out, North Face’s business depends not only on people who like the outdoors, but also on oil and gas: At least 90 percent of the materials in its jackets are made from petrochemicals derived from oil and natural gas. Moreover, many of its jackets and the materials that go into them are made in countries such as China, Vietnam, and Bangladesh, and then shipped to the United States in vessels that are powered by oil. To muddy matters further, not long before North Face rejected the request, its corporate owner had built a new hangar at a Denver airport for its corporate jets, all of which run on jet fuel. To spotlight the obvious contradiction, the Colorado Oil and Gas Association presented its first ever Customer Appreciation Award to North Face for being “an extraordinary oil and gas customer.” That’s the award North Face spurned.

Northface customers, of course, as well as other outdoor recreation folks,  predominantly use fossil fuels to reach their recreational destinations. So there’s that.

He goes on to add:

The coming energy transition is meant to be totally different. Rather than an energy addition, it is supposed to be an almost complete switch from the energy basis of today’s $86 trillion world economy, which gets 80 percent of its energy from hydrocarbons. In its place is intended to be a net-carbon-free energy system, albeit one with carbon capture, for what could be a $185 trillion economy in 2050. To do that in less than 30 years—and accomplish much of the change in the next nine—is a very tall order.

Here is where the complexities become clear. Beyond outerwear, the degree to which the world depends on oil and gas is often not understood. It’s not just a matter of shifting from gasoline-powered cars to electric ones, which themselves, by the way, are about 20 percent plastic. It’s about shifting away from all the other ways we use plastics and other oil and gas derivatives. Plastics are used in wind towers and solar panels, and oil is necessary to lubricate wind turbines. The casing of your cellphone is plastic, and the frames of your glasses likely are too, as well as many of the tools in a hospital operating room. The air frames of the Boeing 787, Airbus A350, and F-35 Joint Strike Fighter jet are all made out of high-strength, petroleum-derived carbon fiber. The number of passenger planes is expected to double in the next two decades. They are also unlikely to fly on batteries.

Oil products have been crucial for dealing with the pandemic too, from protective gear for emergency staff to the lipids that are part of the Pfizer and Moderna vaccines. Have a headache? Acetaminophen—including such brands as Tylenol and Panadol—is a petroleum-derived product. In other words, oil and natural-gas products are deeply embedded throughout modern life.

And, of course, fire suppression and prescribed fire.

And that leads to an interesting moral question. It seems like only producers, and not consumers are judged morally, at least by North Face. But then does that become a slippery slope? If oil and gas companies are bad, are oil refineries bad? OK, then, propane fuel deliverers? Gas station employees? Where exactly along the production/consumption chain would the moral responsibility start and stop?

Stone-casting (or what we might call, in the spirit of football, “unnecessary moralizing”) has been a facet of human culture perhaps as long as their were humans. Let she who does not use fossil fuels cast the first stone, indeed.

And of course,  similar arguments could be made about moralizing with regard to the forest products industry.  SPI bad, Home Depot/Lowes, not, me not.  And so on.

Federal Renewable Energy MOU

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USPhoto: Joel Zwink

This article looks like an international take on U. S. renewable energy development and has links to the new MOU among five federal departments (including USDA/Forest Service) and the Energy Policy Act of 2020.  I was going to add this to Sharon’s recent post on renewable energy, but I wanted to highlight the planning implications.

This MOU implements the direction in 43 U.S.C. §§ 3001-3005, Pub. L. No. 116-260 (December 27, 2020), hereinafter “Energy Act of 2020.” Pursuant to the Energy Act of 2020, the Secretary established a National Renewable Energy Coordination Office (National RECO) within BLM Headquarters and five RECOs in the western States with responsibility to implement a program to improve Federal permit coordination for eligible “projects.”

It applies to “relevant aspects of Participating Agency coordination related to supporting activities for eligible projects—such as land use planning …,” which for the Forest Service it defines as “a land management plan approved, amended, or revised under section 6 of the FRRRPA (16 U.S.C. §1604).” (Applying this label to NFMA suggests pretty limited FS involvement.)

