Monday was the deadline for public comment on the State Department's draft Environmental Impact Statement (EIS) on the Keystone XL Pipeline. Mine, which I submitted with the support of two of my University of Nebraska colleagues, are here. The State Department had initially announced that it would take the unusual path of refusing to make all of the comments available to the public absent a Freedom of Information Act request, but after a storm of criticism, the Department has reversed its decision to play hide and seek and now promises to post them all on a website.
Meanwhile, the Environmental Protection Agency has released its comments, which are extremely critical of the State Department's analysis of the project's effect on climate change and its failure to consider alternative pipeline routes that avoid critical water resources. The EPA's comments, together with the outpouring of opposition from environmentalists and others, could well carry the day on the merits, persuading the President to reject the project as contrary to the national interest. At minimum, they will serve as fodder for subsequent litigation against the construction of the pipeline, if it's approved.
The EPA is hardly alone in its criticism. In my comments, I focused on several problems with the State Department's analysis. I write that the draft EIS failed to comply with the requirements of the National Environmental Policy Act (NEPA), a law that requires federal agencies to evaluate the harmful environmental consequences of their actions and to consider ways to carry out those actions so that they mitigate or avoid such consequences.Full text
Visual images of burning rivers, oil-soaked seagulls, and other grossly contaminated resources spurred the enactment of the nation’s foundational environmental laws in the 1970s, including the Clean Water Act (CWA). Similarly, evocative prose like Rachel Carson’s description of the “strange blight” poisoning America’s wildlife due to widespread use of pesticides played a critical role in alerting policymakers and the public to the need for robust legal protections for public health and the environment.
Environmental law, however, has always been about more than just repairing the damage wrought by past disasters or resource mismanagement. Senator Edmund Muskie, the principal sponsor of the CWA, was moved to action not only by the despoliation he witnessed but also by “[t]he beauties of nature . . . in almost pristine form” he marveled at while growing up.
The reasons to mandate the improvement of inferior quality natural resources are relatively obvious, and include ensuring that exposure to, or use of, those resources does not adversely affect human health, destroy critical wildlife or fish populations, or otherwise disrupt ecosystem functions. By contrast, no single goal explains legal mandates to prevent degradation of superior quality resources. Instead, antidegradation programs in the CWA and in other environmental laws rest on a variety of rationales, including the desire to protect special or unique resources, to provide a margin of safety to offset the risk that regulations will not provide enough protection due to imperfect knowledge or flawed regulatory implementation, to prevent the movement of industry to areas with superior environmental quality but more lenient requirements, to prevent interstate pollution, and to preserve opportunities for future generations and future growth.Full text
Today’s post, co-authored by CPR Member Scholar Sandra Zellmer and Policy Analyst Yee Huang, is the fourth in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties. Each month, this series will discuss one of these ten treaties. Previous posts are here.
Biodiversity is the range of variations in all forms of life, from the genetic level to the species level to the ecosystem level. This diversity of life sustains all processes on the planet, built up over the several billion years of the planet's existence. It has intrinsic as well as aesthetic, cultural, and spiritual values, and an economic value too. The diversity of plants and animals has contributed to more nutritious diets, an increased human lifespan, and treating treatable illnesses. Economists estimate that humans derive trillions of dollars’ worth of ecosystem services such as water retention and filtration from wetlands, air purification from trees, and agricultural productivity from healthy soils. Losing biodiversity means a devastating loss for current and future generations.
At present, 60 percent of the world’s ecosystem services are being degraded or over-exploited. According to the Millennium Ecosystem Assessment, the situation “could grow significantly worse during the first half of this century.” To combat the loss of biodiversity and ecosystem services, conservation strategies at the local or national level are nowhere near sufficient. It’s a global problem, and international partnerships are essential to addressing it.
By the mid-1980s, the need for broad international cooperation to safeguard the biodiversity of all animal and plant species and their habitats had become apparent. The United States led the effort to get the Convention on Biological Diversity (CBD) off the ground and into the diplomatic arena. For nearly a decade, the United States continued to work in support of the CBD through several different administrations of both political parties.
The three primary objectives of the CBD are to conserve biodiversity, to use biodiversity in sustainable ways, and to access and share the benefits (such as new pharmaceuticals) from biological resources. The CBD strives to meet these goals by having the parties to the treaty integrate conservation and sustainable use into their decision-making processes to avoid or at least minimize adverse impacts to biodiversity. Parties retain discretion in determining how to do this, and the CBD explicitly states that they should use “customary and local efforts as appropriate.”Full text
Last month, President Obama denied TransCanada’s permit application for the Keystone XL pipeline because a congressionally mandated deadline did not allow enough time to evaluate the project once Nebraska completed its analysis for re-routing of the pipeline around the Sand Hills.
A January 26-29 poll from Hart Research Associates found that, after hearing arguments for and against the pipeline, 47% of voters in four Presidential battleground states polled agree with President Obama’s decision while 36% disagree with it. Yet just this week, the U.S. Senate is considering whether to add language to an unrelated highway authorization bill to force the President to approve the Keystone XL tar sands pipeline.
