Wednesday, May 04, 2016

How the government got BP to pay the biggest environmental penalty in history

The first order of business when John Cruden took over as the Justice Department's top environmental lawyer was holding BP financially accountable for the 2010 Deepwater Horizon spill that fouled the Gulf of Mexico with millions of barrels of oil. The best way to do that, Cruden believed, was to settle the costly and contentious legal fight between his department and the oil giant. But the former Green Beret was worried about entering negotiations with a weak hand, particularly after BP had rebuffed a sizable 2013 deal. So when a court-appointed mediator suggested reaching out to BP to reopen talks, Cruden surprised the respected magistrate judge by demurring. “They can come to me," he said, smiling confidently. It was a risky, audacious move -- and it worked. What followed was the largest environmental settlement in the Justice Department’s history. With the $20.8-billion deal formally approved last month by a federal judge in New Orleans, Cruden, other Justice Department officials and independent mediators are discussing for the first time how they nailed down an agreement that could become the model for future environmental disasters. The settlement is also a professional capstone of sorts for Cruden, a career Justice Department environmental attorney who had overseen some of the division’s biggest cases, including the Exxon Valdez oil spill, toxic dumping at Love Canal, N.Y., and a $1-billion interim settlement with BP to fund restoration projects in the Gulf. Cruden had retired from the department in 2011, but was coaxed by the White House to return, and in January 2015, he took over as the assistant attorney general of the environment and natural resources division. Fortunately for Cruden, he returned just as the BP civil lawsuit was about to enter the penalty phase, after which U.S. District Judge Carl Barbier would decide how big a fine to levy on the company...more

GOP senators call for criminal probe of EPA mine waste spill

Two Republicans on the Indian Affairs Committee are asking the Justice Department to investigate potential criminal activities by environmental regulators before a mine waste spill in Colorado last year. In a letter to Attorney General Loretta Lynch on Tuesday, Sens. John Barrasso (R-Wyo.), the chairman of the committee, and John McCain (R-Ariz.) said Environmental Protection Agency (EPA) employees may have broken the law by moving forward with clean-up work at the Gold King Mine last August before spilling 3 million gallons of waste into the nearby Animas River. “We ask that you review the circumstances surrounding the Gold King Mine spill to determine specifically whether evidence warrants the prosecution of any EPA manager, employee or contractor for the criminal violation of federal environmental law, criminal negligence, obstruction or any other crime,” the pair wrote. “With the conduct of EPA employees and contractors having been stipulated as causing the Gold King Mine spill, DOJ’s involvement is necessary to affirm that the government is willing to hold itself to the same level of accountability as it holds private companies whose negligence results in serious environmental damage.”...more

U.S. Lawmakers Seek End to Arctic Drilling

A group of 68 lawmakers are trying to maintain the momentum of protest against Arctic oil drilling by calling on U.S. Department of Interior Secretary Sally Jewell to exclude two sectors of the Alaskan Arctic Ocean from future oil and gas lease sales. The areas in question are the Chukchi and Beaufort seas, which have been approved for drilling by the Obama administration. The Chukchi Sea is believed to hold 15 billion barrels of recoverable oil and 78 trillion cubic feet of recoverable natural gas, while the Beaufort Sea could hold 8 billion barrels of oil and nearly 28 trillion cubic feet of natural gas. The signatories of a letter sent to Secretary Jewell—led by California Democrat Rep. Jared Huffman--argue that by banning drilling in Chukchi and Beaufort, the U.S. would be positively contributing to the climate change goals of the Paris...more

Jewell announces $107M for Blackfeet land buy-back

Twenty years after Blackfeet social activist Elouise Cobell filed a historic lawsuit demanding the federal government account for generations of exploitation and mismanagement of tribal land across the United States, Cobell’s own people stand ready to receive their compensation. On Tuesday, U.S. Interior Secretary Sally Jewell arrived at the Blackfeet Reservation to sign a compact allocating $107 million to buy back land allotted to tribal members 130 years ago, and then transfer control of these “trust lands” over to the Blackfeet tribal government. It is only a fraction of the $1.9 billion approved by Congress and signed into law as result of the Cobell lawsuit.“I think history will say we hit a vital turning point before we drove off a cliff,” Jewell said of the significance of the day’s events. “We hope that this says, let’s bury the sins of the past, of which there were many by the federal government not upholding its trust and treaty obligations to our nation’s first people...more

Tuesday, May 03, 2016

Has big conservation gone astray?

