Sharon | The Smokey Wire : National Forest News and Views

Scientist “Rebuking” Other Scientists in Court? OSU Scientists (and Others) at Loggerheads

April 3, 2023April 3, 2023 by Sharon

Sorry for the headline.. couldn’t resist.

Thanks to Nick Smith, I found this article. I don’t think the context will surprise anyone. I think it’s a good article in terms of showing both sides. Hopefully you can access it with a free sign-up, fortunately I had a “non-free” email account to use to sign up.

Law360 (March 31, 2023, 7:26 PM EDT) — An ecology professor at Oregon State University rebuked her colleague over his support for new regulations that weaken protections for large trees in the Pacific Northwest, telling a federal judge that scientists are divided on whether such trees pose a legitimate wildfire risk.
The new rules, which the U.S. Forest Service adopted in early 2021, replaced a set of restrictions known as the Eastside Screens that outlawed removing trees more than 21 inches in diameter from almost 8 million acres of national forests in the Cascade Mountain Range.
Contrary to what the Forest Service and a group of scientists have testified, large trees do not substantially contribute to wildfires, according to Beverly Law, a professor in the Department of Forest Ecosystems and Society at Oregon State.
Law, whose formal title is professor emeritus of global change biology and terrestrial system science, told an Oregon federal court on Wednesday that she joined more than 150 other scientists in opposing the Eastside Screens revision before it took effect. Their views, she said, indicate that ecologists aren’t unified on the question of tree removal, as her Oregon State colleague has indicated.
That claim to a scientific consensus, Law told the court, “does not accurately reflect the state of the science generally on these topics, nor specifically the best available science and field verification of the condition of the forests at issue in this case.”
The interdepartmental spat — at a university whose mascot is the timber-minded Benny Beaver — comes amid litigation that six environmental groups initiated last June.
Forest Service officials, the groups claim, followed a shoddy review process before adopting the Eastside Screens amendment by forgoing a full environmental study and stifling public opposition.
A group of 15 scientists, led by Oregon State professor James Johnston, is defending the change in a not-yet-approved amicus letter, saying that forest-thinning activities have prevented ecological disasters and benefited the natural environment. Indeed, “no meaningful controversy among scientists exists” on that topic, they told the court in a Feb. 10 submission.

For those curious at this point, here are the 15 I. Derek Churchill, Ph.D., Forest Health Scientist, Washington State Department of Natural Resources 2. Don Falk, Ph.D., Professor, University of Arizona School of Natural Resources and the Environment 3. Jerry Franklin, Ph.D., Professor Emeritus, College of Forest Resources at University of Washington 4. Keala Hagmann, Ph.D., Research Ecologist, Applegate Forestry LLC
5. Lori D. Daniels, Ph.D., Professor, Department of Forest and Conservation Sciences at the University of British Columbia 6. Matthew Hurteau, Ph.D., Professor, Department of Biology at the University of New
Mexico 7. Meg Krawchuk, Ph.D., Associate Professor, College of Forestry at Oregon State University 8. Norm Johnson, Ph.D., Professor Emeritus, College of Forestry at Oregon State University 9. Peter M. Brown, Ph.D., Director, Rocky Mountain Tree-Ring Research 10. Robert W. Gray, Fire Ecologist, R.W. Gray Consulting, Ltd. 11. Scott Stephens, Ph.D., Professor of Fire Science, University of California Berkeley 12. Susan Prichard, Ph.D., Fire Ecologist, University of Washington School of Environmental and Forest Sciences 13. Thomas H. Deluca, Ph.D., Dean, College of Forestry at Oregon State University 14. Trent Seager, Ph.D., Director of Science, Sustainable Northwest. Back to the story:

But Johnston, an assistant professor in the Department of Forest Ecosystems and Society who is also a paid Forest Service consultant, failed to note the objections from Law and many other scientists, she said Wednesday.
That group told the Forest Service that weakening its tree protections was “highly controversial from a scientific perspective” and accused the agency of “rushing forward without adequately analyzing the impacts of the proposal on wildlife habitat, aquatic ecosystems, hydrological cycles and carbon values.”
Law, in a declaration filed by the environmental groups, cited past research indicating that large trees create a canopy that prevents sunlight from drying out the forest floor — a key to preventing wildfires. Debris on the forest floor accounts for around half of the combusting material in a wildfire, she noted, whereas large trees rarely ignite.
Johnston and federal regulators, Law argued, “are making a mountain out of a molehill.”
“We cannot know where wildfire will burn, yet they have eliminated protections for large trees based on a gross overstatement of the risk so that the Forest Service will be able to authorize the preemptive killing and removal of large grand fir trees across the entire landscape,” she said.
Adopted in 1994 as a broad series of timber regulations, the Eastside Screens included a blanket prohibition on removing any tree measuring more than 21 inches in diameter at “breast height,” a standard measurement in forestry.
The federal government began exploring possible amendments to that restriction in 2020, noting that climate patterns, long droughts and poor forest management have produced a worsening pattern of wildfires. Rather than a blanket protection, the rules adopted a year later by the Forest Service carry only a discretionary guidance to preserve some old and large trees.
That policy shift, the agency has argued in court, “satisfies all statutory requirements and enjoys strong scientific support.”
“The weight of scientific consensus counsels the Forest Service to mitigate [wildfire] threats by actively managing forests to favor more historically prevalent, fire tolerant species,” it said in February. “But that change is impossible if the Forest Service cannot cut any competing fire intolerant species over 21 inches in diameter.”
Two advocacy groups, the American Forest Resource Council and the Eastern Oregon Counties Association, are backing the revisions as a common-sense move that doesn’t spell ecological disaster.
But the environmentalists want to focus on their allegations of procedural errors. The groups, in a court filing on Wednesday, said the Forest Service “shortened the [amendment] process and swept substantial controversies under the rug.”
“This court need not wade into the scientific debate to determine that important steps were skipped,” they said, adding that “the failure to abide by the required procedural steps necessitates vacatur and remand of the Screens Amendment.”
The plaintiffs have sought to keep Johnston from getting amicus status, arguing in February that his opinion “is already both functionally and legally represented” because he consults for the Forest Service.

