Bipartisan Support Pushes Energy Bill Through Senate

By Nicholas Vandenbos

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With a vote of 85-12, the Senate on Wednesday passed Senate Bill 2012, the Energy Policy Modernization Act of 2016. The bill now goes before the House, which has already passed a significantly different version, one that President Obama has threatened to veto. Sponsored by Sen. Lisa Murkowski (R Alaska), the Senate bill would amend the Energy Policy Act of 2005 to “revise or prescribe requirements for loan and loan guarantee incentives for innovative technologies,” and would “establish an e-prize competition or challenge pilot program to implement community and regional energy solutions to reduce energy costs in high-cost regions.”[1]

Broad energy issues aside, the bill contains a number of public land related measures. Noteworthy among these is a provision that would permanently authorize the Land and Water Conservation Fund. The Fund, which directs up to $900M of offshore oil and gas leasing revenues to federal and state conservation projects, was allowed to expire for the first time in its 50-year history last October before being reauthorized for a term of three years in a last-minute spending bill in December. In Montana, the PLRLR’s home state, the Fund has provided more than $11.4M since 2011 alone. In Utah, home of republican representative Rob Bishop, the architect of the Fund’s short-lived demise, that number is closer to $12M.

Also attached to Sen. Murkowski’s bill is a measure known as the Sportsmen’s Act, legislation designed to open federal land to recreational users. Federal lands make up broad swathes of the American West, but are often locked in by private landowners who block public access across their lands. The Sportsmen’s Act would direct the Forest Service and BLM to identify problem areas of this sort and work to develop public access plans. The legislation is not without its critics, some of whom oppose the inclusion of a provision exempting lead ammunition and tackle from the Toxic Substances Control Act.

Finally, another rider would create two new wilderness areas in New Mexico’s Rio Grande Del Norte National Monument, while yet another would implement the Yakima River Basin Water Enhancement Project Phase III Act, which would provide much-needed funding for the Yakima Basin Integrated Plan, a long-term water management effort. That plan is the product of years of negotiation between stakeholders in Central Washington’s Yakima Basin, and aims to both improve river flows, habitat, and fish passage as well as increase water storage.

[1] S. 2012 – Energy Policy Modernization Act of 2016, Summary (https://www.congress.gov/bill/114th-congress/senate-bill/2012) (last viewed Apr. 23, 2016).

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The Buzz About Pesticides

By Lindsay Ward

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Honeybees occupy a vital role in pollination and ecology, transferring pollen from one flower to another and inadvertently aiding in plant procreation. Pesticides, used to control pests, serve another role in agriculture. As concern grows over the recent disappearance of honeybees, the tiny insect and pesticide use are increasingly seen as interrelated.

In early November of 2015, a federal appeals court vacated the registration of pesticide sulfoxaflor and remanded to the EPA to conduct more studies and data looking at the effects of the pesticides on bees, as mandated by the EPA regulations. Pollinator Stewardship Council v. United States E.P.A., No. 13-72346, 2015 U.S. App. LEXIS 19945, at *1 (9th Cir. Nov. 12, 2015). The Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) bans the sale of pesticides that have not been given approval and registration by the EPA. Among other reasons, the EPA is permitted to deny approval if the pesticide has an unreasonable and adverse effect on the environment. 7 U.S.C.S. § 136(bb) defines these impermissible effects as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use.”

When a pesticide or insecticide is likely to be a danger to pollinating insects, such as honeybees, the EPA is required to conduct pollinator field testing under 40 C.F.R. § 158.630(d), (e). Studies revealed that the insecticide sulfaxaflor was incredibility toxic to honeybees. In response, the EPA first proposed to conditionally register the insecticide and requested that more studies be conducted. Only months later and with no additional information or studies, the EPA unconditionally registered sulfaxaflor, requiring minimal mitigation measures. The group Earthjustice brought suit, stating that the EPA did not satisfactorily study the pesticide. The 9th Circuit agreed, finding EPA’s assessment rested on “flawed and limited data,” and vacated the registration of sulfaxaflor.

In the 1940s, the total number of managed colonies was 5 million; today, they have dwindled to 2.5 million colonies. Neonicotinoid insecticides, including sulfaxaflor, are thought to play a role in the disappearance of honeybees. Another factor is Colony Collapse Disorder (“CCD”), a syndrome that poses a serious risk to the honeybee population. CCD is defined as a colony consisting of a live queen and immature bees, yet mysteriously lacking adult bees or dead bee bodies. While the cause of CCD is still unknown, pesticide effects are more easily studied and therefore prevented. Pesticide use is ubiquitous in conventional farming methods. While it perhaps plays a necessary role, honeybees are indispensable to the American food system.

For more information:

http://www.ars.usda.gov/News/docs.htm?docid=15572

http://agr.mt.gov/agr/Programs/Bees/pdf/BeeGuide07.pdf

http://www.cdapress.com/news/national_news/article_2921216f-50c9-57cd-9210-5d38c2ce0831.html

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Delisting Proposal for the Yellowstone Grizzly Bear

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Photo Courtesy: yellowstonepark.com/wildlife/bears

By Hallie Bishop

On March 3, 2016, the United States Fish and Wildlife Service (“USFWS”) announced plans to delist the Yellowstone grizzly bear from the Endangered Species List. Delisting the grizzly bear would hand management back to the States of Montana, Wyoming, and Idaho. The grizzly bear would still be protected inside the Yellowstone National Park, but this could potentially pave the way for trophy hunts.

