Climate Change – Water Policy Consulting LLC

Reversing Trump’s Environmental Policies Under a Biden Administration will be a Tall Order

This year’s presidential election was a close race in a handful of states. When the Associated Press announced that, for just the second time in 70 years, with the help from the Native vote, announced a decisive win for Democrat Joe Biden announced an ambitious Indian Policy as part of his campaign, over President Trump on November 7, 2020. This was partly due to record turnout throughout the country, including pivotal votes from Native Americans in key states. As of 2018, the state of Arizona alone which turned from red to blue this election cycle, members of federally recognized tribes made almost 6% of the population and the Navajo Nation alone contains around 67,000 eligible voters.

The question on everyone’s mind is whether a Biden win will end Trump’s war on the environment. If the democrats do not become the majority party in the senate, in order to stay on track with his environmental agenda, Biden will need to rely primarily on executive actions and essential legislative measures like tax reform, the federal budget and the Farm Bill. Just hours after the United States officially withdrew from the Paris accord, on the day after the election, for example, Biden announced that he would reverse that decision on the first day of his term in office.

During his candidacy, Biden also pledged to reverse several of Trump’s Alaska initiatives including drilling in the Alaska National Wildlife Refuge and issuing a permit to develop the Pebble Mine. Also, in relation to Alaska Native Tribes Biden plans to create a new division of the Justice Department that will focus on environmental and climate justice and to incorporate environmental justice throughout EPA programs.

The key will be how hard will the Trump administration push for completion of it’s resource extraction agenda before he leaves office on January 20. Although, The Trump administration recently issued a request to energy companies to identify what specific land areas in the Arctic National Wildlife Refuge should be offered for sale, this will be difficult due to the remaining environmental analysis, leasing logistics and the fact that global banks continue to adopt policies stating that they will not fund drilling in the Arctic due to climate change. And there’s also the fact that many of the Trump administrations decisions affecting BLM lands, including ANWR and the NPRA leasing were made by Scott Pendly who has been serving illegally as the Director of the Bureau of Land Management for the past 14 months.

Never one to let a small thing like the law get in the way of opening lands up to resource extraction activity however, Trump could simple move to put leases in ANWR and open up areas to mining, despite federal laws or even court orders to the contrary before leaving office. And then there’s the fact that Trump has not conceded the elections results to Biden and may not leave the Whitehouse at all.

Our Anti-Environmental President

Op-Ed by Jessica Shepherd

President Trump’s claim in September that he is “the number one environmental president since Teddy Roosevelt” is as ironic as it is galling. In truth, it would be more appropriate to call Trump the number one anti-environmental president of all time for his assault on the Environmental Protection Agency (EPA) and the greater environmental community.

Trump has consistently thumbed his nose at environmental protections by withdrawing the United States from the Paris Agreement, his ongoing attempts to reinterpret touchstone environmental laws like the Migratory Bird Act, and through his appointments of climate-change denier Scott Pruitt, and then coal and oil ally Andrew Wheeler to head the EPA.

Kowtowing to Trump, the EPA, in defiance of their name and mission “to protect human health and the environment”, has steadily given in to industry interests — waving away concerns about pesticides, reducing constraints on toxic emissions in our air and water, scrapping requirements for mining companies to set aside cleanup funds, and loosening stream-side dumping regulations on the coal industry. Moreover, Trump has signed off on watered down EPA regulations intended to limit greenhouse gas emissions by reducing fuel economy standards and doing away with limits on methane flaring for oil and gas production on public lands. And let’s not forget Trump’s push for oil and gas leasing here in Alaska with the opening of the Arctic Coastal Plain to drilling and expansion into previously off-limit areas in the National Petroleum Reserve.

Talking advantage of a dire situation, in March 2020, as the COVID-19 pandemic diverted our attention, the EPA suspended enforcement of environmental regulations on companies that were deemed unable to comply with emission standards due to the pandemic. At the same time, Trump signed an executive order scaling back the review process for new projects under the Clean Water Act and the Endangered Species Act.