  • In Part 1 of Conservation, Divided, veteran Mongabay reporter Jeremy Hance explores how the world’s biggest conservation groups have embraced a human-centric approach known as “new conservation” that has split the field over how best to save life on Earth.
  • Neither side of the debate disagrees that conservation today is failing to adequately halt mass extinction. But how to proceed is where talks break down, especially when it comes to the importance of protected areas and the efficacy of the biggest, most recognizable groups.
  • Conservation, Divided is an in-depth four-part series investigating how the field of conservation has changed over the last 30 years — and the challenges it faces moving into an uncertain future. Hance completed the series over the course of eight months. Stories will run weekly through May 17.

Bashing the big

 ...One of the things you discover as an environmental journalist is just how quickly scientists and conservationists are happy to bash — off the record, of course — big conservation groups. These include four of the world’s largest wildlife and wild-lands-focused groups with a global footprint: WWF, Conservation International (CI), the Nature Conservancy (TNC), and at times, though to a much lesser extent, the Wildlife Conservation Society (WCS). Together these four groups employ over ten thousand people in nearly a hundred countries and have a collective annual income of around $2 billion. In many parts of the world, if not most, one of these four groups is likely to be seen as the public face of conservation efforts.

Over the years former employees have regularly dished the dirt to me about missed opportunities, misplaced values, and projects that seemed to fail as often as they succeeded, while current employees often sounded like public relations officials speaking in staccato. Outside conservationists often complained that the big NGOs took credit for their hard work and bungled local relationships. The same concerns would come up repeatedly: an obsession with the organization’s brand at the expense of success, a corporate-mimicked hierarchy, cushy relationships with some of the world’s biggest environmentally destructive corporations, radio silence on so many environmental issues, and an inability to respond to crises that are appearing with ever-more regularity...

The rise of “new conservation”

The biggest shift in conservation in recent times is the rise of something called “new conservation.” This change is the origin of some — but by no means all — of the criticism flung at big conservation today.
Since the beginnings of the modern conservation movement — often linked to the rise of national parks in the nineteenth century — conservation has been largely about setting aside tracts of land or water and developing ways to protect endangered species. While early conservation efforts were in part propelled by economic and human-oriented values (such as hunting and recreation), they also placed a major emphasis on saving nature for its intrinsic and spiritual worth.

...Inspired by Muir and others, many environmentalists argued that whatever nature might be worth economically to humankind now or in the future, it possesses a deeper importance that can’t and shouldn’t be measured in dollar signs. We should protect nature not because it serves myriad human needs (even though it does), but because we have a moral duty to do so.

Yet in recent decades the pendulum has swung back toward viewing nature through a largely utilitarian lens. This is perhaps not surprising given the rise of global environmental threats like climate change, ocean acidification, overpopulation, pollution, and mass extinction — and the growing realization that these threats could actually unhinge the workings of human civilization and plunge millions, maybe billions, into misery.

But this shift also followed the rise of neoliberalism in the 1970s and 80s, a movement that espoused de-regulation, distrust in governments, and deepening trust (some might even say religious-like fanaticism) in free markets and private enterprise. Conservationists were not immune to such beliefs. Following this period, environmentalists took a page from economists in attempting to meticulously measure everything in nature for its economic worth today and even make guesses about tomorrow. How much is pollination worth? Carbon sequestration? Water filtration?

A wonderful vision took form: if we could only incorporate the dollar value of nature into our current economic system — and convince policy makers and business people to understand that unrecognized economic value — we could save the world. This economic-centric approach has come to be called “new conservation.”

New conservationists argue that past conservation efforts never fully comprehended or addressed the real causes of biodiversity loss.

Tom Dillon, Senior Vice President of Forests and Freshwater for World Wildlife Fund-US (part of WWF), told me that the “core” of new conservation is transforming the drivers of destruction to be more environmentally friendly.

So, the new philosophy largely turned to focus on lands and waters outside protected areas with attempts to green big industries like agriculture, logging, fisheries, and mining.

“Expanding agriculture is responsible for most of the world’s deforestation. Polluted runoff and fragmented ecosystems from poorly planned infrastructure, such as roads and dams, is a major threat to the world’s rivers. Understanding the magnitude of these threats has helped us in creating innovative approaches to addressing them,” Dillon said. “And that is the only way we will be able to protect the world’s wildlife.”