1) I also thought this was an interesting disciplinary observation..

Their views, she said, indicate that ecologists aren’t unified on the question of tree removal, as her Oregon State colleague has indicated.

This seems like a fuels and fire behavior question to some extent, and also a tree physiology question. It would be interesting to discuss why some scientists in some disciplines come to different conclusions based on what kinds of evidence. Not that this discussion will happen in the courtroom environment.

2) I wonder about the amicus letter thing.. Maybe our legal minds here can weigh in. What is the difference between Law testifying (giving her opinions) and Johnston et al. giving their opinions to court? If 15 scientists signed on to the amicus letter and she thinks that isn’t kosher because Johnston takes bucks from feds, what about the others? Don’t all university scholars take bucks from feds? Is the difference consulting vs. research?

3) “But Johnston, an assistant professor in the Department of Forest Ecosystems and Society who is also a paid Forest Service consultant, failed to note the objections from Law and many other scientists, she said Wednesday.”

I don’t think he would have to.. isn’t that the role of the response to comments in the EA or EIS? Does her testimony note objections from Johnston? It doesn’t seem like a legal thing to do that, but I don’t know.

4) Yes, Johnston is helping Blue Mountains Partners as part of the CFLRP (as far as I understand). As part of that the people there decide what to be studied and have the funds to study it. It seems to me that local scientific knowledge would be prioritized in some sense over non-local. So Johnston shouldn’t get paid to do that exceedingly useful work? I find this most concerning of all of this.

5) Wouldn’t it be interesting if OSU would pioneer some kind of scientific joint-fact finding effort in which scientists could engage in discourse with the public about their research design, findings and interpretation? It could be a model for such disagreements and be a form of science education, both to the public and to students? They could bring in the best minds on environmental conflict resolution and other experts… And field trips!!!

New BLM Rule Surfaces on April Fool’s Day! Biden Admin Adopts PERC Ideas-Signs of a Libertarian Turn?

April 1, 2023 by Sharon

An alert TSW reader sent me the new BLM reg which is full of interesting stuff- today, April Fool’s Day.

It’s to be released Monday.

What is Monday? Well, we’re coming into the week of Passover for Jews and Holy Week for Christians. If you are in either of those groups, your eyes tend to be focused on history, the spiritual and family. So no, not good timing for something very complex. Although to be fair, the press release had one version was posted on the 30th.

There is indeed MOG stuff in there..and the FS is coming out with their MOG maps soon. I think political scientists would be fascinated by the differences in approaches between the FS and the BLM. I am still a fan of the Service First concept. In my experience, the public liked it a lot (local human beings with direct experience). Is it in the interests of good government for these two agencies to be pushed apart by certain groups with current political power? Should it be a Good Government priority to manage any policy and procedural drift between the two multiple-use agencies carefully?

I thought of our old TSW friend David Beebe, who used to say that the FS was a “captured agency”. (We miss you, David!) When I looked up “regulatory capture” on Wikipedia.. I realized that agencies could be captured by ideological forces..

In politics, regulatory capture (also agency capture and client politics) is a form of corruption of authority that occurs when a political entity, policymaker, or regulator is co-opted to serve the commercial, ideological, or political interests of a minor constituency, such as a particular geographic area, industry, profession, or ideological group.[1][2]
When regulatory capture occurs, a special interest is prioritized over the general interests of the public, leading to a net loss for society. The theory of client politics is related to that of rent-seeking and political failure; client politics “occurs when most or all of the benefits of a program go to some single, reasonably small interest (e.g., industry, profession, or locality) but most or all of the costs will be borne by a large number of people (for example, all taxpayers)”.[3]

(my bold)

I’m sure we may disagree about what “the general interests of the public” are.. whether processes or outcomes, and how these might best be determined. Nevertheless, I would say that the “general interests of the public” is to have the two agencies attempt to harmonize as much as possible.

Anyway, I’m sure there’s lots of interesting stuff in there to talk about. Let me know in the comments, and we can set up separate posts/discussion threads for different topics of interest.

Sometimes on TSW I’ve heard negative things about PERC. Certainly they are fans of things some people here disagree with (as per Jonathan Wood’s House testimony last week on the Cottonwood fix).

They have long touted conservation leasing . Here’s their March 31 post, with links to other of their articles on the subject. I am not necessarily a fan of conservation leasing, but I do like it when the government takes ideas from all comers, regardless of ideological orientation.