Also, in March, the Department of Justice (DOJ) scraped the longstanding use of Supplemental Environmental Projects (SEPs) to fund environmentally beneficial projects. According to the EPA “A SEP is an environmentally beneficial project that a violator voluntarily agrees to undertake in settlement of a civil penalty action, as an option to offset some portion of the monetary penalty. One goal of the SEPs is to improve the environmental health of communities that have been put at risk due to the violation of an environmental law.” SEPs were frequently used by the EPA to promote energy efficiency and renewable energy. Examples include investments in local wind and solar power generation, retrofitting diesel-powered school buses with pollution control devices, the purchase of hybrid vehicles for a National Park, and funding for energy-efficient building technology for public buildings.

Thanks to the Trump Administration, the air we breathe now contains higher levels of mercury and other toxic particulate matter from vehicles and coal-fired power plants, and CO2 levels, despite a downturn at the start of the pandemic, are once again trending upward toward an ill-fated future. Faced with another four years of Trump, we’ll need to rename the EPA the “Environmental Destruction Agency” (EDA) and rewrite its mission to better reflect its new role in destroying human health and the environment.

Mind you, this is just an overview of Trump’s egregious environmental rollbacks.

If there is any good news, it’s that Trump has not been completely successful in his vendetta against established environmental safeguards. For example, his attempt to water down the Migratory Bird Treaty Act would have resulted in a reinterpretation of the law to apply only to the intentional killing of birds, laying blameless those whose actions cause the “incidental” killing of millions of birds annually through industrial activities like power line electrocutions, toxic tailing ponds, or the 2010 Deepwater Horizon oil spill that killed more than a million birds. A federal court overturned the policy revision in August of this year.

In contrast to Trump’s crusade against the environment, Joe Biden’s Build Back Better plan would invest in net-zero emissions while creating new, green energy jobs. His 110-page plan will benefit first those communities who have been most directly affected by environmental violations, especially communities of color and the Native community. The comprehensive plan promises to “take immediate action to reverse the Trump Administration’s dangerous and destructive rollbacks of critical climate and environmental protections.”

Last Stand for the Tongass

The Tongass National Forest, the largest national forest in the United States, is a landscape comprised of old-growth Sitka spruce, western hemlock, and red and yellow cedar. These mighty trees, along with innumerable glacially-fed streams and lakes, give rise to all five species of Pacific salmon, humpback whales, healthy black and brown bear populations, wolves, and omnipresent bald eagles. Located in southeastern Alaska, the 17 million acre Tongass is the size of West Virginia and home to 70,000 people, including the First Nation people of the Tlingit, Haida, and Tsimshian, and the city of Juneau, Alaska’s state capital. It is also the largest expanse of roadless wilderness in the national forest system, at least for now.

Protected by the 2001 Roadless Area Conservation Rule (signed into effect by President Bill Clinton), 55% of the Tongass, or 9.2 million acres, is off limits to road construction and timber sales. But, in January 2018, under Governor Bill Walker’s administration and with the backing of the Trump Administration, the State of Alaska petitioned the Secretary of Agriculture to consider exempting the Tongass from the Roadless Rule.

Under the federal National Environmental Policy Act, any consideration to exempt the Tongass from the Roadless Rule requires a 60-day public comment period and a scientific analysis of environmental impacts to the Tongas. The 60-day public comment period, conducted this summer, fell well short of its obligation according to tribal members who received last-minute notice of public meetings. In their opinion, the comment period “exemplifies the federal government’s long-running failure to adequately work with tribes.” In response, eleven southeast Alaskan tribes vested in the outcome of the upcoming ruling, filed a petition in July, requesting the USDA consult with tribes “on a government-to-government basis.” Earlier attempts by area tribes to engage in the two-year process were derailed because “the USDA repeatedly ignored their input and requests for in-person meetings; fast-traced seemingly arbitrary deadlines; and proceeded as usual despite a pandemic that has disproportionally hurt Native communities.”

