Month: January 2011

9th Circuit Appeal Decision Allows More Intervenors

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See “Court Ruling Opens Door for Intervenors in Western NEPA Disputes” in NY Times here.

Previously “Under the San Francisco-based 9th U.S. Circuit Court of Appeals’ “federal defendant rule,” anyone other than the federal government was barred in most instances from defending claims under the National Environmental Policy Act (NEPA), the main legal mechanism for challenging government actions that affect the environment. ”

The rule, unique to the 9th Circuit, was frustrating for business and recreational interests in particular, which thought their voices were not always being heard in cases between environmental groups and the government.

Environmental groups had largely stayed neutral on the question of whether the rule should be kept and have downplayed the importance of the case. That is because, while the rule might help them in some cases, in others, it does not.

The ruling will have considerable consequences in the environmental context because the 9th Circuit’s jurisdiction includes the nine Western states, and its caseload therefore includes a substantial number of environmental cases in which the federal government is the defendant.

The rationale behind the rule was that parties seeking to intervene did not have a “significantly protectable” interest because NEPA is a law that only binds the federal government.

Writing for a unanimous court, Judge Barry Silverman said the rule “ignores our traditionally liberal policy in favor of intervention” and “fails to recognize” the fact that private parties can show a protectable right,” he added.

The dispute that led to the ruling focused on efforts by the Magic Valley Trail Machine Association to intervene when the Wilderness Society and Prairie Falcon Audubon Inc. sought to challenge a Forest Service decision concerning motorized travel in the Sawtooth National Forest in Idaho.

It seems mildly odd to me an idea unique to one circuit and one that seems ultimately to be questionable, lived as long as it did (since 1989?). I wonder if there should be time limits on courts responding to appeals, as there are for agency administrative appeals? Here is a link to the decision. I seem to remember a legal maxim along the lines of “justice delayed is justice denied.”

CEQ Issues Final Guidance on Monitoring of Mitigation, Use of CEs

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The Council on Environmental Quality (CEQ) issued two final guidance documents today, one which requires monitoring of any mitigation included in an environmental document, and the other governing the use of categorical exclusions.

It will take a few weeks to fully digest what the guidance will mean for Forest Service planning and implementation of projects.  Both guidance papers are an outcome of CEQs outreach in 2004 to “modernize” NEPA implementation, and last year’s “40th anniversary of NEPA” review.  CEQ is saying that these guidance documents are not rules or regulations, and are not legally binding requirements or legally enforceable.  Nevertheless, the guidance expresses the intent of the Administration, and will likely be used in reviews of agency procedures and NEPA documents.

The mitigation and monitoring guidance paper reemphasizes the importance of mitigation under NEPA to minimize the potential adverse environmental impacts by avoiding, minimizing, rectifying, reducing, or compensating for an impact.  Mitigation (like requiring best practices or staying out of a particular area) is often incorporated into the proposed project design or one of the alternatives.  Sometimes, mitigation might be used to reduce the impact such that a “finding of no significant impact” is made.  CEQ wants Federal agencies to ensure that mitigation commitments are actually implemented, and that monitoring is accomplished to provide feedback on those determinations.

The guidance for categorical exclusions (from NEPA documentation like an EIS or EA) places additional requirements on agencies when they establish categories or use categories already in existence.  CEQ is encouraging agencies to provide guidance on the level of documentation required when CEs are used.

Comments on “Scientific Integrity”

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Interesting things about blogs.. I decided to look at how people got to this blog and noticed that some were linking from Judith Curry’s climate blog here. Turns out that they are having a discussion of some of the points in the post I wrote for Roger Pielke Jr.’s blog, with many more comments (318) than at Roger’s blog here (2, so far) or when I posted it here (0). So if you are interested in this discussion, check it out.

Here’s a quote from her post.

Sharon… makes the following four recommendations:

Here are my four principles for improving the use of information in policy, (1) joint framing and design of research with policymakers (2) explicit consideration of the relevance of practitioner and other forms of knowledge (3) quality measures for scientific information (including QA/QC, data integrity and peer and practitioner review), and (3) transparency and openness of review of any information considered and its application to policy.