Though more work remains to advance conservation leasing, this announcement represents a positive step forward toward that goal.
“The Bureau’s proposed rule is a big step in the right direction toward putting conservation on equal footing with other uses like drilling, mining, and ranching. Empowering conservationists to channel their interests through a market mechanism is more effective than zero-sum political warfare.”—Brian Yablonski, CEO, PERC
PERC believes that creating markets for conservation on public lands would allow resources to be managed for their highest-valued uses, whether that means consumption or conservation. Open markets that give everyone a seat at the table would be a cooperative way to make trade-offs in land use decisions and reduce conflict through voluntary exchange.

BLM Proposed Rule Stirs Up MOG-y Drama With Certain ENGOs

March 30, 2023 by Sharon

Perhaps a proposed Rule will drop in the Federal Register tomorrow. But I received this email today. It was so different from the DOI announcement that Steve posted, that at first I didn’t think they were talking about the same thing. But maybe there are two? Anyway it sounds like some groups were given advance copies so they could respond quickly.. but maybe they are guessing, or engaging in wishful thinking. From what I’ve heard, the FS will have some information on their OG initiative within the month. Hopefully the agencies are aligned. I think the theme of these two weeks is “are agencies aligned? And how does that occur? And who is calling the shots?”

Contact:
Environment America Research & Policy Center,
Natural Resources Defense Council,
Oregon Wild,
Sierra Club,
Standing Trees,
ReWilding Manager, WildEarth Guardians
Department of Interior moves to protect mature and old-growth trees and forests from logging
Wide-ranging rule will include Bureau of Land Management forest policies
WASHINGTON, DC – The U.S. Department of the Interior (DOI) announced Thursday a wide-ranging conservation rule with a goal to “promote ecosystem resilience on public lands” and which includes an acknowledgment of the importance of mature and old-growth trees and forests. The DOI will launch a 75-day public comment period during which members of the public will weigh on forest protection and other policies being considered. Members of the Climate Forests Campaign, a coalition of more than 120 organizations working to protect mature and old-growth trees and forests on federal land from the threat of logging, praised this welcome recognition by DOI, and further called on the U.S. Department of Agriculture (USDA) to adopt rules that protect mature and old growth trees and forests as part of its work to restore U.S Forest Service lands and safeguard communities from fire.
Thursday’s announcements come nearly a year after President Biden issued an executive order acknowledging the critical roles that forests play in fighting climate change and protecting wildlife habitat and directing the DOI and USDA to “develop policies, with robust opportunity for public comment, to institutionalize climate-smart management and conservation strategies that address threats to mature and old-growth forests on Federal lands.”
Over 63 million acres of mature and old-growth forests safeguard carbon, clean water, and biodiversity across all federal public lands, including over 5 million acres managed by the Interior Department’s Bureau of Land Management (BLM) and over 53 million acres managed by the U.S. Forest Service in the U.S. Department of Agriculture. Of these, some 50 million acres are at risk from logging. The DOI’s announcement would begin a rulemaking process for forests managed by the BLM.
The Climate Forests Campaign has been working to raise awareness about the necessity of protecting these trees and forests from logging highlighting 22 logging projects targeting mature and old-growth trees in Forest Service and BLM forests. Yet, only one of those projects, Flat Country in the Willamette National Forest, has been withdrawn because it was incongruous with the Biden administration’s policies regarding protecting trees that are important for fighting climate change.
In response to the agencies’ announcements, advocates issued the following statements:
“This is a much welcomed, necessary step in the right direction for protecting mature and old-growth forests,” said Blaine Miller-McFeeley, senior legislative representative at Earthjustice. “President Biden made clear last Earth Day that he wants to incorporate the conservation of these vital trees as a part of the climate solution. We encourage the U.S. Forest Service to follow the lead of the Bureau of Land Management in progressing that vision.”
“These agencies face many challenges when it comes to protecting mature and old-growth forests on federal lands and they have enormous sway over whether logging takes down our mature forests,” said Environment America Research & Policy Center’s Public Lands Campaign Director, Ellen Montgomery. “Americans love our forests and want to see our oldest trees growing tall for decades and centuries to come. We’ll urge people to make these views known through the upcoming public comment process.”
“BLM manages some of America’s most climate-critical mature forests and trees,” said Garett Rose, Senior Attorney at the Natural Resources Defense Council (NRDC). “Logging them releases carbon, destroys habitat, and undermines recreational opportunities. Following today’s welcome announcement, the Agency must ensure that the final regulation includes robust protection for these magnificent forests and trees.”
“Recognizing the importance of mature and old-growth forests as a natural climate solution is a huge step forward for the Bureau of Land Management,” said Oregon Wild’s Conservation Director, Steve Pedery. “Now all eyes are on Secretary Haaland to see meaningful protections established that preserve these giants from logging and ensure they remain standing for generations to come.”
“The Department of the Interior manages some of the most important landscapes and ecosystems in the country, including portions of our last mature and old-growth forests,” said Alex Craven, Senior Campaign Representative with Sierra Club. “Today’s announcement shows important leadership from Secretary Haaland, and we look forward to working with the department to make sure it delivers long-awaited protections to these vital and precious forests.”
“We commend the US Department of Interior for taking an important step in the right direction for the protection of the Bureau of Land Management’s mature and old-growth forests,” said Zack Porter, Executive Director of Standing Trees, which advocates on behalf of New England’s public lands. “Now that the BLM is leading the way forward, we expect the U.S. Forest Service to quickly follow suit so that all mature and old-growth forests on federal public lands can be protected for the benefit of future generations, as directed by President Biden in his executive order from Earth Day 2022.”
“The BLM and President Biden recognize the crucial role mature and old-growth forests have in helping address the climate crisis, and we remain hopeful the government will safeguard them from harmful logging operations,” said Adam Rissien, WildEarth Guardians’ ReWilding Manager. “Halting the logging of older, fire-resistant trees is an immediate step the agency can take to stop exacerbating the many natural threats forest face under a changing climate.”
“BLM older forests are some of the most carbon dense on the planet that are essential to the Biden administration’s nature-based climate strategy. They should be protected from all forms of logging as part of BLM’s overall stewardship responsibilities and in compliance with the president’s executive orders to inventory older forests for conservation purposes and to protect 30% of the nation’s lands and waters by 2030” said Dominick A. DellaSala, Ph. D, Chief Scientist, Wild Heritage, Oregon.