The Final Environmental Impact Statement (EIS), was released on September 24, 2020 and analyzes six alternatives, including a no-action alternative. Trump-appointed USDA Secretary Sonny Perdue prefers Alternative 6 which “provides maximum additional timber harvest opportunities,” removing “all 9.37 million inventoried roadless acres on the Tongass from roadless designation.” Moreover, “Alternative 6 would revert a net total of 168,000 old growth-acres and 20,000 young-growth acres, previously identified as unsuitable timber lands, to suitable timber lands”. The Tongas will “continue to be managed by the Forest Plan and in accordance with applicable statutory instructions.” There is a 30-day waiting period following the release of the EIS prior to implementation to allow for review.

If you want to weigh in against opening up the Tongas, please see the following websites.

https://addup.sierraclub.org/campaigns/keep-alaskas-tongass-national-forest-roadless

https://act.nrdc.org/letter/tongass-forest-181004

Your voice matters.

Unflagging Opposition to Business-as-Usual Extraction Practices

With Present Trump rolling back one environmental policy after another, ongoing efforts to slow global warming, safeguard wilderness, and provide clean water and air can seem futile. But never doubt that a handful of thoughtful, committed lawsuits can change the world. Indeed, it may be the only recourse that can.

We need look no farther than the Gwich’in Native community for inspiration when it comes to fighting to protect the environment. For more than thirty years they have resisted attempts to open up the Arctic National Wildlife Refuge to oil and gas drilling. Under Trump’s plan to open lease sales across the entire coastal plain, that fight has kicked into high gear. For the Gwich’in, the coastal plain, birthing grounds for the Porcupine caribou herd which numbers approximately 200,000, is sacred ground. Their culture, history and way of life revolve around the caribou and the 1.5 million-acre expanse of coastal lands. Sarah James, Gwich’in elder, explains, “We have a special connection in that we are a part of the caribou and the caribou are part of us. It is our language, our songs, our dance…. We take care of the caribou, and in return, they take care of us, and that’s really important to my people here.”

The Gwich’in Sterring Committee, along with several other plaintives including Canada’s Yukon chapter of Canadian Parks and Wilderness Society, filed a lawsuit in late August, seeking to overturn Trump’s approval for oil leasing, and siting violations of the Alaska Native Claims Settlement Act and likely impacts to the Porcupine Caribou Herd.

A second lawsuit to halt oil leasing on the Refuge filed by The National Audubon Society, Natural Resources Defense Council, Friends of the Earth, and Center for Biological Diversity sight insufficient concern over increased greenhouse gas emissions and melting permafrost, poor air quality, and negative impacts to the region’s wildlife.

And most recently, a third lawsuit to overturn drilling in the Arctic National Wildlife Refuge was filed on September 9th with the U.S. District Court in Anchorage by attorneys general for 15 states and led by Washington and Massachusetts. The lawsuit states that drilling will contribute to global climate change and its effects such as sea level rise and extreme weather events.

A number of other environmental legal battles continue in Alaska and Siberia. In North-western Alaska’s National Petroleum Reserve, Trump seeks to overthrow Obama-era safeguards by expanding development into regions of the Reserve long slated for protection. Two recent lawsuits are pushing back against expanded development in NPR-A oil leasing. The lawsuits are in response to the final environmental impact statement released by the Bureau of Land Management in June allowing oil leasing on 18.7 million acres in the 23-million-acre reserve, including drilling in Teshekpuk Lake. Teshekpuk is the largest lake on the North Slope and provides critical habitat for migratory waterfowl and shorebirds.

And while a lawsuit filed by the Natural Resources Defense Council challenging the U.S. Environmental Protection Agency’s reversal of restrictions on Pebble Mine was dismissed in US District Court, Alaska Senator Dan Sullivan has joined a growing rank of conservatives who are openly opposed to the Pebble mine project. The proposed gold, molybdenum and cooper mine, in South-central Alaska’s Lake and Peninsula region, is recognized as a threat to the nationally-significant Bristol Bay salmon fisheries. Following the release of secret recordings by Pebble executives, Sullivan stated in a tweet on September 24^th, “Let me be even more clear: I oppose Pebble Mine. No Pebble Mine.” This follows a surprise stipulation issued by the U.S. Army Corps of Engineers in late August to Dynasty Minerals Ltd requiring the mine owners to outline how they will offset damage to wetlands and any impacts to the Bristol Bay salmon fishery. Other conservatives who oppose the mine, at least as it is currently proposed, including Alaska Senator Lisa Murkowski, Donald Trump Junior and Fox News host Tucker Carlson.