The bolded statement is of particular relevance to this topic. In the politics of climate expertise, which experts should be paid attention to?

Steve Schneider had very clear views on this, as evidenced in this interview with Rick Piltz shortly before his death, about the PNAS paper. It is the elite climate scientists (which includes geophysical scientists, ecologists and economists) as judged by their number of publications and citations. Many reputable scientists such as Syun Akasofu (a solar physicist and climate skeptic) were not included in the statistics because he had not published more than 20 papers that were judged to be on the topic of climate. Seems to me that Akasofu has more knowledge about detection and attribution than nearly all of the biologists and economists included in the “list”?

Given the breadth of the topic of climate change, its impacts, and policy options, it seems that considerable breadth of expertise is needed, i.e. “all hands needed on deck.” But there seems to be a turf battle over “which experts,” as evidenced by the PNAS paper and the continued appeal to the IPCC consensus.

More on the “Scientific Integrity” Memo

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Here’s a link to another of my posts on this topic on Roger Pielke, Jr.’s blog.

My concern is that it is not clear what problem the memo is intended to solve. I am not sure that the authors are aware of the dailiness of using science in a variety of government decisions at different spatial and temporal scales. In clumsily attempting to go after the misbehaving, they are likely to target the innocent for unnecessary work. In this economic climate, one would think that people would be more careful about requiring hordes of federal employees to develop and follow unclear and unnecessary policies.

Here’s my summary of the memo (more on the guidelines later).

1. What if we were to apply the ideas espoused in the memo to the promulgation of the memo (as the memo is policy) itself? We might expect a section describing how the work of noted science policy experts was used in the development of the memo, with peer-reviewed citations. I’d expect to see Jasanoff, Sarewitz and Pielke, Jr., at least, cited.

2. Here are my four principles for improving the use of information in policy, (1) joint framing and design of research with policymakers (2) explicit consideration of the relevance of practitioner and other forms of knowledge (3) quality measures for scientific information (including QA/QC, data integrity and peer and practitioner review), and (3) transparency and openness of review of any information considered and its application to policy.

3. If the DQA (Data Quality Act) and the “Integrity” work are seen to be the result of inchoate longings by many for an improved “science to policy” process; and if they seem each to have become, instead, weapons to slime the opposing political party, then why not establish a bipartisan commission on improving the use of scientific and technical information in policy? Science policy experts would advise the commission, and the deliberations would be transparent and open to public comment. The terrain to be explored would include my four principles above, and add considerations of involving citizens more directly in working with the relevant Congressional committees in developing federal research budgets and priorities.

Who’s at the Table II- Cooperating Agencies

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Over the holidays I saw this blog post on a letter send to the FS about who is at the table during cooperating agency meetings on the for the Rosemont Mine project. The letter suggests a FACA committee is necessary if non-governmental folks are invited to provide information.

Here is the letter. Here’s a quote.

It may be useful for you to know that the Bureau of Land Management (BLM) has promulgated agency-wide guidance specifically on this point. The guidance states that normally meetings between BLM and cooperating agencies do not trigger FACA because of the intergovernmental exemption. It explains that the exemption applies “to meetings between federal
officials and elected state, local, or tribal government officials or their designated employees with authority to act on their behalf.” It also addresses the question of whether a cooperating agency may be represented by a contractor working at such a meeting. BLM’s answer in this respect is very instructive:

”The cooperating agency relationship is intended to facilitate the exchange of views and expertise among BLM managers and staff and other governmental officials and staff. For these reasons, the BLM discourages the use of contractors to represent the cooperating agencies. . . .Contractors should not represent the cooperating agencies in meetings where advice or recommendations are sought.”