The Amazing World of Political Byzantinery… How a CEQ Underling Overruled a Senate-Confirmed Cabinet Secretary

March 29, 2023 by Sharon

And I’ve been interested, as you know, in how alignment in the USG currently works. Because if the Admin has a stated policy, then are the agencies working together to implement it? What if they disagree? How are arguments worked out in practice? Who is really holding the cards, and why.. and what makes political power exactly.. donations, the buddy system??? And when we think about voting, we need to think not only about the candidate themselves, but who in the Admin will be making decisions and why. Because I’m not a political person (I consider myself politically-impaired and many of my former bosses will agree) but based on my experience, every notable decision from here on in has some 2024 considerations involved. (We used to call this “silly season” and like many things it was shorter during less partisan times).

So today, we have an interesting example, based on the rumor mill (several sources). In this case, the USDA wanted to support the bill on fire retardant that was discussed last week at the Federal Lands Subcommittee Hearing (which was interesting and I’ll have a post or two just on that).

However, as I understand it, the Secretary of Agriculture (a Senate-confirmed Cabinet member) was overruled by an underling at the Council on Environmental Quality. How did this happen? I filed a FOIA to learn more, but anyone who has more information please contact me.

Right now, I can think of two rational reasons for this point of view. 1. Giving more power to the EPA or 2. “They shouldn’t live there anyway”.- kind of a pre-re-wilding point of view. But we’ll see what it says in the FOIA.

Ramping Up Green Energy Permitting.. BLM asks for $20 Mill to Accelerate

March 29, 2023March 28, 2023 by Sharon

I got this map from the Greenwire story so it might not be the latest one.

There must have been something in the air.. after I posted the previous post on BLM geothermal permitting, I found this story from E&E News. It’s paywalled, so here are some excerpts.

It plans to do this primarily through organizational changes designed to more quickly review and approve applications forright-of-way grants for projects on BLM lands, according to a budget justification document.
The budget proposal would allow BLM to:
* Create a “project management office” that would support “technical development of BLM field staff for the review and permitting” of solar, wind and geothermal projects “and related transmission and battery storage infrastructure.” One goal is to coordinate with the Department of Energy to tap into $400 billion in grants provided through the Inflation Reduction Act “to advance clean energy.”
* Name a task force of experts to help with breaking “permitting bottlenecks and challenges,” as well as hiring additional staff at BLM Renewable Energy Coordination Offices in the West who are tasked with prioritizing renewable energy project applications.
* Establish a geothermal regional project support team. BLM has reported that there are 48 geothermal power plants
operating on bureau-managed lands, with a total 2,500 MW capacity.
BLM declined to answer specific questions about its renewables budget request in time for publication.
But the bureau says in the budget document that the increased funding, if approved, would “support siting, leasing, processing rights-of-way applications, and oversight of renewable energy projects and transmission lines connecting to renewable energy projects.”

The FS and other agencies have had trouble hiring people, but maybe these jobs would be work at home so perhaps more attractive.

While the pace of renewables development the Biden administration hopes to achieve might be faster than before, it’s not terribly impressive, either, said Carey King, a research scientist and assistant director of the Energy Institute at the University of Texas, Austin.
King noted that in Texas, which has very little federal land and few zoning laws, the Electric Reliability Council of Texas (ERCOT) already has about 35,000 MW of wind power capacity in operation — by far the most of any state — and has turned its attention to solar. There is more than 8,000 MW of installed solar capacity in 2021, with plans to add another 8,000 MW capacity by the end of this year.
“The BLM plans sound about the same size as Texas rate of permitting/installation,” he said.

But.. the federal lands are subject to a different regulation scenario with a variety of different stakeholders as we have seen in the Geothermal Toad project.