In the southern part of the state, Southeast Alaska Conservation Council, and other conservation groups including the Chilkat Indian Village of Klukwan, lost lawsuits in federal district court and the Ninth Circuit court which sought to challenge federal permits issued to the Palmer mine project near Haines. The Constantine Metal Resources Ltd. obtained permits to build 2.5 miles of roads across U.S. Bureau of Land Management (BLM) lands to access zinc, copper, gold and silver deposits. The lawsuit argued that BLM did not factor in future mining development at the Palmer mine and impacts on the 3,000 bald eagles and spawning salmon along the nearby Chilkat River.

In southeastern Alaska, the Trump administration is zeroing in on the Tongass National Forest, seeking to exclude this, the nation’s largest national forest, from the Clinton-era roadless rule. A much-disputed study by the U.S. Forest Service states that lifting protections “will not significantly harm the environment.” By year’s end, the Trump administration hopes to open vast tracts of pristine old growth forest to road construction and timber sales. Recent lawsuits blocking timber sales that failed to identify impacted areas, and for deficiencies in the review process have stalled the sales process several times. That pushback resulted in the Trump administration implementing the new roadless rule exemption.

Meanwhile, in the Russian far north, a lawsuit has been filed against Norilsk Nickle seeking 1.96 billion dollars in damages for a May 29^th fuel spill. The spill, blamed on melting permafrost, dumped 21,000 tons of diesel into the Ambarnaya and Daldykan rivers which feed into Lake Pyasino before emptying into the Arctic Ocean. The spill is one of the largest ever recorded in the Arctic and has been compared with Alaska’s 1989 ExxonValdez spill, in part because both spills coincided with the spring migration — just as birds and fish are returning to their natal grounds.

The one take-away the Gwich’in can offer in this legal playing field is don’t give up. The fights for the Coastal Plains, the Tongas, and the headwaters of Bristol Bay continue, one lawsuit at a time. For Gwich’in elder Sarah James it’s straight forward. “We’re not a nonprofit. We’re not a movement. We’re not a corporation. We’re a neets’aii Gwich’in tribal government, and that’s how we’re now taking on this issue, government-to-government, and we’re standing our ground.”

Trump Would Like You to Think He’s Gone Environmental

Just weeks away from the Presidential election, Trump is pandering for votes by suggesting that he is our man when it comes to preserving the environment. Describing himself as “the number one environmental president since Teddy Roosevelt,” in recent weeks he has backtracked on his administration’s move to grant a permit for Pebble Mine in Alaska which has to potential to devastate Bristol Bay salmon runs, and extended a federal moratorium on offshore drilling in the Gulf of Mexico which is largely supported by residents of Florida, Georgia and South Carolina where he is trying to solidify his base. Moreover, he rescinded his nomination of William Perry Pendley, the controversial candidate chosen to run the Bureau of Land Management. This smokescreen does little to obscure the dozens of deregulatory actions undertaken by the Trump administration, including rolling back fuel economy standards, opening the Arctic National Wildlife Refuge coastal plains to oil leasing, and tougher air-quality standards to name but a few.

Department of the Interior Should Take on Climate Change

Public land management agencies have taken a far right turn under the Trump administration, with a strong bent toward energy development and away from their shared mission of protecting lands for the recreational enjoyment of all Americans and, increasingly, as refugia from climate change. The recently proposed appointment of William Perry Pendley as acting director for the U.S. Bureau of Land Management is just the latest attack on federal lands stewardship.

U.S. Senator Tom Udall lamented the disastrous turn the agency’s leadership has taken during a webinar put on in the summer of 2020 by WildEarth Guardians. Referring to the progressive approach to land and species protection under his father, Stewart Udall – who served as Secretary of the Interior under President John F. Kennedy, Udall said, “The Interior Department should be right at the center of climate, endangered ecosystems, taking better care of the land, coming up with a good land ethic and dealing with the diversity issues and the environmental justice issues.” Udall went on to add “The next president is going to want to do something about climate, the Interior Department is going to be at the center of that.”