Oral argument in sea otter case; USFWS uses "Scofflaw defense"

This Friday, May 6th, the Ninth Circuit will consider whether federal bureaucrats can escape judicial review of their illegal acts by pointing to their prior violations of the law. The U.S. Fish and Wildlife Service argues that PLF’s challenge to an illegal rule regarding the sea otter should not be heard because this isn’t the first time that the Service has exceeded its authority under the statute. Let’s call this absurd argument the “Scofflaw defense.” But first, some background: In the early 80s, the Service decided that, to recover the California sea otter (a threatened species), it needed to establish a new population of otters in Southern California. Since the law at the time forbade that, the Service had to go to Congress for permission. The plan proved to be very controversial because (1) sea otters are voracious predators that could decimate nearby fisheries and (2) the new population threatened to stop recreation, fishing, and other productive activities in surrounding waters due to application of the Endangered Species Act’s take prohibition. Congress ultimately enacted a compromise that permitted the Service to establish the population but required it to also implement protections for the surrounding fishery and those who work and play in it. In 2012, the Service violated this compromise. Despite having established the Southern California population more than 20 years earlier, the Service issued a rule unilaterally terminating all of the statutorily-mandated protections for the surrounding fishery. Under the Administrative Procedure Act, any agency action can be challenged as exceeding an agency’s authority, so long as the case is filed within 6 years. PLF challenged the rule, on behalf of several fishermen groups, within 8 months. So there shouldn’t be a problem, right? The Service moved to dismiss the case anyway. It asserted that the challenge could only have been brought in the 80s, when the Service issued a regulation suggesting that it might, possibly, someday terminate these protections. Because this regulation exceeded the Service’s statutory authority in a similar way as the 2012 rule, the Service argues the regulation shields all similarly-illegal subsequent actions from judicial review. (Talk about chutzpah!) The scofflaw defense sounds like madness but, unfortunately, the district court accepted it. We’ve appealed that decision to the Ninth Circuit. As we explained in our opening and reply briefs, the scofflaw defense is contrary to the APA and basic common sense. You can find the other briefs in the case here. The oral argument will be in Pasadena on Friday morning. Details are available here.  Press Release

California woman, 24, dies after becoming infected with a brain-eating amoeba following a swim in the Colorado River

A California woman lost her life after what appeared to be a harmless weekend enjoying her birthday at a fresh-water river. Kelsey McClain, 24, passed away after a brain-eating amoeba left her brain dead after entering her nose while she was swimming in the Colorado River. McClain was staying at Fisher's Landing, a resort along the Colorado River just hours away from her home in El Cajon, California. She spent most of her 24th birthday enjoying activities in the fresh water and felt fine when she came home. But days later she had a pounding headache and couldn't turn her head without excruciating pain. Doctors were baffled by her symptoms and at first thought she had bacterial meningitis. 'It was apparent to everyone this was progressing,' McClain's mother Jennifer told ABC 15. After rounds of treatments and antibiotics, McClain had a grand mal seizure. When nurses checked her eyes, they were fully dilated and she was pronounced brain dead.  Her organs were to be donated until her spinal fluid was checked by a lab at UC San Diego and Naegleria fowleri, the brain-eating amoeba, was discovered. Her organs now cannot be donated. There have been 133 recorded cases in 50 years and only three people survived, ABC 15 reported. A partner at Fisher's Landing said she had never end heard of the amoeba until McClain fell ill...more

Tribes come together to promote Bears Ears National Monument

The Ute Mountain Ute tribe expressed enthusiasm for the proposed Bears Ears National Monument at a community meeting Thursday attended by 50 Ute and Navajo tribal members. Ute Mountain has joined the Bears Ears Inter-tribal Coalition along with the Uintah-Ouray Utes, Navajo, Hopi, and Zuni tribes to lobby for the federal action. They are asking President Obama to declare the national monument on 1.9 million acres in southeast Utah to protect traditional Native American lands and ancient cultural sites. Under the proposal, it would be the first national monument to be co-managed by the BLM and native tribes with current and ancestral ties to the land. “It’s time that our concerns were heard,” said Navajo Albert Holiday. “We’ve been on the land for 500 years.” The meeting was one of a series organized by Utah Dine Bikeyah, a non-profit group who first proposed the monument and is working to educate the public...more 

What is the proper response when a coalition of nations lobbies to create harm to a state? The Utah Congressional Delegation should be carefully reviewing all federal statutes and programs impacting these nations.  Governor Hebert should be doing the same for state programs.  And both should be seeing if any federal or state funds are finding their way to this nonprofit.  That would be a start to a self-defense program by the state.


