State Department releases EIS on Keystone XL pipeline

The proposed Keystone XL pipeline is one step closer to President Barack Obama’s desk, as the U.S. Department of State released Friday a final environmental impact study on the controversial project.

The Keystone XL pipeline would transport up to 830,000 barrels of oil per day from Morgan, Mont. to Steel City, Neb. About 85 percent of the oil would come from tar sands that extend across Manitoba, Saskatchewan, British Columbia and, especially, Alberta.

The process of removing that oil from tar sands and its use as an energy source could add as much as 93 million metric tons of carbon dioxide to the atmosphere each year, according to a Dec. 2013 report by the Stockholm Environment Institute.

A July 2013 report by the Natural Resources Defense Council concluded that, during a 50-year period, the pipeline could cause at least 1 billion more metric tons of the greenhouse gas to be pumped into the atmosphere than would be discharged without it.

The EIS indicates that the State Department, at least, does not concur with opinions that the Keystone XL project will cause an increase in global warming.

“Approval or denial of any one crude oil transport project, including the proposed project, is unlikely to significantly impact the rate of extraction in the oil sands or the continued demand for heavy crude oil at refineries in the United States based on expected oil prices, oil-sands supply costs, transport costs, and supply-demand scenarios,” it says.

The question is a crucial one because Obama has said that he will not approve Keystone XL if its construction would add to the problem of climate change.

The rest of the oil that would be transported by the pipeline would be drawn from the Bakken Shale Formation in western North Dakota.

Environmental advocacy organizations wasted little time before calling on Obama to reject the pipeline.

“Even though the State Department continues to downplay clear evidence that the Keystone XL pipeline would lead to tar sands expansion and significantly worsen carbon pollution, it has, for the first time, acknowledged that the proposed project could accelerate climate change,” Susan Casey-Lefkowitz, the international program director for Natural Resources Defense Council, said in a statement. “President Obama now has all the information he needs to reject the pipeline.”

The publication of the EIS is the latest step in an odyssey that has lasted for nearly six years. President Obama rejected the developer’s first permit request in 2011 because of concerns about the impact on Nebraska’s Sand Hills and its underlying aquifer. The proposed route was later changed, which necessitated both a new permit application and a new environmental impact review of the project.

A 2004 executive order by former President George W. Bush requires a presidential permit for oil and gas facilities that cross U.S. international borders.

The release of a supplemental environmental impact statement triggers a 30-day comment period, which will commence on Feb. 5. Once the deadline for submission of those comments passes, secretary of state John Kerry will make his recommendation about whether the White House should grant the presidential permit required to build the trans-national conduit for oil extracted from Canada’s tar sands.

A coalition of environmental groups argued, in a Jan. 29 letter to Kerry, that the State Department needs to consider the cumulative climate change impacts of both the Keystone XL pipeline and the expansion of the nearby Alberta Clipper pipeline. That project would,if expansion is approved, carry about 880,000 barrels of crude per day. An amendment to an existing presidential permit is required for Enbridge, Inc., the developer of both pipelines, to increase the Alberta Clipper’s capacity.

Construction of the southern half of the pipeline, which will carry oil from Cushing, Okla. to the Gulf of Mexico coast, has recently been completed.

Federal appeals court rejects U.S. plan for oil drilling in Chukchi Sea

The Obama administration’s plan to extract billions of barrels of oil from Arctic seas off the northwest coast of Alaska hit a roadblock in federal court last week.

The federal appeals court in San Francisco ruled Jan. 22 that the U.S. Bureau of Ocean Energy Management, Regulations, and Enforcement’s ‘s environmental impact study was flawed because it assumed a production level far lower than the potential oil production from the project.

The case centers on a lease sale advanced by the administration of President George W. Bush. Called Lease Sale 193, the 2008 decision affects about 30 million acres of the marine region, an area larger than Pennsylvania.

The sale of 487 exploration leases in Lease Sale 193 produced more than $2.6 billion in revenue for Washington, with about $2.1 billion of that coming from Royal Dutch Shell, one of the world’s largest energy companies.

Opponents of the BOEM plan to allow drilling in the area point to the risks it poses to the region’s diverse wildlife.

“The melting Chukchi Sea is no place for drillships,” Rebecca Noblin, the Center for Biological Diversity’s Alaska director, said in a statement. “It’s a place where polar bears hunt for ringed seals, where walruses socialize and bowhead whales make their way to rich feeding grounds.”