It requires a report to Congress identifying “outdated land use plans,” and requires BLM (but not the Forest Service) to “identify land use plans that may need to be amended as part of the decision-making process to consider eligible projects…”  But maybe BLM will identify outdated Forest Service plans.

I hope this right hand of our government (a legacy from the prior administration) is talking to the left hand about where it wants to conserve 30% of the land.

Career Feds Gone Wild: BLM and APD Approvals?

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From the Farmington Daily Times- part of a good article outlining the approval process

As I predicted, when Republicans are in power, things some ENGO’s (or perhaps PENGOs, for Partisanly inclined ENGOs) don’t like are blamed on evil Republicans.  And folks are very concerned about impacts to career feds, the innocuous victims of bad political appointees. But when D’s are in power, the identical activities can be blamed on the career feds. These two concepts seem to conflict a bit, but perhaps I’m the only person who notices?  An interesting example is this piece by Jonathan Thompson who runs the “Land Desk”- lots of interesting and valuable articles there, but perhaps not this one.

Stepping back, we at TSW investigated on our own the reason for increased approved APD’s during the Biden Admin (held up by some as “Biden isn’t doing enough.”)

Rebecca Watson had some ideas in this comment here , and here’s what a BLM person from State X told me: “there was a big surge in State X and I think there were a variety of reasons for that including the election results, companies getting pre-positioned for any resultant post pandemic oil price increase and finally, companies catching up on activities that have a big field work component that were impacted by folks minimizing group interactions, working from home, etc..”

What I find interesting about stories I’ve read that mention this is that the increase is used as a talking point to make the case “not doing enough” (a political push toward COP26) and the other side of the story is not being told. So much of what I read is not “news” in the traditional sense of 1) telling what’s happening and 2) trying to understand why (note, this article is not news, but it’s becoming increasingly difficult to tell what is and should be held to those standards).

And even while leasing was paused, the BLM continued to hand out drilling permits at a feverish pace. Since Biden’s inauguration, the agency has issued the following tally of approvals:

  • California: 56 (all by the Bakersfield Field Office)
  • Alaska: 6
  • Colorado: 15 (Royal Gorge, Tres Rios, and White River Field Offices)
  • New Mexico: 1,372 (1,275 in the Carlsbad Field Office, or Permian Basin; 94 in the Farmington Field Office, or San Juan Basin)
  • Utah: 183 (170 in Vernal Field Office with the rest in Moab and Price)
  • Wyoming: 693 (376 in Buffalo Field Office; 198 in Casper Field Office; 74 in the Pinedale Field Office)

That’s a lot of drilling permits, making Trump’s energy dominance look a little flaccid, at best. I had a conversation with a colleague about this phenomenon recently. He argued that the BLM had no choice but to issue the permits, since the oil and gas companies were vested with private property rights when they acquired the leases. Both industry and field office managers make the same argument, parroting the ideology of the Wise Use movement of the 1990s, but it’s mostly bogus. Grazing leases and oil and gas leases are on public land, and they do not confer private property rights to anyone. If that was the case, then why bother with the permitting process? Why not just offer the drilling permits with the lease?

At the same time, it’s not Biden himself, or even Haaland, who is handing out the drilling permits. It’s the field office managers, who tend to operate how they choose, regardless of who’s in the Oval Office.

(My bold) Mr.Thompson thinks the validity of lease sales is “bogus” but having sat through innumerable meetings with Interior Solicitors and USDA OGC on exactly this issue, enthusiatically trying to get the USG out of leases on the Thompson Divide, I’d say.. not. I don’t know if Mr. Thompson believes this about BLM managers, or whether this is another polemical throw-away line.