The guidance goes on to explain that given limited staff and time demands, a cooperating agency might be represented by a contractor if the meeting was used solely for the purpose of exchanging information. . . . “In practice, however, the distinction between exchanging information and seeking recommendations may not be clear.” “For these reasons, the BLM discourages the use of contractors to represent the cooperating agencies.” Please note that this guidance is directed
towards contractors representing other governmental entities. The guidance never suggests that it is ever appropriate to include an applicant or an applicant’s contractors on a regular basis in cooperating agency meetings.

Here’s a link to the 2005 BLM Deskguide to Cooperating Agency Relationships.

Some of you may remember this discussion on the openness of BLM cooperating agency meetings in Wyoming.

Finally, this story from earlier in December on “Who’s at the table” from Uintah County ; plaintiffs, yes, cooperating agencies, no.

The Coordination Process and Forest Plans: Opening Pandora’s Box?

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The recent ruling on the Southern California plans may well increase the weight of local governments at the table for forest planning, if Fred Kelly Grant’s logic here is correct.

The Court found that the only element of the coordination process not followed by the Forest Service was a requirement that it discuss the California policy as to “roadless areas” in order to demonstrate the inconsistencies between the Forest Service proposed plan and the California policy:
“Even if the Forest Service’s review of California’s policy was impeded by California’s failure to fully engage in the planning process, the rule nevertheless required the Forest Service to display the results of its review, however impeded. . . .The results of the Forest Service’s review of state input should have been displayed in the FEIS, even if part of the discussion would have consisted of noting that the State had not fully engaged in the process….”

“The failure to provide any discussion of input from the State, or at least of the State’s failure to fully engage in the planning process, was a violation of the NFMA. This is more than a merely technical violation, as it significantly inhibits the public’s ability to understand the competing priorities of the Forest Service and the State.”

The Court ordered the parties to file briefs describing their views of what process should be followed in compliance with her decision. December 22, 2010, the California Attorney General, and Governor elect, Edmund G. Brown Jr. announced a settlement through which the Forest Service is required to “reconsider its plans regarding wilderness lands in four national forests.”

Brown said: “With this settlement, the state of California will now play an active role along with the Forest Service in determining which areas of Southern California forests will be preserved as wilderness.”

According to Brown’s news release, the state’s basic complaint, in addition to failure to coordinate, was that the Forest Service was planning to allow new roads and trails for off-road vehicles and other uses. California opposed the new road and trail openings. The Court did not rule against the Forest Service on any issue except the failure to coordinate.

Even though local governments did not involve themselves in the lawsuit, each county in which any of the affected forest lands are located would have been entitled to the same result. The laws that require coordination with the state require the same with local governments—cities, towns, counties and special taxing districts. If any local government has an interest in the roadless nature of the Los Padres, Angeles, Cleveland and San Bernardino national forests, it must act quickly in asserting its coordination rights.

You can find the actual decision here.

What I found fascinating in my concrete-thinking way, is the quote from the decision:

“The results of the Forest Service’s review of state input should have been displayed in the FEIS, even if part of the discussion would have consisted of noting that the State had not fully engaged in the process established by the 2005 State Petitions Rule, the lawful process at the time.The failure to provide any discussion of input from the State, or at least of the State’s failure to fully engage in the planning process, was a violation of the NFMA. This is more than a merely technical violation, as it significantly inhibits the public’s ability to understand the competing priorities of the Forest Service and the State.”

A couple of points.

1. So if the FEIS had simply noted that “the State had not engaged in the process”; perhaps maximally one paragraph, would have obviated years of litigation and the settlement – which seems to be more analysis and collaboration with a relatively restricted number of seats at the table? Perhaps another settlement would have been to reissue the FEIS with the new paragraph as a revised DEIS and go for more public comment. Or even establish a FACA committee (including representatives of local governments) to review the comments on the new RDEIS and provide recommendations.

2. This case law around the coordination process definitely makes for more review and analysis, but at the end of the day, after documenting many alternatives and much more analysis, if local and state governments and feds still disagree about what to do, we still have a problem. It seems to be a pattern that we substitute more analysis for conflict resolution. Or we move the conflict resolution to the court system, where seats at the table are restricted.