BLM is on pace to approve 48 wind, solar and geothermal energy projects with the capacity to produce an estimated 31,827 MW of electricity — enough to power roughly 9.5 million homes — by the end of the fiscal 2025 budget cycle, according to an Interior Department report to Congress last year (Greenwire, April 20, 2022).
Much of that effort has focused on solar resource-rich Nevada, where the bureau in the last year has removed tens of thousands of acres of federal lands for use while it evaluates commercial-scale projects.
BLM last year removed the equivalent of 185 square miles of federal lands in southern Nevada’s Esmeralda County from new mining claims and other uses for two years while it studies seven utility-scale solar power projects that would have the capacity to produce 5,350 MW of electricity, or enough to power roughly 1.8 million homes (E&E News PM, July 26, 2022).
BLM last week segregated from new mining claims and other uses 5,281 acres straddling Clark and Nye counties in Nevada, about 40 miles west of Las Vegas, while it studies the proposed 500-MW Mosey Solar Project (E&E News PM, March 20).
The Mosey project is near three other large-scale solar project proposals covering nearly 16,000 acres of federal lands southeast of Pahrump, Nev., that BLM in 2021 withdrew from new mining claims while it evaluated each.
But the buildup has prompted some pushback from those worried about impacts to natural resources.
A number of residents in Nevada and California told BLM during an online hearing last month to gather public feedback on the bureau’s plan to update its 2012 Western Solar Plan (E&E News PM, Feb. 14).
“We are basically, to put it very simply, we are right in the middle of this attack of solar on our community,” said Don Sneddon, a Desert Center, Calif., resident who asked BLM to designate in the plan “exclusion zones” around towns and residential areas to prevent solar power plants from encroaching on homes. “Very simply said, the human element needs to be considered.”

As to Biden Admin alignment, it appears that the new Avi Kwa Me National Monument was protected partially in response to concerns of the Fort Mojave Indian Tribe. There’s an open access article on this on Greenwire.

“To us, this is the last of what’s left out there,” said McDowell, who serves as project manager of the Topock remediation project, which aims to address groundwater contamination near the Topock Maze, a geoglyph near Needles, Calif., considered to be spiritually important to the tribe.
“Every time we turn around, there’s a proposal to put in a wind farm or a solar project that would wipe this landscape out,” she said.

McDowell noted that the Mojave are not opposed specifically to wind energy development, but rather its impact on an important area.
“It’s not that we’re against any type of energy development. It’s just where you put it at,” McDowell said. “And unfortunately, to people that don’t live here, don’t come from here … or don’t know the land like the Mojave people do, they see it just as a piece of desert, as a landscape than can be bulldozed and cleared.”

Can We Get There From Here? Wishful Thinking Meets Reality on Federal Lands.. Geothermal Version

March 28, 2023 by Sharon

This map is from an earlier presentation on this video at 23:15

The Western Governors’ Association has a whole series called “The Heat Beneath Our Feet” about geothermal. At 28:14 of this video, Lorenzo Trimble of the BLM talks about the BLM process.

Apparently there is a Geothermal PEIS that amended 114 (!) land use plans to incorporate geothermal leases. Improved leasing on BLM and FS, and is not stale. In this presentation, the FS is one Surface Management Agency.

Personally I would prefer that people not say that using a CE (or CX in BLM-ese) is “not NEPA” as that’s not what the regs say…

Interestingly if you have an oil and gas lease, you can non-competitively apply for a geothermal lease.

What Happened to This Bill? Public Land Renewable Energy Development Act

March 27, 2023March 27, 2023 by Sharon

UPDATE: I called Levin’s office and it was reintroduced in January and is HR178. Without reading it carefully it looks similar.

Last week we talked about the USG picking some priority sites for renewable energy on Federal lands. It was proposed by Congressperson Levin (current member of House Natural Resources Committee) of S. Cal. in 2021. Here’s his press release.

The Public Land Renewable Energy Development Act helps combat the climate crisis and reduce greenhouse gas emissions by promoting the development of wind, solar, and geothermal energy on public lands. The bill includes measures to ensure a fair return for impacted states and communities and directs revenues to fund conservation. In addition, the bill incentivizes development in lower-conflict priority areas, while ensuring impacts to wildlife, habitat, and cultural resources are avoided and minimized.
The bill establishes a revenue sharing mechanism ensuring a fair return for relevant stakeholders. The revenue sharing mechanism will distribute certain revenues derived through the bill by returning 25 percent to the state where development occurs, 25 percent to the counties of origin, 25 percent deposited into a fund for sportsmen and conservation purposes, and 25 percent directed for the purposes of more efficiently processing permit applications and reducing the backlog of renewable energy permits.

Here’s a link to the bill.

(a) PRIORITY AREAS.—
5 (1) IN GENERAL.—The Secretary, in consulta6 tion with the Secretary of Energy, shall establish
7 priority areas on covered land for geothermal, solar,
8 and wind energy projects, consistent with the prin9 ciples of multiple use (as defined in the Federal
10 Land Policy and Management Act of 1976 (43
11 U.S.C. 1701 et seq.)) and the renewable energy per12 mitting goal enacted by the Consolidated Appropria13 tions Act of 2021 (Public Law 116–260). Among
14 applications for a given renewable energy source,
15 proposed projects located in priority areas for that
16 renewable energy source shall—
17 (A) be given the highest priority for
18 incentivizing deployment thereon; and
19 (B) be offered the opportunity to partici20 pate in any regional mitigation plan developed
21 for the relevant priority areas.
22 (2) ESTABLISHING PRIORITY AREAS.—
23 (A) GEOTHERMAL ENERGY.—For geo24 thermal energy, the Secretary shall establish
25 priority areas as soon as practicable, but not later than 5 years, after the date of the enactment of this Act.
3 (B) SOLAR ENERGY.—For solar energy—
4 (i) solar designated leasing areas (in
5 cluding the solar energy zones established
6 by Bureau of Land Management Solar En
7 ergy Program, established in October
8 2012), and any subsequent land use plan
9 amendments, shall be considered to be pri10 ority areas for solar energy projects; and
11 (ii) the Secretary shall complete a
12 process to consider establishing additional
13 solar priority areas as soon as practicable,
14 but not later than 3 years, after the date
15 of the enactment of this Act.
16 (C) WIND ENERGY.—For wind energy, the
17 Secretary shall complete a process to consider
18 establishing additional wind priority areas as
19 soon as practicable, but not later than 3 years,
20 after the date of the enactment of this Act.