It would appear Utah state rep. Mike Noel is already doing something and former BLMer Ann Morgan in An Indigenous Vision: The Bears Ears National Monument is not too happy about it:

The First Amendment to the U.S. Constitution guarantees freedom of speech for individuals and organizations to associate and speak in any way they wish without fear of government retaliation. But you wouldn’t know that by listening to Mike Noel, a Republican representative from Kanab, Utah. Mr. Noel fears a conspiracy of sorts where conniving environmentalists are manipulating Native American tribal leaders into supporting a new national monument in Utah. He recently convinced colleagues on the Utah Constitutional Defense Council to ask the Utah Attorney General to investigate the coalition of groups advocating for the proposed Bears Ears National Monument in Utah...

I'm not familiar with the specifics of the Constitutional Defense Council's request to the state's AG.  However, just because I don't believe the coalition's speech should be abridged, doesn't mean that I or anyone should be forced to subsidize that speech.

Heinrich seeks to boost border security across NM’s Bootheel

Remote, rugged terrain. That is the phrase used over and over to describe New Mexico’s Bootheel by the people who live there, the agents who guard the border and the politicians who say they are trying to figure out how to fill gaps in resources to get that job done. Making those words understood in Washington, D.C., has been no easy task. “We need more focus in Washington, D.C., on these remote areas,” Sen. Martin Heinrich, D-NM, told me Monday. Heinrich spent the weekend touring the Bootheel with the Border Patrol and visiting with ranchers. Last month, Sen. Tom Udall, D-N.M., and Heinrich sent a letter to U.S. Customs and Border Protection Commissioner Gil Kerlikowske detailing the resources they believe are needed. Rep. Steve Pearce, R-N.M., has met with ranchers and has been talking with CBP about their concerns. What it takes to secure a region like Hidalgo County is not what it takes in San Diego, El Paso or the Rio Grande Valley of Texas. There are 86 miles of border and nearly 4,000 square miles of terrain sliced north-south by three separate mountain chains and precious few roads. Apprehensions by Border Patrol in New Mexico rose to 11,216 in fiscal 2015 from 6,910 in fiscal 2011 – a 62 percent increase over five years.  The Lordsburg station is staffed with about 230 agents – about 50 fewer than the more than 280 agents budgeted for last year...more

Praise to Heinrich for not just sending a letter, but actually visiting the area.  In the final analysis, though, Judy Keeler explains her frustrations with previous meetings and the lack of follow through.  Maybe things will be different with Heinrich.  We'll be watching.

Judy Keeler runs two ranches on the border in Hidalgo County. She met with Heinrich this weekend and Pearce in March. She has been vocal about border security issues for years.
When I reached her on the phone Monday, she sounded tired. I asked her if she had – no better word for it – “politician fatigue.”
“I’m meeting’d out,” she said.
“We don’t have any problems with what they are proposing,” she said about the horses and incentives and National Guard. “Those things are important. But personally, I’ve been to so many meetings where promises are made to secure the border and it just doesn’t happen. We’re fatigued of all the promises, and they don’t deliver, and I think I’m not the only one that feels fatigued.”
“There are not enough people to really matter down here,” she said. “The message is the border is secure, and everyone who lives on the border knows it’s not true.”

5 Myths about the Land and Water Conservation Fund

The majority of LWCF funding goes to local outdoor recreation projects.

The stateside grants program makes up a small and shrinking share of LWCF funding.
The majority of LWCF funds are used to expand the federal estate.
The LWCF directs $900 million per year into a fund for land and water conservation.

There is no dedicated LWCF fund.
It is a political and accounting fiction.
The LWCF costs taxpayers nothing. 

When funds are allocated through the LWCF, less funding is available for other federal priorities.
The LWCF is critical to protect public lands for future generations.

Congress has used the LWCF to expand the federal estate without adequately funding the maintenance and conservation of existing public lands.
Permanent reauthorization will advance the original goals of the LWCF.

The LWCF must be reformed to advance its original purpose.
Without reform, the LWCF should be terminated.

Download a PDF of the report.