3. Here’s a couple of ideas- First, in settlement agreements, only procedural solutions should be allowed for procedural problems. It is tempting to resolve these issues substantively, but that tends to leave out the groups that participated in the public collaborative process from the substantive discussion.

Second, I still think FACA committees where states and local governments have a place at the table, as well as others, are a way to build agreements and understandings that will stick.

4. Finally, the involvement of the State of California and the coordination element reminded me of this quote from Martin’s interview with Mark Rey here.

So when we came in, we looked at that history and we concluded that the crux of the problem with this issue is that it’s—on the one hand—an intensely political debate because it’s a basic resource allocation question over resources that people feel very strongly about. On the other hand, it’s a very technical debate because you’re trying to decide the fate of individual areas, putting boundaries around them that are based upon site specific data and so therefore you have to be able to amass and work with a substantial database to make good decisions.

In the case of trying to do a nationwide rule, you know you can get all the political closure you want to finally end the debate. You can have the president of the United States stand on the side of a ridge in southern Virginia and announce the outcome, but as the courts have told us, it’s hard to do justice to all the technical detail that is required to make the decision sound from the standpoint of a reviewing judge.

On the other hand, if you deal with this on a forest-by-forest basis, you can—by virtue of the fact that you have a lot less data to deal with—deal with it more intelligently.

The problem is that you can’t really get political closure to the decision because the decision is going to be made by a GS-14 or a GS-15 career civil servant and everybody knows that you can take the debate on up the food chain to see if you can get a better result. So you don’t get any real closure to the issue, both because of where it’s made and also because you don’t engage national interests to the same degree that you do in a national debate.

So we thought if we tried to find a middle road or a third path by working on a state-by-state basis, we could, on the one hand, reduce the size of the decision down to a manageable level, and on the other hand engage for the purposes of bringing better political closure to this, the one person who’s arguably elected to represent all the citizens of the state and that’s the governor, and that in a partnership with the governor we could get the right balance.

Maybe many forest plans today are now “too hot to handle” in terms of the GS-14 or 15 FS employee and being able to get political closure. What’s noteworthy about the S Cal forests is that there is no timber industry, so this is definitely a post-timber wars issue.

The Royal Forests- Congressman McClintock on the Forest Service

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John of England signs Magna Carta. Illustration from Cassell's History of England (1902)

Disagreement, up to and including violence, around land ownership and use is part of our Homo sapiens heritage. In one sense that is encouraging- it’s not likely that if we were better at our work of land management, all the conflict would go away. And it’s definitely cheery that we have moved away from violence.

Yesterday when I read this comment from David Beebe here

The clearer path begins by understanding the corporatization of Congress and the agencies it funds, corporatization of the media, and corporatization of civil society in general puts the best interests of the commons and the commoners at a distinct disadvantage.

It reminded me of something I had recently read- Congressman McClintock’s views of the commoners, particularly, these comments on the Royal Forests in this letter from Congressman Mclintock to Chief Tidwell.

You can find out more about Congressman McClintock’s views here.

Combined, these actions evince an ideologically driven hostility to the public’s enjoyment of the public’s land – and a clear intention to deny the public the responsible and sustainable use of that land.

Most recently, the Forest Service has placed severe restrictions on vehicle access to the Plumas National Forest, despite volumes of public protests. Supervisor Bill Connelly, Chairman of the Butte County Board of Supervisors writes that “The restriction applies to such activities as: collecting firewood, retrieving game, loading or unloading horses or other livestock, and camping.” He writes, “The National Forests are part of the local fabric. The roads within the National Forests are used by thousands of residents and visitors for transportation and recreation. These activities generate revenue for our rural communities, which are critical for their survival.”

This is not a small matter. The Forest Service now controls 193 million acres within our nation – a land area equivalent to the size of Texas.

During the despotic eras of Norman and Plantagenet England, the Crown declared one third of the land area of Southern England to be the royal forest, the exclusive preserve of the monarch, his forestry officials and his favored aristocrats. The people of Britain were forbidden access to and enjoyment of these forests under harsh penalties. This exclusionary system became so despised by the people that in 1215, five clauses of the Magna Carta were devoted to redress of grievances that are hauntingly similar to those that are now flooding my office.