The pipeline rider has the backing of 44 Republicans and one Democrat in the Senate. Passing it is a bad idea on several levels. For one thing, riders like this one short-circuit the congressional process. By inserting an unrelated substantive provision like this into an authorization or appropriation package, the provision doesn’t receive the scrutiny that it would if it were forced to stand on its own, and Senators who are against the pipeline might feel compelled to vote in favor of the package because it includes other benefits for their constituents. (For this reason, many state constitutions forbid appropriations riders, but the federal constitution does not.) For more on this see my article Sacrificing Legislative Integrity at the Altar of Appropriations Riders: A Constitutional Crisis.Full text
The Nebraska Legislature is in a special session currently to consider five bills concerning the proposed Keystone XL pipeline. The situation was shaken up by Thursday’s announcement from the Obama Administration that it was pushing back its decision on federal approval of the pipeline. This news may take away some urgency for the Nebraska Legislature, but considering that no options (including the original proposed route) have been taken off the table, the bills remain firmly relevant. Nebraska—and any other states that lack regulations for protecting state interests from the effects of oil pipelines—should move forward despite measures that may (or may not) be undertaken by the federal government on the Keystone XL pipeline.
This afternoon the full Nebraska legislature will begin debate on one of the bills currently under consideration, LB4, which would provide state authority to approve or reject pipeline routes within Nebraska. Specifically, a panel appointed by the Governor—to include the DEQ, the Public Service Commission, the Department of Natural Resources, and representatives from landowner groups and others—would determine whether the proposed pipeline route imposes unacceptable risks on the state’s natural resources, based on six statutory criteria designed to ensure that pipeline routes comply with the state’s Ground Water Management and Protection Act, its Nongame and Endangered Species Conservation Act, and other conservation oriented objectives (the criteria are specified in Section 7 of the bill).
TransCanada has made a number of arguments against the bill and others like it, including saying it is preempted by federal law, that it violates the dormant commerce clause of the Constitution, and that requiring pipeline rerouting would be a “taking” in violation of the Fifth Amendment.
Last week I testified before the legislature’s Natural Resources Committee, arguing that a similar bill, LB1, passes Constitutional muster. (The primary difference between LB1 and the bill currently pending before the full legislature, LB4, is that LB1 gave authority to the Public Service Commission rather than a gubernatorial panel.) I believe that these bills are not just Constitutionally sound, but good policy: the exercise of state sovereignty over land use, soil and water conservation, and aesthetics is an important element of a viable federal-state partnership. Here are some of my responses to the critics:Full text
This post was written by CPR Member Scholar Sandra Zellmer and John H. Davidson, an emeritus professor of law at the University of South Dakota. It appeared first in the Omaha World-Herald.
As the Missouri River nears the 500-year flood mark, we sympathize with those whose homes and businesses are flooded. And we recognize that it’s natural for the afflicted to cast blame on a scapegoat — a practice as old as recorded history. But those who blame the flooding on the U.S. Army Corps of Engineers’ efforts to conserve native wildlife species are deeply misinformed.
First, there is no legal basis for pointing fingers in this direction. The Flood Control Act of 1944 — the statute that authorized the big mainstem dams in North and South Dakota — prioritizes flood control and navigation. The Act also authorizes operations that benefit wildlife and, when it comes to listed species, the Endangered Species Act (ESA) requires federal agencies to avoid jeopardizing species.
In operating the dams, the Corps is bound by both Acts. But the Corps has been whipsawed by lawsuits brought by both upstream states, which want to maintain high water levels in the spring to enhance the walleye fishery, and downstream states, which demand high summer and fall water levels to support the commercial navigation season and to cool their power plants. The corps’ management of the river has had far more to do with the demands of the states than the demands of tern and plover.Full text
My family has gotten a lot smaller lately. My mother died in 2004, my father in 2007, and my uncle in 2008.
I’ve done the five stages of grief, as introduced by Elisabeth Kübler-Ross in 1969, but not exactly as she described. It’s true that I initially felt denial: “I’m a lucky person; this can't be happening.” Then I was angry and felt sorry for myself. Then, at least during my mother’s struggle with pancreatic cancer, I hit the bargaining table. Mom was a Sunday school teacher when I was little, so I pleaded with God: “Please let the diagnosis be wrong, please let the chemo work, please don’t let the good die young.” To hedge my bets, I occasionally promised, “if she can beat the odds, I’ll volunteer at the local cancer center and I’ll donate my life savings to research.” It didn’t work. In less than four months, she was dead.
Depression crept in, and this stage held me in its grip for a long time. I gained acceptance a year or two after my mother’s death—she would’ve wanted me to—but this stage eluded me with the loss of my father and my uncle. Now, I’m just angry. Outraged, in fact.
My father had stomach cancer. My uncle had prostate cancer. Both were farmers.Full text