Why Pick Federal Lands as (the) Climate Target? Examining Potential Environmental Justice Impacts

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In this March 25, 2014 photo, workers keep an eye on well heads during a hydraulic fracturing operation at an Encana Corp. oil well, near Mead, Colo. This is not federal land. (AP Photo/Brennan Linsley)

There are many ways to decrease our country’s carbon footprint.  But for some reason, it seems like federal lands oil and gas leasing has become a symbolic, if not very useful, preferred intervention of some groups (some charitable foundations).  In a recent op-ed in the Denver Post,  Jennifer Rokala of the Center for Western Priorities wrote:

President Biden’s infrastructure plan is a bold vision to move America to a clean energy future–but vision is meaningless without action.

Next month, the president will head to a global climate summit, urging world leaders to cut carbon emissions, while he simultaneously expands oil and gas drilling at home and does nothing to fix a broken leasing system. When the president encourages Congress and the world to act, he has an obligation to lead by example.

Now, as we’ve discussed previously, it seems eminently reasonable to me for the Admin to be leery of being in contempt of court with regard to the leasing process. Is it actually true to say “Biden has expanded oil and gas drilling at home?”.. or is the Admin just following rules, plans, etc. currently in place.. that legally they would need to follow specific procedures to change? So to whom is this particular climate intervention such a big issue? Easiest to get maximum climate benefits (don’t think so)? Some kind of low-hanging political fruit? Least impact to poor communities? And while we think mostly of onshore, not to forget offshore federal is also part of the deal. Some federal oil producing states (Mississippi, Louisiana, as well as onshore New Mexico) are among the poorest US states.

At the same time, this interesting article from another Jennifer, Hernandez of the Breakthrough Institute, touches on impacts of such policies on energy workers who happen to be people of color.

But unaffordable utility bills are only half the story. California climate policies also require the elimination of hundreds of thousands of conventional energy jobs, and will adversely affect millions of other jobs in energy-dependent and related industries. These sectors provide stable, higher-paying employment for less educated residents, the majority of whom are workers of color and recent immigrants. In 2019, 29 percent of all new immigrants had not graduated from high school.[42]A further 20 percent finished high school but did not attend college. As better-paying blue collar work has evaporated, most have ended up in the state’s lowest-paying jobs — that massive cohort of nearly 40 percent of Californians who cannot afford to pay routine monthly expenses.

An analysis of 2017 data by the Los Angeles County Economic Development Corporation (LAEDC) found that “across all levels of education, earnings are higher in oil and gas industries compared to the all industry average.”[43]The energy sector provides over 152,100 direct and 213,860 indirect and induced jobs in California that pay higher wages and benefits for individuals with lower levels of education. This workforce is ethnically and racially diverse, and about 63 percent of all employees have less than a bachelor’s degree.

LAEDC also showed that another 3.9 million California jobs (16.5 percent of total state employment) rely on purchases from or use products sold by state energy producers, including chemical, machinery, and metal products manufacturing, wholesale trade, utilities, and transportation, as well as professional, scientific, and technical services.[44]Most of these sectors also provide higher-paying jobs for workers of color, often in more affordable areas of the state. These jobs are also at risk from the forced elimination of the in-state energy sector.

California climate advocates have utterly failed to provide a convincing explanation for how workers of color employed in existing energy and energy-dependent sectors will support their families once these industries are gone. Many, like the fantastically wealthy, famously haughty John Kerry, now the nation’s “climate envoy,” airily suggest that green employment will replace job losses in the fossil fuel sector. Even the staunchly progressive Washington Post conceded that this was unlikely, noting that rapid growth in the wind and solar industries over the next decade could plausibly replace at most 20 percent of the workforce of the coal industry alone.[45]

Trade unions and their Democratic political allies aren’t buying what California’s climate cognoscenti are selling either. “Career opportunities for renewables are nowhere near what they are in gas and oil, and domestic energy workers highly value the safety, reliable duration and compensation of oil and gas construction jobs,” North America’s Building Trades Unions said in July 2020 after conducting two studies of the industry.[46]“We can hate on oil, but the truth is our refinery jobs are really good middle class jobs,” echoed California state senator and labor leader Lorena Gonzalez. “Jobs can’t be an afterthought to any climate change legislation. We must have specific plans that accompany industry changes.”[47]

There are no such plans. California’s oil consumption continues, slowing only with the pandemic, while progressive climate elites see no irony in forcing California’s minority communities out of jobs while importing more oil from Saudi Arabia and other countries not known for adherence to progressive labor, gender, environmental, or civil rights values.