Something that’s interesting about this bill is who endorsed it .. (Ormat are the geothermal folks involved in the geothermal/toad litigation we talked about last week. Anyway,

The following organizations have endorsed the bill: The Wilderness Society, American Clean Power, Natural Resources Defense Council, Solar Energy Industries Association, EDF Renewables, Ormat Technologies Inc, Trout Unlimited, National Association of Counties, Backcountry Hunters & Anglers, Theodore Roosevelt Conservation Partnership, and Outdoor Alliance.

Is Something Rare (Almost) Everywhere? Geothermal vs. Toads and the Search for Land for Renewables with Fewest (No?) Impacts

March 23, 2023March 23, 2023 by Sharon

Ormat’s Steamboat Hills geothermal plant outside Reno, Nev., supplies electricity to the Los Angeles Department of Water and Power. (Ormat Technologies)

Update: the Fallon Paiute-Shoshone Tribe is a plaintiff with CBD on this lawsuit against this project.

Another excellent piece by Sammy Roth of the LA Times in his Boiling Point newsletter. The Times has something like 99 cents for six months which IMHO is worth getting if you only read Sammy’s work. He also has links to interesting articles on wind and solar and wildlife that I hadn’t seen. And perhaps you can sign up for his Boiling Point newsletter without being a subscriber. This is a controversy about something considered to be good for decarbonization (geothermal) but has localized environmental impacts. We usually see this as a “good ENGO’s vs. bad industry” kind of thing, but this seems to be a “good ENGO vs. good industry” kind of thing. I like how Sammy interviews both Patrick Donnelly of CBD and folks from Ormat, the geothermal company, and tries to put the pieces together.

Looking through our lens posited yesterday considering the Biden Admin and Native people, I don’t see any mention of Native concerns in this piece (I’m checking with the reporter). Also the Biden Admin would have to go with the science of the USFWS because of the unique science-based characteristics of ESA (Jon can correct me on this). And perhaps their own views of “scientific integrity” as Jon brought up here yesterday.

The nation’s largest geothermal power company is preparing to sue the Biden administration over its decision to protect a tiny toad, in the latest high-stakes showdown between renewable energy development and wildlife conservation.
In a letter to Interior Secretary Deb Haaland and the director of the U.S. Fish and Wildlife Service — a copy of which was shared exclusively with The Times — Ormat Technologies Inc. warned Wednesday that it would sue the wildlife service in 60 days if the agency doesn’t revisit its decision to declare the Dixie Valley toad an endangered species. That decision might otherwise derail Ormat’s plan for a Nevada geothermal plant that could potentially supply climate-friendly electricity to California.
Federal scientists say the 2-inch amphibian’s wetland habitat — the only place it’s found on Earth — is threatened by Ormat’s renewable energy project. The Reno-based company disputes that conclusion, arguing it’s grounded in shoddy science.
Paul Thomsen, Ormat’s vice president of business development, told me federal officials wrongly assumed his firm’s geothermal production would drain the nearby Dixie Meadows, when the company’s tests have suggested otherwise. He also said the Biden administration had illegally invoked the Endangered Species Act based on speculative future harm to the toad.
“For us, the precedent there is terrifying,” Thomsen said. “If this action were to stand, many renewable energy projects in the West could be thwarted simply based on a concern, with no evidence that they may impact a species in the future.”
“We’re being convicted of a crime that we haven’t committed,” he added.
To help avert the worst consequences of global warming — which is already fueling deadlier and more destructive heat waves, fires, droughts and floods — the U.S. must build huge amounts of renewable energy infrastructure at a breakneck pace.
But across the American West, endangered-species concerns have emerged as a key barrier to construction of solar farms, wind turbines, power lines and lithium mines that would supply electric-car batteries. Lawsuits and protests from conservation activists, Native American tribes and rural residents are poised to slow or block a growing number of projects.