Arctic Refuge Oil Leasing Approved, Now Come the Legal Battles

Under the Trump administration, the 1.5 million-acre arctic plain on the northern edge of the Arctic National Wildlife Refuge is now open for drilling. Next up, a call for oil lease sale nominations and industry and public comment of at least 30 days, followed by a notice of the lease sale.

Home to imperiled polar bears, the vast and far-ranging Porcupine Caribou herd, countless nesting birds, and the Gwich’in Indian Nation, this is America’s last great wilderness. After a forty-year battle to prevent oil extraction on the refuge, the announcement was a blow, but that may not be the end for this pristine ecosystem.

Opponents believe that the process for approval of drilling was rushed for political reasons resulting in a flawed and inadequate analysis of the environmental impacts in violation of the National Environmental Policy Act. In addition, they claim the approval is contrary to prohibitions on killing or harassing of polar bears under the Endangered Species Act and Marine Mammal Protection Act, and the protection of indigenous subsistence food-gathering rights under the Alaska National Interest Lands Conservation Act. Vast lakes, rivers and wetlands could be affected by drilling in the Coastal Plain through water quality impacts and mining and road building related to needed infrastructure.

Similarly, the Gwich’in Steering Committee which represents members of the Gwich’n Athabascan tribes located on both sides of the Canadian/Alaskan boarder, argues that approval of drilling violates a 1987 treaty that gives the Canadian Government oversight authority into the management of the Porcupine Caribou herd. According to Arctic Today, Steering Committee Executive Director Bernadette Demientieff the “administration has done nothing but disrespect the Indigenous peoples that have occupied these lands. Our ways of life, our food security, and our identity is not up for negotiation. The fight is not over…”^[1]

Due to the impacts of COVID-19 resulting in less transportation, which in-turned caused a drop in oil processes, oil and gas companies’ interest in drilling in remote and difficult conditions of Arctic Plain has been waning. So it remains to be see whether there will be any bids submitted on the leases. Moreover, oil-tax initiative on the ballet in Alaska in November, Ballot Measure 1 would impose a 10 percent base tax on production form large North Slope oil fields and eliminate production tax credits. And finally, major banks, Goldman Sachs, JPMorgan Chase, Citigroup and Wells Fargo, have declared that they will not finance any development in the refuge. So the fights to save the Arctic Coastal Plain is not over yet.

Winners and Losers Among Northern Fish as Climates Change

A recent Canadian study, undertaken by York University and the University of Saskatchewan, studied climate resilience among northern fish species with some surprising results. Northern fish are, by nature, remarkably resilient, adjusting to a range of conditions including short summers with 24-hours of daylight and abundant food followed by long dark winters with little or no food availability. But as streams warm, prompting an increase in the invertebrates on which salmon feed, salmon species are tending to grow faster and have greater reproductive success. That’s the surprise, and could be a boon to indigenous communities, especially as salmon expand their ranges further north. But for some fish, mainly dolly Varden and Arctic grayling, which are specialized to thrive in cold Arctic waters, there may be no adaption or migration option at hand as rivers warm and summers grow longer.

House Democrats Deliver an Ambitious Climate Action Plan

In mid-June, U.S. House Democrats released a comprehensive 538-page climate crisis action plan. The goal of the plan is to bring U.S. greenhouse gas emissions to zero by 2050. The plan is built on the following 12 pillars:

Invest in Infrastructure to Build a Just, Equitable, and Resilient Clean Energy Economy
Drive Innovation and Deployment of Clean Energy and Deep Decarbonization Technologies
Transform U.S. Industry and Expand Domestic Manufacturing of Clean Energy and Zero-Emission Technologies
Break Down Barriers for Clean Energy Technologies
Invest in America’s Workers and Build a Fairer Economy
Invest in Disproportionately Exposed Communities to Cut Pollution and Advance Environmental Justice
Improve Public Health and Manage Climate Risks to Health Infrastructure
Invest in American Agriculture for Climate Solutions
Make U.S. Communities More Resilient to the Impacts of Climate Change
Protect and Restore America’s Lands, Waters, Ocean, and Wildlife
Confront Climate Risks to America’s National Security and Restore America’s Leadership on the International Stage
Strengthen America’s Core Institutions to Facilitate Climate Action