I also ran across this article on “Civil rights readers oppose swift move off natural gas”

Hernandez also has some other interesting thoughts on housing and transportation, which are related to other TSW topics of interest. I’ll take that up in another post.

Does the Forest Service Have a New Administration Temporary Moratorium? If So, on What?

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Does someone’s desk look like this?

Bloomburg news had this interesting story about APD’s (applications for permits to drill on previously purchased leases) being approved without political oversight.

“Approximately 70 permits were approved without proper review following the issuance of a department directive that temporarily elevates review of permitting activities,” said Interior spokeswoman Melissa Schwartz. “Operators have been notified that those applications for permits to drill must be resubmitted for appropriate and timely review. Interior continues to approve permits and will transmit final decisions as soon as possible.”

The approvals were invalid under the Interior Department’s Jan. 20 secretarial order requiring agency brass to authorize drilling permits, easements, hiring and other decisions, according to a notification letter seen by Bloomberg News.

Companies also are being assured they do not face penalties for any drilling or other activities they started under the invalidated permits, though they are being ordered to cease those operations while seeking new approvals.

If I’d worked on processing those APD’s I’d find that a bit demoralizing. Maybe that’s just me. Or if I were a company told to start one day and stop a few days later. I had to do that once with research grants (call and tell the people whom I had told they had gotten grants that they weren’t really getting them after all). I left that agency shortly after.

So I looked at the Secretarial Order of January 20, 2021.

Suspension of Authority.
The delegations of authority to Department Bureaus and Offices to take any of the following actions are hereby temporarily suspended, but may be approved by leadership identified in Section 4 of this Order:
a. To publish, cause to be published, or aid in the publication ofany notice in the Federal Register, including, but not limited to, notices of proposed or final agency action and actions taken in accordance with the National Environmental Policy Act:
b. To issue, revise, or amend Resource Management Plans under the authority of Section 202 of the Federal Land Policy and Management Act as amended;
c. To grant rights of way. easements. or any conveyances of property or interests in property, including land sales or exchanges, or any notices to proceed under previous surface use authorizations that will authorize ground-disturbing activities;
d. To approve plans of operation, or to amend existing plans of operation under the General Mining Law of 1872; e. To issue any final decision with respect to R.S. 2477 claims, including recordable disclaimers of interest;
f. To appoint, hire, or promote personnel. or approve the appointment of any personnel. assigned to a position at or above the level of GS 13, but this does not apply to seasonal hires or emergency work force personnel:
g. To issue any onshore or offshore fossil fuel authorization, including but not limited to a lease, amendment to a lease, affirmative extension of a lease, contract, or other agreement, or permit to drill. This does not limit existing operations under valid leases. It also does not apply to authorizations necessary to: (1) avoid conditions that might pose a threat to human health, welfare, or safety; or (2) to avoid adverse impacts to public land or mineral resources.

These mostly sound a bit like business as usual for a new Admin, depending on how long “temporary” is.. usually Administrations realize that the multitudinous grinding gears of large bureaucracies are difficult to watch all the time, and some kind of trust in employees in general to follow the regulations develops. I did flinch a bit at the “GS-13s and above” moratorium. It isn’t clear whether it’s to check “do we really need this job?” or “do we approve of this person?”. The former would be understandable, the latter a little creepy.

Does anyone know if the Forest Service or USDA in general has the same kind of moratorium and what it might entail? Hopefully not, as the trust and working relationships of many folks involved in the Biden Admin would hold over from four years ago.

Tisha Schuller on “Taking the First Step” with the Biden Administration

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I always like following oil and gas debates, as they remind me of a current version of the “timber wars.” There are corporations (which are bad, needless to say) and their workers (especially working-class rural folks) who provide products that we all use. But oil and gas and forest products are both scape-industries, in the sense that the folks running the (good corporate) brewpub or the marijuana shop running off natural gas, and built with wood, are not contaminated by the sin of producing these materials. There must be a ritual absolution process somewhere along the supply chain.

