F to WaPo on State Farm in California Story: A to E&E News
WaPo is not the only one, but their “analysis” (?) tells us it’s all about climate change. But no mention of California’s unusual legal requirements, and no skepticism about the insurance companies potentially using climate to pad their estimates. Best coverage so far goes to E&E News, and special kudos to them for making that article public.
Pielke, Jr. on Hurricanes
In the WaPo article, they pivoted to hurricanes. Which reminds me that Roger Pielke, Jr. had a Substack piece on hurricanes this week that rounded up some current information. There are National Forests that are affected by hurricanes, so it is part of TSW country.
Still No Articles on “Feds are already allowing proponents to fund NEPA”
I have seen many more articles on the Debt Ceiling NEPA changes, but none so far that address this. If you have read one, please link in the comments. Curious minds need to know..are all other agencies able to do this? What’s their track record.
Write Legislation in Haste, Litigate at Leisure
Speaking of the Debt Ceiling NEPA, I asked Dan Farber of UC Berkeley Law, about some of Center for Biological Diversity’s claims. Many thanks to him for answering my qeustions! He wrote a post exploring some of the text (NEPA ites will find the entire post interesting) it and concluded:
In addition, given the rest of the garbled language, it’s not clear whether dropping the word “potential” was just another glitch, or was done to make the definition more concise, or was really intended to change the meaning. It’s equally unhelpful to compare the rule to the current, post-Trump version, which is much simpler, does drop potential, but also revamped the rule in other ways different from the new bill.
I suppose the bill might be amended somewhere along the way to fix the problem. But given the lack of time, and the dangers of opening up the bill to changes, I’m not sure whether that’s at all feasible. A later “technical corrections” bill would also be possible, but I think Democrats would oppose any effort to redraft the section in a way that limited the application of NEPA, while Republicans might oppose any fix that restored the current status quo as a back step,
In the absence of a quick legislative fix. I predict lots of fun litigation. Maybe the upshot will be to ignore the definition entirely and only give effect to the exclusions. In the meantime, however, all that litigation is only going to increase delays, which is ironic given that the whole purpose the NEPA changes is supposed to be speeding up the process.
A final thought: I stumbled into this drafting disaster by chance. How many similar glitches are lurking in the bill? The moral may turn out to be: “Draft in haste. Repent at leisure.”
Red line Analysis of Debt Ceiling NEPA by Bipartisan Policy Center.
Thanks to Xan Fishman..”We don’t need legislative doomerism any more than we need climate doomerism.”
Here’s a link to a red line analysis and it also points to BPC and One Federal Decision recommendations.
Legislators (or Their Staff) Who Cry Wolf
There’s a reason The Boy Who Cried Wolf is such a longstanding and popular story. Aesop lived between 620 and 564 BC and the story is still popular today. Question: is there any change to NEPA or to its implementing regulations that according to Grijalva’s office, does not “gut environmental laws”? How would we know what a real “gutting” would look like, if everything is “gutting?” What other adjectives might be left on the table for future use? Here’s their “fact sheet”. It’s interesting to contract with the Bipartisan Policy Center and Dan Farber’s analyses.
No Wolves for You, Colorado
Perhaps this has been resolved, but there is a complex story behind Colorado’s initiative based wolf reintroduction program. It wasn’t supported by CPW wildlife managers, but thrust upon them. Then the state legislature and the Governor got involved in the 10j question. This article in Colorado Politics by Marianne Goodland was over my head about the 10j stuff so good for her, unless Jon and other experts think she missed something.
Context: wolves have been migrating down from Wyoming anyway. So why reintroduce? Many of us asked the same question, but it was on a ballot initiative.
Back to reintroduction. Below is from an article in gohunt.com by Kristen Schmitt.
The draft wolf reintroduction plan includes sourcing wolves from Idaho, Wyoming and Montana; however, that’s where it gets a bit tricky. In fact, language within the plan states that “[s]pecific agreements regarding donor populations have been discussed with these three states but final agreements have not yet been concluded.”
But that doesn’t seem to be true.
“We have not been and are not in conversations about moving wolves to another state. To be clear, we have not talked and are not talking to Colorado about moving wolves,” said Greg Lemon, a spokesperson for Montana Fish, Wildlife and Parks.
Idaho noted that “the states have not had any formal conversations” and Wyoming Gov. Mark Gordon is against Colorado’s reintroduction effort, which means that they don’t plan on relocating any wolves to the Centennial State. Period.
“Our current wolf management plan is working, and it works because it is designed to manage wolves in biologically and socially suitable habitats and to keep wolves out of areas of the state where conflicts would be highest,” said Gordon. “Our border with Colorado is an unsuitable area for wolves, and that would mean more human conflicts. Resolution of conflicts are almost always deadly to wolves.”
Oregon and Washington are suggested as possible alternatives though no formal discussions have occurred, according to Channel 9 News. The same goes for Utah.
“There are currently no established wolf packs in Utah, which would likely not make us a viable candidate for providing wolves,” said a Utah Division of Wildlife Resources spokesperson.
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Feel free to add your own “news of the week” in the comments.
I suppose I will have to get familiar with the new NEPA (or maybe it’s time to really retire?). But for now, here is someone else’s take on the “major federal action” language. For context, I’m assuming that this existing framework language is still in the law: the trigger for preparing an EIS is “federal actions significantly affecting the quality of the human environment.” So the idea of “major” being “effects” that may be significant is still covered, and the focus of the new language appears to be more on the question of what is “federal.” (For federal land management, maybe this would play into the “small handle” question of permits that allow access that facilitates private developments).
“In a new definitions section, Section 111, “Major Federal Action” is defined as “an action that the agency carrying out such action determines is subject to substantial Federal control and responsibility.” This is a significant departure from the NEPA status quo, which previously relied on agencies to interpret the subordinate terms “major,” “federal,” and “action” and the courts to act as arbiters of the reasonableness of that interpretation. The addition of the word “substantial” narrows the scope of NEPA applicability. The definition explicitly excludes projects “with no or minimal Federal involvement where a Federal agency cannot control the outcome of the project,” loans or loan guarantees where the agency “does not exercise sufficient control and responsibility over the subsequent use of such financial assistance or the effect of the action,” and SBA loan guarantees and other financial instruments. By applying to the use or effect of the financial assistance, this broadens the kinds of actions excluded from the definition of “Major Federal Action” in the 2020 regulations at 40 CFR 1508.1(q)(1)(vii).
https://www.perkinscoie.com/en/news-insights/substantive-nepa-amendments-in-the-debt-ceiling-bill.html#:~:text=President%20Joe%20Biden%20signed%20into,amendments%20to%20the%20National%20Environmental
“CPW and U.S. Fish and Wildlife have worked diligently to ensure that Colorado receives a 10J in mid-December 2023, which would give Colorado the maximum amount of flexibility in managing healthy wolf populations.”
ESA allows designation of 10(j) “experimental populations” only where “the population is wholly separate geographically from nonexperimental populations of the same species.” That should mean that the state and federal science entities are working to establish that there are no naturally occurring wolves in the areas that could interact with those that would be introduced (rather than some kind of political influence by the state going on). Given the nature of wolves, and their cited presence in the state already, this seems like it would be a challenge.