The opponents, who include 12 conservation groups, one native Alaskan advocacy organization, and one native Alaskan village, argued that, by underestimating the amount of oil that could be extracted from the area if drilling occurred, BOEM was risking a huge oil spill that would devastate that pristine area.

“This mistake means that the EIS gives only the best case scenario for environmental harm,” Eric Grafe, an attorney with the public interest law firm Earthjustice, said. “All is based on the number of barrels produced. If they get the number wrong, they understate all those other impacts.”

Grafe said that, even if only 1 billion barrels of oil were produced in the area that is subject to the oil lease sale, there would be a 40 percent chance of an oil spill.

“Because it’s so remote and so inaccessible, the assumption is that you’d have to find a significant amount of oil to justify the infrastructure that would have to be put in,” he said. “Right now there’s nothing. No roads, no pipelines. It’s a pristine area. It’s precisely because of that absence of infrastructure that it’s so risky to drill there. If there is an oil spill, you’re not going to have the resources to respond to that oil spill and you can’t clean it up in an icy environment anyway.”

The federal appeals court panel that heard the case agreed that the government’s reliance upon an estimate of 1 billion barrels of oil caused its study of environmental impacts from the drilling activity  to be flawed.

“In the case before us, BOEM was fully aware from the very beginning that if one billion barrels could be economically produced, many more barrels could also be economically produced,” Judge William Fletcher, the lead author of the appellate panel’s opinion, wrote.

There may be as many as 15 billion barrels of oil that are economically viable to extract beneath the Chukchi Sea, according to 1 2011 BOEM analysis.

Environmentalists also point to the contribution to ongoing climate change that extracted oil would make.

“We can’t afford to burn the oil found there,” Grafe said. “We shouldn’t be getting more oil out to burn it if we are going to stay within climate change parameters.”

Shell commenced drilling in the Chukchi Sea in 2012 but experienced numerous problems. A  March 2013 report by the U.S. Department of Interior concluded that Shell committed a series of logistical and planning blunders in connection with its Lease Sale 193-related activities in the Arctic.

“They screwed it up really badly,” Grafe said. “Here’s a company saying ‘we’re ready to drill, we can do it safely’ and it’s a giant fiasco. Nothing goes right.”

Among those problems:

* a containment dome used to prevent the spread of oil spills that was being tested in Puget Sound was “crushed like a beer can,” according to a U.S. Department of Interior official who observed the test;

* a drill ship called the Noble Discoverer slipped anchor and nearly ran aground in Dutch Harbor, AK, then had to quickly be moved from Shell’s exploration site in the Chukchi Sea because an ice storm was rapidly approaching;

* U.S. Coast Guard inspectors found a litany of maritime regulation violations on the vessel and later referred its findings to the U.S. Department of Justice;

* the Noble Discoverer later caught fire and exploded while in port in the Aleutian Islands; and

* another drilling ship, the Kulluck, broke free of a tow and ran aground in Kodiak, AK in Dec. 2012. Shell was trying to move the ship to Seattle to avoid paying Alaska property taxes on vessels used for oil and gas exploration.

“Doing that in the winter when there’s lots of storms in the Gulf of Alaska is risky,” Grafe said. “But they did it.”

The incident involving the Kulluck drill barge remains under investigation by the U.S. Coast Guard.

Under the Outer Continental Shelf Lands Act of 1953 the U.S. Department of Interior has authority over oil and gas exploration and extraction on submerged lands along the country’s coasts. That cabinet department, in turn, includes a specialized agency – BOEM – to handle leasing of the submerged lands for oil and gas development activity. BOEM used to be known as the Minerals Management Service. The Obama administration changed its name in 2010, following the oil spill in the Gulf of Mexico.

The Chukchi Sea lease sale dispute will now go back before a U.S. district judge in Alaska. He will decide whether the holders of oil leases in the Chukchi Sea can proceed to drill after a modified environmental impact statement is prepared or whether the lease sales should be voided altogether.

Judge Ralph Beistline had previously rejected BOEM’s environmental impact statement in a 2010 decision. Later, after the Obama administration made changes to the EIS and proceeded with Lease Sale 193, Beistline upheld that decision. It was that 2011 order that was reversed by the Ninth Circuit last week.

Grafe said that the appeals court’s opinion gives BOEM time to decide whether to abandon the Chukchi Sea leases.