Mr. Speaker, the attitude that now permeates the U.S. Forest Service from top to bottom is becoming far more reminiscent of the management of the royal forests during the autocracy of King John than of an agency that is supposed to encourage, welcome, facilitate and maximize the public’s use of the public’s land in a nation of free men and women.

After all, that was the vision for the Forest Service set forth by its legendary founder, Gifford Pinchot in 1905: “to provide the greatest amount of good for the greatest amount of people in the long run.”

Is This Any Way to Decarbonize Energy?

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We know that coal is the worst GHG producer, so we move to natural gas (which has other environmental effects). But we are for biomass (or not?) and for solar and wind (except …). Here’s a story from Reuters about a new lawsuit against a solar plant. Now there may be areas that are better and worse- and our system of independent entrepreneurs may not select the best places. So do we need some system of centralized planning to make the transition?

We now have lawsuits against coal, natural gas and solar. So there’s a great deal of no’s- an entire legal industry- but how do we get to “yes”?

Given our previous discussion on the use of lawsuits as a tactical tool for environmental protection, I think these quotes are interesting.

The legal brawl comes as the U.S. is racing to adopt renewables. In the United States, renewable energy, including solar, makes up just 8 percent or so of electricity generation, according to the U.S. Energy Information Administration. That figure was expected to jump to 13 percent by 2035 — but that was before the Green vs. Green feud.

Even though Williams and her cohorts support the broad goal of reducing dependence on fossil fuels, they say it comes at too high a cost if it means building on undeveloped land. Helping their case: the proposed plants are often slated for areas with threatened or endangered animals, including kit foxes, kangaroo rats, rare lizards, and others.

Now, the groups have gone from complaining to litigating. That means solar companies must take funds and management time that would have been spent on developing their plants and spend them instead on fighting lawsuits. For some companies, the likely result is that plants won’t be built

And..

Those who didn’t quickly dusted off a well-worn playbook: using environmental laws to fight a development project.

Lawyers say the moment state or local government approves an environmental plan offers the best opportunity to sue to block a plant, using the federal law known as the National Environmental Policy Act or state law such as the California Environmental Quality Act as grounds. Having threatened or endangered species of plants or animals on a site gives the suits far more heft, they say.

Save Panoche Valley, the organization Williams helped create, and its allies filed a lawsuit in November alleging that the county approved subpar environmental and water assessment reports and improperly canceled conservation agreements to keep the land in agricultural use. Threatened or endangered animals such as the San Joaquin kit fox, the giant kangaroo rat and the blunt-nosed leopard lizard receive special mention throughout the lawsuit. The county doesn’t comment on allegations in pending lawsuits, said assistant county counsel Barbara Thompson.

Getting the permits rescinded is the ultimate goal, the groups say. But almost as good is simply delaying the process. “A long drawn-out one would be a victory too,” says Garthwaite, who believes Solargen would simply run out of money and time to keep fighting.

Solar Millennium is getting a lesson in going to great lengths with its proposed 250-megawatt Ridgecrest plant, mostly on private land in California’s Kern County. Officials are worried about the effect on the Mohave ground squirrel, so Solar Millennium is considering whether to fund a two-year study to evaluate the squirrel population in the area. Phil Leitner, the independent biologist leading the study, says if the study goes ahead, he plans to trap squirrels, put radio collars on them, and take tissue samples from their ears to determine their genetic makeup.

Back in the Panoche Valley, the environmental reports and the permitting process have eaten up almost two-thirds of the money Solargen has raised. Among the bills: paying for scat-sniffing dogs to run up and down the hills, looking for traces of the endangered San Joaquin kit fox.

Are all these lawsuits evidence that something is awry with our system of larger scale policy development and planning? Our country clearly needs energy, and needs to transition to cleaner energy. Is there a clearer path from here to there?