Pub.1 2019-2020 Issue 3

permitting is only required for water bodies that can support boat traffic. All other water bodies were to be under state jurisdiction. WOTUS has been compared to an accordion: • It has been stretched out by big-gov- ernment proponents who want uniform, nationwide enforcement. • It has been pushed in by those who support states’ rights and limited government. The Trump administration has repealed the 2015 WOTUS rule and has put a more limited view of the federal government’s jurisdiction into a proposed rule which has been published in the Federal Register (FR) for public comment. But, as has happened increasingly often in this era of gridlocked government, the ultimate answer to this CWA issue will be decided by the Supreme Court of the United States (SCOTUS). Pay close attention to the decision expected this spring in a case called City of Maui v. Hawaii Wildlife Fund. Clean Air Act The authority of the federal government to require permitting via Clean Air Act regulations issued by the EPA provides another accordion situation. The drawn-out legal dispute over the Obama administration’s clean power plan for controlling greenhouse gas emissions from existing power plants ended in 2019. The D.C. Circuit (which has exclusive jurisdiction over CAA litigation) dismissed the litigation and said the case was made moot now that the Trump EPA had repealed the regula- tion and replaced it with its own affordable clean energy rule. Naturally, environmental groups and some states with Democrat A.G.s have filed suit in the D.C. Cir- cuit challenging the new rule with oral argument expected to occur this spring. The future of the CAA will be significantly impacted by the November election and by the courts. Endangered Species Act The law was initially intended to protect threatened and endangered species. It has become (along with NEPA) the primary tool of energy project opponents to delay or overturn government approval of those projects. The ESA equivalent of the CWA battle over the meaning of the word “navigable” centers on the meaning of the word “habitat.” The ESA requires protection of the habitat of listed plants and animals; each species requires habitat protection free of the threat of commercial development. The Obama administration expanded the scope of the range of habitat. The resulting spate of litigation included taking cases under the Fifth Amendment. continued on page 18 When I was the Department of the Interior (DOI) Solicitor (1990-1993), there were 326 listed species. Two-thirds of them were plants. Currently, there are over 1,400 listed species, yet less than two dozen have been delisted because they were deemed recovered. The Trump administration’s FWS and NOAA are jointly working on a new rule that would define “habitat” more narrowly than some judges have ruled in various court cases. The “habitat rule” is due out in May. Nongovernmental organizations are sure to file lawsuits that will challenge the administration’s interpretation. The oil and gas industry should help defend the new rule. National Environmental Policy Act The Council on Environmental Quality's chair- woman Mary Neumayr, along with President Trump at a Jan. 9 White House ceremony, announced new NEPA guidelines to be followed by all federal government agencies. The extensive new guidelines are long overdue. After 40 years of inaction by the executive branch and Congress, NEPA has become a court-legislated statute that expanded in scope far beyond the original intentions of its 1970 authors. The costs of complying with NEPA are legendary. Even when the government issues a permit after completion of the lengthy NEPA Process, NGOs challenge alleged “inadequacies” of that particular process. While the government must defend the process, the project proponent usually has to intervene in the litigation to protect its interests at much time and expense. The landmark rewrite of the NEPA rules includes the following changes: • Analysis of a project’s cumulative effects on climate change is not required; • NEPA review of projects with minimal federal funding or participation would not be required; • NEPA EIS must be completed within two years (compared to the current 4-1/2 years), and an environmental assessment has to be completed within one year; • Authorization decisions involving multiple agencies will be streamlined and synchro- nized by placing just one agency in charge; • The new rules will improve the use of previous E.A.s and EISs when subsequent related reviews are conducted that involve the same or nearby geographic areas; • There will be increased project-proponent involvement in preparing E.A.s and EISs; • The new rules will specify presumptive page limits for the E.A.s and EISs to be produced by the agencies; • The new rules will also limit the range of alternatives that must be considered in NEPA reviews; The proposal was published in the F.R. and was open for public comment until March 10, 2020. Who Makes the Key Decisions? In the Department of the Interior, key decisions are made by: • Secretary David Bernhardt. • Acting Deputy Secretary Katherine “Kate” MacGregor. • Associate Deputy Secretary James Cason. • Acting Assistant Secretary for Land and Miner- als Management (LMM) Casey Hammond. • Agency directors of BLM/FWS/ONRR responsi- ble for carrying out day-to-day policies. In the DOI Office of the Solicitor, the current Solicitor Daniel Jorjani manages 350 attorneys. He has the final say about what the law is within the department. Of the attorneys who report to him: • Six are deputy solicitors, who are political appointees. The remainder of the solicitor’s office employees are career attorneys. • There are also eight career regional solicitors and another eight field solicitors. The power of the Interior Board of Land Appeals (IBLA) in decision-making is equivalent to that of the Secretary. An entity opposed to a decision must exhaust the required administrative reme- dies by appealing a DOI adverse Agency decision to the IBLA before taking its case to a Federal District Court. The Department of Justice’s Environment and Natural Resources Division handles all trial court and appellate court litigation for eight cabinet departments, including DOI, EPA, Energy, Commerce, Agriculture and Transportation. It also handles environmental cases that involve the State The “habitat rule” is due out in May. Nongovernmental organizations are sure to file lawsuits that will challenge the administration’s interpretation. The oil and gas industry should help defend the new rule. 17 UP DATE