“They could put out a draft EIS and, while they’re doing that process to get a more accurate assessment, not allow any activities to happen on those leases,” he explained. “At the end of that EIS process, when we have a document that more accurately informs the public about the risks, they can reconsider the decision about whether the leases should be there.”

Grafe was referring to an environmental impact statement, which is the study of the environmental impacts likely to result from a “major federal action,” such as marine oil leases, mandated by the National Environmental Policy Act of 1969.

Shell announced this week that it would not attempt to drill in the Chukchi or Beaufort Seas this year.

The case is Native Village of Point Hope v. Jewell, No. 12-35287.

Chukchi Sea ice - photo courtesy NOAA - photo by Karen E. Frey Beluga whale pod in Chukchi sea - photo courtesy NOAA, photo by Laura Morse Walruses in the Chukchi Sea - photo courtesy USGS

Kulluck aground - photo courtesy U.S. Coast Guard, photo by Petty Officer 3rd Class Jonathan Klingenberg

Top photo: Ice on Chukchi Sea (photo courtesy National Oceanic & Atmospheric Administration, photo by Karen E. Frey)

Second photo: Beluga whale pod in Chukchi Sea (photo courtesy National Oceanic & Atmospheric Administration, photo by Laura Morse)

Third photo: Walrus in Chukchi Sea (photo courtesy U.S. Geological Survey)

Fourth photo: The drill ship Kulluck aground in Kodiak, AK, Jan. 1, 2013 (photo courtesy U.S. Coast Guard, photo by Petty Officer 3rd Class Jonathan Klingenberg)

Federal appeals court okays effort to kill sea lions to save salmon

A federal appeals court has rejected an effort to prevent the National Marine Fisheries Service from killing California sea lions near Bonneville Dam as part of a program to conserve imperiled Pacific salmon species.

The decision likely brings to an end a dispute that has been ongoing since 2008. The administration of former President George W. Bush had authorized the states of Idaho, Oregon, and Washington to annually kill a maximum of either 85 sea lions or “the number required to reduce the observed predation rate to 1 percent of the salmonid run at Bonneville Dam.

The National Marine Fisheries Service granted the necessary permission based on a clause of the Marine Mammal Protection Act that allows killing of pinnipeds that interfere with the recovery of species included on the federal list of threatened and endangered species.

The Humane Society of the United States challenged the approval, arguing that NMFS had not adequately explained the basis of its decision that sea lions should be killed as an impediment to salmon conservation and that the agency had also failed to justify the maximum number of kills allowed.

In 2010 the U.S. Court of Appeals for the Ninth Circuit held that NMFS had not provided a sufficient explanation for its belief that a salmon predation rate of one percent should trigger section 120(a) of the MMPA. The opinion pointed to earlier federal government decisions that would allow fishers to take more of the population of protected Columbia River salmon each year than would sea lions.
The court also ruled in its 2010 decision that NMFS had not adequately explained why killing of sea lions would be permissible as an interference with salmon recovery when the agency was simultaneously willing to tolerate the killing of a greater percentage of the runs by hydroelectric dams and fishing.

The agency, upon reconsideration, limited the annual take of sea lions to 92 individuals per year and committed to a review of the decision to authorize the program after five years. NMFS also adopted a qualitative, as opposed to a quantitative, standard as justification for the kill authorization.

HSUS and the Wild Fish Conservancy filed another lawsuit against the program in March 2012. U.S. District Judge Michael Simon decided in May 2012 not to issue a preliminary injunction that would block NMFS from carrying it out. 

The Ninth Circuit, in an unpublished opinion announced Sept. 27, affirmed Simon’s ruling, holding that NMFS had complied with both MMPA and the National Environmental Policy Act.

Hatcheries and birds also kill more protected salmon on the Columbia River each year than do sea lions.

A 2012 report by the U.S. Army Corps of Engineers estimated that the annual toll of salmon lost to California sea lions at Bonneville Dam is about 0.6 percent of the run.

Photo courtesy Wikimedia.

Note: This article also appears at

Supreme Court dismisses only environmental law case on 2013-2014 docket

The U.S. Supreme Court might not have to decide soon questions relating to environmental law.

The justices dismissed on Monday the only case raising such questions that had been on its docket for next year.

In an unsigned, one-line order the Court vacated the judgment of the U.S. Court of Appeals for the Ninth Circuit in U.S. Forest Service v. Pacific Rivers Council and ordered the district court to dismiss the case on mootness grounds.