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As far as Donnelly is concerned, the geothermal industry has a “dirty little secret,” which is that its facilities frequently dry up hot springs. He pointed me to a 2000 research paper from the U.S. Geological Survey concluding that when geothermal plants are built, impacts to nearby water features such as hot springs, geysers and steam vents “should be viewed as the rule, rather than the exception.” The paper cited several decades-old examples involving Nevada plants since acquired by Ormat.
“There’s this huge body of peer-reviewed literature,” Donnelly said.
When I asked Ormat’s Thomsen about that literature, he told me the geothermal plants cited in the research paper used an older technology that the company has phased out at most of its facilities. As for Dixie Meadows, he told me Ormat’s flow testing found no direct connection between the deep geothermal reservoir and shallower springs that he said feed the wetlands.
He also noted that Ormat recently reduced the plant’s proposed size from 60 megawatts to 12 megawatts, and that the company agreed to extensive real-time monitoring to ensure the wetlands aren’t affected. He said the monitoring would cost roughly $1.5 million a year during the geothermal facility’s operation, adding to a likely construction cost of around $60 million.
Federal officials, Thomsen said, failed to take those factors into account before protecting the Dixie Valley toad last year.
“We support the Endangered Species Act,” Thomsen said. “We want it to be implemented properly.”
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An Interior Department spokesperson declined to comment on Ormat’s 60-day notice warning of a potential lawsuit.
But in its species assessment of the Dixie Valley toad, Interior’s Fish and Wildlife Service cited research that it said showed the springs feeding Dixie Meadows “are not hydraulically isolated from the underlying geothermal reservoir.” As a result, the toad’s wetland habitat “can be impacted by production pumping and/or injection for the geothermal project,” the agency wrote.
Donnelly, meanwhile, pointed me to data showing that temperatures and water levels increased in one spot at Dixie Meadows after Ormat finished flow testing — a possible indication of underground hydraulic links that could put the toad at risk.
“The toads have this incredibly delicate relationship to temperature,” Donnelly said. “If you start cooling off those springs, they might all freeze to death. And if you start heating up those springs, they might all boil to death.”
Asked about the temperature and water level changes, Ormat’s senior legal counsel, Laura Jacobsen, told me via email that small amounts of data from a single spring are “far from sufficient to establish the flow test impacted the springs,” especially with temperature readings “within the variable baseline range for that spring.” The company also pointed me to a Bureau of Land Management document concluding that flow tests “indicate little to no observed changes in spring discharge conditions.”
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I’ve been shining a light on similar battles across the region through The Times’ Repowering the West series. I’m now writing Part 3, dealing with solar sprawl in southern Nevada. Next month I’ll travel to Idaho to report Part 4, about why the red state’s dominant power company set a goal of 100% clean energy even when lawmakers haven’t ordered it to do so.
In the meantime, Dixie Meadows is far from the only geothermal conflict I’m tracking. Another project contemplated by Ormat could be built just outside Gerlach, a Nevada town best known as the gateway to the Burning Man art and music festival. Local residents and Burning Man leaders are fighting to block exploratory drilling, saying a geothermal plant could industrialize their rural outpost and scare off tourists. The San Francisco Standard’s Maryann Jones Thompson wrote about the controversy.
I was also struck by a recent study from the U.S. Geological Survey, funded in part by Ormat, finding that populations of greater sage-grouse — an iconic Western bird known for its mating dance, and a prime example of the extinction crisis — “declined substantially in years following the development of the geothermal energy plants” in Nevada, as the Geological Survey described the study. The agency has built a mapping tool that it says can help companies find low-impact spots to build geothermal plants.
“It’s great that they’ve developed a tool that can identify areas that are more or less sensitive,” Ormat’s Thomsen said.
Ultimately, that’s what it’s going to come down to: finding the best places to put renewable energy. It’s as true for small-footprint geothermal plants as it is for sprawling solar farms, vast fields of wind turbines and lengthy power lines.

A person could wonder if the first step in renewable energy buildout would have been to work with companies to identify sites with less potential for wildlife and Indigenous concerns. Rather than set targets, make assumptions, fund companies, and when they are far down the road, say “oops, not there.”

Seems like we might have done better by making sure top-down determinations of what should be done with renewable energy installations are actually viable in the real world.

Biden Admin Via Forest Service Approves Land Swap for Rio Tinto’s Arizona Mine

March 22, 2023 by Sharon

Copper core samples at Resolution’s processing facility. Photo by the NY Times.

Sometimes the Biden Admin goes with the interests of Indigenous groups and other times it seems to go against them. I wonder what we can see if we examine the pattern of what one might call the “flouts and touts” of various policies and reverse-engineer what interests might be calling the shots at what point in time. When- what kinds of projects, where, do they flout? When do they tout? Can we see flouting and touting in stories of various media outlets? And of course, if Indigenous groups disagree, how is that considered and reported? How does the Admin consider the opinions of elected Tribal officials versus other Tribal groups when they seem to be in conflict?

We can’t be sure that the Rio Tinto case is a flout, since we’re not sure whether the President could do anything differently.

Another interesting thing about this case is that the opponents are a group called Apache Stronghold, “a nonprofit group comprised of members of the San Carlos Apache Tribe and others” and they are supported by people for religious liberty (the Becket Fund), which is another interesting twist on the issue. For those interested, that group is a conservative nonprofit, according to the NY Times.

Here’s a link to yesterday’s Reuters story.