Resettling the First American ‘Climate Refugees’

ISLE DE JEAN CHARLES, La. — Each morning at 3:30, when Joann Bourg leaves the mildewed and rusted house that her parents built on her grandfather’s property, she worries that the bridge connecting this spit of waterlogged land to Louisiana’s terra firma will again be flooded and she will miss another day’s work. Ms. Bourg, a custodian at a sporting goods store on the mainland, lives with her two sisters, 82-year-old mother, son and niece on land where her ancestors, members of the Native American tribes of southeastern Louisiana, have lived for generations. That earth is now dying, drowning in salt and sinking into the sea, and she is ready to leave. With a first-of-its-kind “climate resilience” grant to resettle the island’s native residents, Washington is ready to help. “Yes, this is our grandpa’s land,” Ms. Bourg said. “But it’s going under one way or another.” In January, the Department of Housing and Urban Development announced grants totaling $1 billion in 13 states to help communities adapt to climate change, by building stronger levees, dams and drainage systems. One of those grants, $48 million for Isle de Jean Charles, is something new: the first allocation of federal tax dollars to move an entire community struggling with the impacts of climate change. The divisions the effort has exposed and the logistical and moral dilemmas it has presented point up in microcosm the massive problems the world could face in the coming decades as it confronts a new category of displaced people who have become known as climate refugees...more

Colorado court overturns fracking bans

Colorado’s highest court overturned two cities’ bans on hydraulic fracturing Monday, ruling that state law preempts them. The state’s Supreme Court cited the main state law regulating oil and natural gas drilling and found that lawmakers clearly intended to severely limit the ability of cities and towns to regulate or outlaw the controversial practice also known as fracking. It’s a major loss for environmentalists, who have tried in recent years to get local fracking bans passed in places where state leaders are friendly to the oil and gas industry. “The Oil and Gas Conservation Act and the [Colorado Oil and Gas Conservation] Commission’s pervasive rules and regulations ... convince us that the state’s interest in the efficient and responsible development of oil and gas resources includes a strong interest in the uniform regulation of fracking,” the court wrote in striking down Longmont, Colo.’s ban on fracking. It had a similar finding for a five-year moratorium in Fort Collins, saying the measure “materially impedes the effectuation of the state’s interest in the efficient and responsible development of oil and gas resources.”...more

Ranching group sues over Beef Checkoff program

The Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) filed suit against the U.S. Department of Agriculture on Monday, alleging that the agency’s Beef Checkoff tax, which collected more than $80 million in FY 2015, is being unconstitutionally used to promote international beef, to the detriment of U.S. beef products and producers. R-CALF USA, whose members are independent cattle producers across the United States, says that while its members must pay a $1 per-head tax to the Checkoff program, funds from that tax are used to convince consumers that beef from R-CALF USA members’ cattle — raised domestically and in compliance with rigorous standards concerning safety, treatment and quality — is no different than beef produced under far less stringent procedures abroad. “The Checkoff’s implied message that all beef is equal, regardless of where the cattle are born or how they are raised, harms U.S. farmers and ranchers and deceives U.S. citizens,” said R-CALF USA CEO Bill Bullard. “Despite what we know to be clear evidence about the high quality of beef raised by independent U.S. cattlemen, we are being taxed to promote a message that beef raised without the strict standards used by our members is the same as all other beef, a message we do not support and do not agree with.” Press Release

It would appear that R-CALF is still very miffed over losing COOL.

Ex-Montana Sen. Conrad Burns dies; influenced energy policy

Former Montana Sen. Conrad Burns, a former cattle auctioneer whose folksy demeanor and political acumen earned him three terms and the bitter disdain of his opponents, died Thursday. He was 81. Burns died of natural causes at his home in Billings, Montana Republican Party Executive Director Jeff Essmann said. “He was a colorful figure who loved people, politics and to serve,” Essmann said. “He brought a common-man, common-sense approach to his work in the Senate and returned to his home in Billings when his work was done.” As a Republican senator, Burns used his influence on the powerful Appropriations committee to set the course on energy development and public lands management across the rural West. But he was ousted from office in 2006 under the specter of scandal after developing close ties to “super-lobbyist” Jack Abramoff, who was later jailed for conspiracy and fraud. No charges were ever filed against Burns, who dismissed criticism over the affairs as “old political hooey.” After working as a livestock auctioneer, Burns in 1975 moved into broadcast radio, founding four stations known as the Northern Ag Network. The network eventually grew to serve 31 radio and TV stations across Montana and Wyoming, offering agricultural news to rural areas. He sold the network in 1985 and — capitalizing on his name recognition — made his first foray into politics a year later, when he was elected commissioner for Yellowstone County in south-central Montana. Before his first term was completed, Burns took on incumbent U.S. Sen. John Melcher, a two-term Democrat described by Burns opponent as “a liberal who is soft on drugs, soft on defense and very high on social programs.” At the age of 53, he won election to the Senate by a 3-percentage-point margin. He rose to be one of the most influential positions in Washington with his seat on the Appropriations committee, serving as chairman of the Interior subcommittee...more