The Court’s action has alarmed some commentators.

Richard M. Frank, a University of California at Davis law professor, wrote on the respected Legal Planet blog that the order might reflect a belief by environmental advocacy organizations that they cannot get a fair hearing at the Supreme Court.

Frank explained that the plaintiffs in the case, including Portland-based Pacific Rivers Council, entered into an agreement with the United States government not to further challenge USDA Forest Service’s compliance with the National Environmental Policy Act in a dispute over planning of management actions on national forests in the Sierra Nevada mountains.

The Ninth Circuit rejected the 2004 planning effort on grounds that the Forest Service’s efforts did not properly account for the impacts of planned extraction and other activities on fish populations within the national forests in that region.

Historically, NEPA has not faired well in the Court. One analysis demonstrated that environmental groups have never convinced the Court to rule in their favor in a case arising under the law in its entire 44-year history.

Other environmental laws have also not fared well before the Court lately. During this year’s term the justices overturned two Ninth Circuit decisions that enforced the Clean Water Act.

Federal lawsuit challenges plan to expand Highway 101 through California redwoods region

Environmentalists have asked a federal court to block a controversial plan to straighten and widen a highway through a remote California state park so that large commercial trucks can have a direct route from southern California to Oregon.

The lawsuit alleges that the California Department of Transportation violated the National Environmental Policy Act and the Wild and Scenic Rivers Act when it approved the project, which will cause the destruction of some old-growth redwood trees in Richardson Grove State Park.

“We are determined not to let this protected grove of old-growth redwoods and the endangered species that depend on them be cut into for the sake of letting a few more over-sized trucks speed through the grove,” Peter Galvin, a spokesperson for the Center for Biological Diversity, one of the plaintiffs, said. “Caltrans should scrap this misguided project, which has been opposed by dozens of groups, local business owners, scientists, elected representatives and tens of thousands of concerned citizens.”

Up to 72 old growth trees could be killed as a result of construction activities that cut their roots. CalTrans acknowledged, in an environmental assessment, that “adverse effects to old-growth trees may be a significant impact to this unique natural community.” Nevertheless, the agency determined that the widening and re-alignment of U.S. Highway 101 would have “no significant environmental impact.”

Advocates for the road expansion say that increased access for trucks is necessary to improve economic conditions in remote Humboldt County.

The project was proposed in 2007. Smaller commercial trucks can already travel through the state park.

Large commercial trucks, on the other hand, are not permitted within the boundaries of the preserve. They must travel an extra 448 miles to make the trip between the San Francisco Bay area and the northern California town of Eureka. The additional mileage is caused by a detour into Oregon and then a return south.

Richardson Grove State Park provides habitat for a variety of endangered and threatened species, including the northern spotted owl, marbled murrelet, and several runs of salmon and steelhead.

The park is popular with tourists. The old-growth redwoods within its boundaries are among the few protected in the country.

The lawsuit is the second one against the project. A state court challenge was filed in June, alleging that the transportation agency violated California law.

U.S. Supreme Court denies review in three closely-watched environmental law cases

The New York Times and Greenwire are reporting that the U.S. Supreme Court has declined the chance to consider several lower court environmental law decisions that have been closely watched by both industry and environmentalists.

The biggest of the three cases involves the question whether farmers must obtain a permit under the federal Clean Water Act to use a pesticide even if they have already gained separate clearance under the Federal Insecticide, Fungicide and Rodenticide Act.

A federal appeals court in Cincinnati ruled last year that the U.S. government is obliged to require farmers to obtain both authorizations.

Forty members of Congress had urged the Supreme Court to hear the dispute.

In another case, the Supreme Court denied a request that it consider a case challenging the a decision by the U.S. Fish and Wildlife Service to designate a wildlife refuge in an area of Texas sought by the city of Dallas for water development.

The U.S. Court of Appeals for the Fifth Circuit ruled in March 2008 that the agency did not violate the National Environmental Policy Act.

Finally, the Court refused to hear a case in which an agricultural corporation sought compensation under the Fifth Amendment of the U.S. Constitution for revenue lost when federal officials forced it to destroy, or sell at low prices, eggs suspected of being contaminated with salmonella.

A lower court rejected the farming company’s claim that a “regulatory taking” occurred.

A decision by the Supreme Court to decline to review a case, an action technically known as a “denial of certiorari,” is not a statement by the Court about its view of the merits of the lower court’s opinion.