– The U.S. Forest Service plans to re-publish an environmental report before July that will set in motion a land swap between the U.S. government and Rio Tinto (RIO.L)(RIO.AX), allowing the mining giant to develop the controversial Resolution Copper project in Arizona.
The move would be the latest blow to Native Americans who have long opposed the mine project, which would destroy a site of religious importance but supply more than a quarter of U.S. copper demand for the green energy transition.
The complex case centers around a land swap approved by Congress in 2014 that required an environmental report to be published, something the Trump administration did shortly before leaving office. President Joe Biden then unpublished that report in March 2021 to give his administration time to review the Apache’s concerns, though he was not able to permanently block the mine.
Meanwhile, Apache Stronghold, a nonprofit group comprised of members of the San Carlos Apache tribe and others, sued to prevent the transfer of the federally-owned Oak Flat Campground, which sits atop a reserve of more than 40 billion pounds of copper, a crucial component of electric vehicles. Several courts have ruled against the group.
Joan Pepin, an attorney for the Forest Service, told an en banc hearing of the 9th U.S. Circuit Court of Appeals on Tuesday that “the prediction for that (new environmental report) is to be ready this spring.”
The Forest Service is not waiting for the court’s ruling to publish the new report, Pepin said, adding that the agency does not believe an 1852 treaty between the U.S. government and Apaches gives Native Americans the right to the land containing the copper.
“This particular treaty is just a peace treaty. It doesn’t settle any rights to land and it doesn’t create any land rights,” Pepin told the court.
The 11 judges at the hearing questioned all sides about the legal concept of substantial burden and whether the government can do what it want with federal land, even if it prevents some citizens from fully exercising their religious beliefs. A full ruling is expected in the near future.
Wendsler Nosie, who leads the Apache Stronghold, said at a rally after the hearing that Pepin’s statements showed Biden – who controls the Forest Service – has not made opposition to the mine a “priority” for his administration.
“It’s not over. It’s just made us stronger, tougher, and deeply committed to our prayers,” Nosie said.
A Rio spokesperson said the company is closely following the case and respects the legal process, but believes “that settled precedent supports” the rejection of Apache Stronghold’s claims by a lower court. Rio has said it will smelt copper from the project inside the United States.
Representatives for the San Carlos Apache tribe were not immediately available to comment, nor were representatives for BHP, which is helping Rio develop the mine.

One wonders whether the Tribe itself has a position, or whether they are staying out of it. If individual members don’t agree what does that mean? As an earlier New York Times story reported

There are differing opinions on the merits of mining even on the San Carlos Apache reservation. Some people view the mine as an affront to their traditions, while others consider it an economic opportunity and a source of employment.

. There’s a lot of detailed context in that story.

I think this is also an interesting angle.. “President Joe Biden then unpublished that report in March 2021 to give his administration time to review the Apache’s concerns, though he was not able to permanently block the mine.”

Despite some organizations that blame Biden for not shutting down oil and gas leasing aka “living up to his promises” he does have to operate within legal boundaries.
Perhaps he can’t due to something related to the 1872 Mining Law. Does anyone know?

Finally, a shout out to all the FS employees working on this project!

What Aspects of Wolf Management are the Responsibility of the Forest Service? Potential CBD Lawsuit

March 22, 2023 by Sharon

Thanks to the non-paywalled Cowboy State Daily...here’s the link.

Wolves that cross the border from Colorado into Wyoming may be shot on sight, and it’s up to the U.S. Forest Service to stop it, an environmental group claims.
The Center For Biological Diversity plans to file a lawsuit against the Forest Service in U.S. District Court unless the agency steps up to protect the wolves. That’s what the group claims in a letter sent to USFS and U.S. Department of Agriculture officials. The Forest Service falls under the USDA’s jurisdiction.

The possible lawsuit may initially seem like a legal dead end, because the Forest Service doesn’t manage wolves.
The Wyoming Game and Fish Department has jurisdiction over wolves in Wyoming, and the Colorado Parks and Wildlife Department is primarily in charge of the growing wolf population in that state.
But the Forest Service does have authority to shut down wolf hunting in its jurisdiction – and indeed already has shut down prairie dog shooting in parts of Wyoming, the Center for Biological Diversity claims in its letter.
In the case of wolves, the group argues that the Forest Service should declare a no-kill zone on the Medicine Bow-Routt National Forest, headquartered in Laramie.
Center for Biological Diversity attorney Collette Adkins told Cowboy State Daily on Thursday that she couldn’t discuss the pending case in detail. However, she affirmed the group’s stance on the Forest Service having authority to stop hunting in some instances.
“That’s not a question at all, and forest supervisors do that regularly for various reasons, including for protecting an endangered species,” she said.

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Despite not having any wildlife management authority in Wyoming, the Forest Service still has authority to ban the killing of wolves on the Medicine Bow-Routt National Forest, thus giving them at least some degree of protection, the Center for Biological Diversity claims.
The agency has been negligent in that regard, the group says.
“The U.S. Forest Service has not issued any orders to close wolf hunting or trapping or otherwise protect wolves on the Medicine Bow-Routt National Forest,” the group’s letter states. “Nor does the Land and Resource Management Plan for the Medicine Bow-Routt National Forest have any standards or guidelines aimed at conserving wolves.
“In fact, the Forest Plan, developed in 2003, includes no mention of wolves at all.”

I wonder if that’s because there were not wolves there then?

Here’s the FS side on the prairie dog shooting question..

The Forest Service has shut down prairie dog shooting and should be able to do the same for wolves, the Center for Biological Diversity argues.
“As just one example of the Forest Service’s use of this authority to prohibit hunting, the Forest Supervisor has ordered a seasonal closure of prairie dog hunting on Thunder Basin National Grassland,” the letter states. “The Forest Service’s authority to restrict hunting on national forests has been repeatedly confirmed in the courts.”
Forest Service spokesman Aaron Voos recently told Cowboy State Daily that the agency implements seasonal closures of prairie dog shooting in some parts of the national grassland.
However, that’s not to protect the burrowing critters from being shot. Rather, it’s to protect raptors and other wildlife that feast on perforated prairie dog carcasses from getting lead poisoning from bullet fragments.