Tisha Schuller gave an excellent talk on a recent webinar, and made some points that I thought could equally apply to folks from the forest products industry, federal lands ranchers, and perhaps even OHV groups. Here’s a link to her post today and the most salient points to us excerpted below. I think her ideas are worth trying for any group that is traditionally less-favored-group during D Administrations.

How Gamechangers Are Responding

The disruptors have demonstrated that the focus on climate is directional. Remember, this isn’t political. Your investors are in the first car on the climate train. There is not a political pendulum that will swing back when it comes to the role of oil and gas in the energy future. The only choice remaining: We must lead.

Here’s what your responses sound like — if you’re a gamechanger:

· Share the aspiration. “We share the Biden administration’s sense of urgency on addressing climate change and accelerating decarbonization.”

· Take the first step. “We plan to work closely with the Biden administration on advancing clean energy innovation and execution. Addressing climate change happens better, faster, and cheaper with the oil and gas industry at the table. We bring millions of scientists and engineers, billions of dollars, world-class R&D, and millions of miles of existing infrastructure to the challenge at hand.”

· Show promise. “The first thing we want to collaborate with the administration on is ensuring that oil and gas development on federal lands is the most environmentally sustainable in the world, with the smallest footprint and the fastest path to decarbonization. This will allow the U.S. to be a global climate leader while managing the realities of economies, fuel and energy demand, available alternatives, and geopolitics.”

· Embrace the leadership vacuum. “Our industry is unique in that it can bring the resources, existing infrastructure, talent, R&D capabilities, and 150 years of entrepreneurial excellence to partner with the Biden administration to achieve our shared vision for a decarbonizing energy future.”

It’s long past time to throw out the old-school industry political playbook. Let’s do what we are good at and lead into the energy future.

I bolded the Show Promise because you could substitute wood production (including from fuels reduction projects) “on federal lands is the most environmentally sustainable in the world, with the smallest footprint and the fastest path to decarbonization.” This reminds me a bit of the certification on federal lands debate, but we can think beyond FSC.

If you read the Daines-Feinstein bill, you can recognize that pieces of industry ideas are spliced in with others’ ideas. Maybe a more direct and meaningful route to good policy is to sit down and have a discussion with the new Administration. Ideally people can have thoughtful interactions and discuss choices without becoming a random mess of quid pro quo. What do you think?

Supreme Court Upholds Atlantic Coast Pipeline and Forest Service Under-Trail Authority

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We’ve discussed the Atlantic Coast Pipeline before here and possibly elsewhere. Here’s a Hill story from today.

Here’s an excerpt:

The Supreme Court on Monday upheld a permit for a controversial $8 billion gas pipeline that would tunnel below the famed Appalachian Trail.

The 7-2 opinion handed a defeat to environmental groups who challenged the Atlantic Coast Pipeline, (ACP) which would carry natural gas some 600 miles from West Virginia to North Carolina.

The decision to uphold the permit resolves a complex bureaucratic dispute involving multiple U.S. environmental agencies and overlapping legal authorities.

The justices held that the U.S. Forest Service (USFS) had been duly authorized to greenlight the project, rejecting the challengers’ claim that power over the affected land lay elsewhere.

The dispute stemmed from the Department of the Interior’s decision to make the National Park Service (NPS) responsible for the Appalachian Trail. Prior to the court’s Monday decision, the question of whether this move also transferred authority of lands underneath the trail had been an open one.

But Justice Clarence Thomas, writing for the majority, said the administrative arrangement did not remove the USFS’s power to permit construction under the trail.

“Accordingly, the Forest Service had the authority to issue the permit here,” wrote Thomas, whose majority opinion cut across ideological lines.

Thomas was joined by fellow conservatives Chief Justice John Roberts, Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh, as well as liberal justices Stephen Breyer and Ruth Bader Ginsburg. Two of the court’s liberals, Sonia Sotomayor and Elena Kagan, dissented.

