Today’s Key Takeaways: New report proves that environmental NGOs are actively and intentionally stalling energy and public lands projects – averaging over four years of unnecessary delays. Biden considers more restrictions in NPR-A. Five Senate Dems vote to support Ambler Access Project. Democratic platform is big on climate action, down on fossil fuels.
NEWS OF THE DAY:
Breakthrough Institute Report – NEPA Reform
Breakthrough Institute analysts, in collaboration with legal experts at Holland & Knight, compiled and analyzed 387 NEPA cases brought to the U.S. appellate court system over the 2013-2022 period and categorized them by project type, environmental review, length of judicial review, federal agency, and plaintiff. Our results indicate that NEPA litigation overwhelmingly functions as a form of delay, as most cases take years before courts ultimately rule in favor of the defending federal agency.
As Congress deliberates reforms to NEPA, it is essential that policymakers recognize the degree to which the legal status quo prioritizes procedure over outcomes. To enable more effective environmental review, reforms should minimize the potential for extended, unproductive legal battles while still promoting the fair assessment of environmental impacts.
Key findings:
- Between 2013 and 2022, circuit courts heard approximately 39 NEPA appeals cases per year, a 56% increase over the rate from 2001 to 2015.
- Agencies won about 80% of the 2013-2022 appeals cases, 11% more per year than from 2001 to 2004, 8% more than from 2001 to 2008, and 4% less than from 2009 to 2015. The rate at which agencies’ reviews are upheld is high, meaning these environmental reviews are seldom changed as a result of litigation.
- On average, 4.2 years elapsed between publication of an environmental impact statement or environmental assessment and conclusion of the corresponding legal challenge at the appellate level. Of these appealed cases, 84% were closed less than six years after the contested permit was published, and 39% were closed in less than three.
- Among the challenges, 42% contested environmental impact statements, and 36% contested environmental assessments. Agencies won about 80% of challenges to both.
- NGOs instigated 72% of the total challenges. Of those, just 10 organizations initiated 35% and had a success rate of just 26%, merely 6% higher than the average for all types of plaintiffs.
- Only 2.8% of NEPA litigations pertained to agency assessment of environmental justice issues.
- Public lands management projects were the most common subject of litigation (37%), the greatest share of which (47%) challenged forest management projects. Just 10 groups filed 67% of the challenges to forest management projects and collectively won only 23% of those cases, adding 3.7 years on average to the process of implementing the 77% of projects on cases they lost.
- Energy projects were the second most common subject of litigation (29%). Litigation delayed fossil fuel and clean energy project implementation by 3.9 years on average, despite the fact that agencies won 71% of those challenges. NGOs filed 74% of energy cases, with just 10 organizations responsible for 48% of challenges.
OIL:
Biden Administration Mulls More Alaska Drilling Protections
Valerie Volcovici, Reuters, July 15, 2024
The Biden administration is seeking input on whether to add more areas for protection from oil and gas drilling in Alaska’s National Petroleum Reserve, the Interior Department’s Bureau of Land Management announced on Friday.
The BLM will take public comment on whether to update protected areas in the Western arctic, including whether to create new protected areas and modify the existing boundaries of the NPR-A.
“With the rapidly changing climate, the Special Areas are increasingly critical to caribou movement and herd health, as well as other wildlife, migratory birds, and native plants,” BLM Director Tracy Stone-Manning said. We want to hear from the public to ensure we are managing the western Arctic’s significant resource values in the right ways and right places.”
Earlier this month, the state of Alaska filed a lawsuit challenging new federal regulations imposed for oil and gas leasing in the NPR-A in April.
The regulations had blocked development on 40% of NPR-A to protect wildlife habitat and indigenous communities’ way of life but did not affect existing oil and gas operations.
The NPR-A is a 23 million-acre (9.3 million hectare) area on the state’s North Slope that is the largest tract of undisturbed public land in the United States.
The comment period will last 60 days.
MINING:
Senate Dems vote against Interior on Alaska mining road
Hannah Northey, E & E News, July 11, 2024 (subscription required)
A group of Senate Democrats broke with the Biden administration last month to push approval of a contentious mining road in Alaska. It may have been a mistake.
The Senate Armed Services Committee — during a closed-door markup — attached an amendment from Sen. Dan Sullivan (R-Alaska) to its fiscal 2025 National Defense Authorization Act favoring the Ambler road. The panel released vote tallies this week.
Five Democrats and two independents who caucus with Democrats joined Republicans in moving to reverse the Interior Department’s decision to block the 211-mile-long project, which would cut through the Brooks Range and the Gates of the Arctic National Park and Preserve. Opponents have expressed concern about salmon and caribou populations.
Sullivan said last month the amendment would force Interior to find a “viable path” for the roadway and would not hurt Alaska Native lands.
POLITICS:
Democratic platform bullish on climate action, down on Big Oil. E&E News. The Democratic National Committee is crafting a platform that focuses heavily on addressing climate change, fighting fossil fuel interests, and accelerating clean energy development. A draft of the document, obtained by POLITICO over the weekend, not only presents the Democrats’ agenda for governing. It also repeatedly questions former President Donald Trump’s policies.
From Energy In Depth, Morning News, July 15, 2024