More specifically, from the perspective of water policy, the plan calls for “Water infrastructure resilience” standards to provide clean water and mitigate flooding, droughts and erosion. The plan also calls for the reduction of water pollution through the safe disposal of hazardous wastes from the oil and gas industry, and a recommendation to protect “at least 30% of all U.S. lands and ocean areas by 2030.”

To view the plan in its entirety, click here. To read more about the development and implementation of the plan click here and here.

Is Federal Disaster & Hazard Mitigation Aid Getting to Those Communities Most in Need?

In August 2020, National Public Radio’s Ted Talk broadcast an episode entitled “Our Relationship with Water” in which Colette Pichon Battle who is an attorney turned climate activist who grew up in Bayou Liberty just north of New Orleans.[1] She says she was thrown into her new role because rising sea levels, flooding and other climate factors are threatening the land that has been in her family for generations. Pichon-Battle says “’I work at the community level to make sure that black folks, poor folks and native folks are part of thia climate conversation’” including to communicate the policy and science of climate change to her neighbors and that the scientific community and policy makers listen to the traditional knowledge that the community can provide about the area.[2]

After Hurrican Katrina caused a tidal surge from the Gulf that swept her entire community into Lake Pontchartrain, she found that the surge was caused by sea level rise and the absence of barrier islands, now gone because of oil and gas drilling, which use to block such surges. Once she realized that hurricans like Katrina and likely worse are her to stay and in looking at flood maps of Lousiana she realized that her community along with other African American, Native American and impoverished communities would likely simply disappear before the end of the century. Quechon-Battle, notes that she was invited to the Whitehouse during the Obama administration to talk with the Federal Emergency Management Service, the agency primarily responsible for assisting communities with disaster and hazard mitigation preparedness in relation to flooding and other natural events, about how her community could obtain assistance to prepare for future flooding events. She says that during this conversation “the FEMA administrator said ‘I understand what your saying, but the FEMA regulations are’nt ment for the most vulnerable communities.’ The disaster assistance process for this country are ment for the middle class.” Despite the double take she made when she heard this statement she firmly believes that “This was an honest comment from FEMA. This is what you realize when you recognize that you recognize that the structures that are in place right now are absolutely not meant for me.”[3]

Arctic Native communities which have been experiencing increased permafrost melt, loss of sea ice, extreme weather events, flooding and erosion that may make current residences and settlements uninhabitable in the near future, no all to well about competition for limited federal disaster and hazard mitigation funding to defend against the inevitable march of climate change. In addition to what communities like Quechon-Battle’s experienced when approaching FEMA for help, in many cases, agencies require cost-benefit analysis, plans, environmental analysis, or other measures above and beyond analysis or strategies contained in Hazard Mitigation Plans (HMPs) or other plans before such communities qualify to apply for funds. Similarly, because standard arctic community HMPs do not contain a detailed cost-benefit analysis of natural hazards affecting water resources, such communities cannot obtain high rankings that larger cities can to qualify for competitive funding or other federal or state assistance needed to address such impacts. Finally, the villages cannot afford to hire consultants or even staff to conduct climate adaption planning on behalf of such communities to include more meaningful consideration of economic impacts and risks associated with coastal water resource management resiliency strategies, in order to move beyond the planning phase and into on the ground project implementation.

There is a need, therefore, to conduct economic risk-benefit and environmental analysis and otherwise close the gap between Federal Emergency Management Agency (FEMA) and other governmental funding and technical assistance programs such so that North Bering Sea communities can implement on-the-ground projects that will address the Villages’ climate-related coastal water resources management challenges.

[1] https://www.npr.org/2020/08/06/899845219/our-relationship-with-water.

[2] Ibid.

[3] Ibid.