“For decades, more than 50 other pipelines have safely crossed the trail without disturbing its public use. The Atlantic Coast Pipeline will be no different,” ACP spokeswoman Ann Nallo said by email, reiterating the company’s plans to be in operation by 2022.

“To avoid impacts to the trail, the pipeline will be installed hundreds of feet below the surface and emerge more than a half-mile from each side of the trail. There will be no construction activity on or near the trail itself, and the public will be able to continue enjoying the trail as they always have.”

Here’s a quote of interest. The plaintiffs just don’t want the project, and will move on to the next permit. Though I’m not sure what environmental law has language about how much something is needed and by whom.

While today’s decision was not what we hoped for, it addresses only one of the many problems faced by the Atlantic Coast Pipeline. This is not a viable project. It is still missing many required authorizations, including the Forest Service permit at issue in today’s case, and the D.C. Circuit Court of Appeals will soon consider the mounting evidence that we never needed this pipeline to supply power,” DJ Gerken, with the Southern Environmental Law Center, which sued over the pipeline, said in a statement.

Clean Water Act major court decisions

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Not long ago we were discussing EPA’s new regulations redefining WOTUS to exclude areas that were not obviously connected to navigable waters, as summarized in the graphic above.  It was the latest iteration of a political dispute over the scope of the Clean Water Act.  Now the U. S. Supreme Court has, in a 6-3 decision, stepped in to apparently invalidate the recent “bright line” rule established by the EPA to again make point source permit requirements contingent on the actual risk of pollutants getting into navigable waters.  This somewhat splits the difference between the Obama and Trump interpretations, but clearly rejects the latter’s new absolute position.  “Significant nexus” has now become “functional equivalent.”

On April 23, 2020, the United States Supreme Court ruled that the addition of pollutants to groundwater which travels a half mile to enter navigable waters is the functional equivalent of a direct discharge, and subject to the protections and requirements of the Clean Water Act (“CWA”). The decision in County of Maui v. Hawaii Wildlife Fund, 590 U.S. (2020), represents a sea change in CWA interpretation, and may spell the end of the Navigable Waters Protection Rule issued by EPA and the Army Corps of Engineers only two days earlier. That rule (colloquially known as the 2020 WOTUS Rule) specifically excluded groundwater from the protections of the CWA under a new definition of “Waters of the United States.”

In determining that the CWA requires a permit when there is a functional equivalent of a direct discharge from a point source to navigable waters, the Supreme Court acknowledged that application of the statute will be highly fact dependent, with time and distance being critical issues in most cases.

In addition, a federal district court has stopped the Keystone Pipeline because its Clean Water Act permit for stream crossings is invalid.  This is significant because the permit was kind of the Clean Water Act equivalent of a NEPA categorical exclusion, a nation-wide blanket permit requiring limited environmental review that could be used for certain kinds of projects.  The court said that when the permit was renewed in 2017, the Army Corps of Engineers failed to adequately consider effects on species listed under the Endangered Species Act.  Since then the permit has been used 37,000 times.  So here’s what’s happening ….

The U.S. Army Corps of Engineers has suspended a nationwide program used to approve oil and gas pipelines, power lines and other utility work, spurred by a court ruling that industry representatives warn could slow or halt numerous infrastructure projects over environmental concerns.

The Trump administration is expected to challenge the ruling in coming days. For now, officials have put on hold about 360 pending notifications to entities approving their use of the permit, Army Corps spokesman Doug Garman said Thursday.

Pipeline and electric utility industry representatives said the effects could be widespread if the suspension lasts, affecting both construction and maintenance on potentially thousands of projects. That includes major pipelines like TC Energy’s Keystone XL crude oil line from Canada to the U.S. Midwest, the Mountain Valley natural gas pipeline in Virginia and power lines from wind turbines and generating stations in many parts of the U.S.

The Forest Service is involved with litigation of the Mountain Valley Pipeline as discussed most recently here.