The Yellowstone grizzly bear was first listed as threatened under the Endangered Species Act in 1975, with as few as 136 bears in the greater Yellowstone ecosystem. Today, the USFWS estimates that the grizzly bear has rebounded in population to approximately 700 within that same area. The Yellowstone grizzly bear population has remained stable since 2002.

If this delisting proposal is approved the management of the Yellowstone grizzly becomes the responsibility of Idaho, Montana, Wyoming, and tribes. All three states have praised the delisting proposal. These states and tribes would determine if and when trophy hunting would begin of the grizzly bear. The states would have the authority to address grizzly bear depredation concerns, as they would any other trophy game species. In the delisting proposal, the USFWS and the states would not allow the grizzly bear population for fall below 600 grizzlies within the greater Yellowstone ecosystem. The trophy game status for grizzly bears would sustain them well above recovery goals and still allow states to have control of bears.

The proposal appears to be a great success for conservation efforts of the Yellowstone grizzly bear, but there are some doubters. Environmentalists and wildlife advocates are weary of the delisting proposal. Many argue that it is too soon for the Yellowstone grizzly to be delisted. Although they recognize the great success of grizzly bear recovery, they believe that the USFWS is not taking into account all the factors. These factors include the declining food source of the Whitebark pine nuts due to wildfires and mountain pine beetle infestations, which has been exacerbated by the warmer temperatures in the area. The declining food source of the Whitebark pine has caused bears to eat more meat which has caused more conflicts with humans and increased grizzly mortality.

Have the Yellowstone grizzlies come back from almost extinction? Undeniably. But the question is, do the numbers tell the real story? The grizzly bear recovery is a success for the administration but delisting the grizzly too early could put them right back on the endangered species list. Removing the federal ESA protections, adding hunting pressures, and declining food sources could send the grizzly bear back into a spiral of extinction. Only time will tell if delisting the Yellowstone grizzly bear and putting management back in the hands of states is the right choice or a grisly mistake.

If you want to know more about the USFWS delisting proposal you can visit the following website: http://www.fws.gov/mountain-prairie/es/grizzlyBear.php

 

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Polar Bear Habitat Protected by Ninth Circuit

By Taylor Rose Thompson

On February 29, 2016, the Ninth Circuit held lawful that the designation of 187,000 square miles along the northern coast of Alaska as critical habitat for polar bears by the U.S. Fish and Wildlife Service (“USFSW”).[1] The critical habitat for threatened polar bears in located on Alaska’s northern coast and includes marine waters. Polar bears are the first animal to be listed in the Endangered Species Act (“ESA”) as “threatened” due to climate change.

Unit 3 Picture Unit 1 Polarbear

The State of Alaska and the Alaska Oil and Gas Association, a coalition of native groups and other oil and gas groups, sued USFWS after USFWS designated the land as critical habitat as part of its polar bear recovery plan. They argued that this designation was an “overreach.”

This decision came to the Ninth Circuit on appeal from a 2013 decision from the Alaska District Court invalidating the designation. The district court held that USFWS did not show that the land would be appropriate for polar bear habitat and rejected the plan in its entirety. The Ninth Circuit disagreed, and held that the designation of the land did not have to be proven habitat, but rather that the areas were “critical to the conservation of the species.” According to the court, the designation stands because USFWS used the best available science.

The holding is certainly a win, but the holding does draw some concerns over the potential consequences on future development in the Arctic. Currently, Alaska is facing serious budget issues. Not only is the price of oil significantly lower, offshore development of oil has all but halted A critical habitat designation of this size will impact federal approval of future offshore development. It is important to consider what the larger effects of a designation of this size can do to a resource dependent state such as Alaska. However, it is also important to protect a species as important to Alaska as the polar bear.

[1] Alaska Oil & Gas Association v. Jewell, No. 13-35619, ___ F.3d ___, 2016 U.S. App. LEXIS 3624, 2016 WL 766855 (9th Cir. Feb. 29, 2016).

 

 

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Wolverines: A Ferocious Life of Litigation

By Keatan Williams

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Image Courtesy of FactZoo.com (found at: http://www.factzoo.com)

The average lifespan of a wolverine is seven to ten years. This means that the fight over the decision to list wolverines has likely outlived all of the species that was alive in 2000 when the United States Fish and Wildlife Service (“FWS”) was first petitioned for its listing under the Endangered Species Act (“ESA”). The FWS failed to make a decision and petitioners relied on judicial enforcement numerous times from 2000-2008 in order to list the wolverine. This all culminated in a 2009 settlement in which FWS agreed to come up with a listing determination within twelve months. On December 14, 2010, the FWS determined that listing the North American wolverine as an endangered species was warranted but precluded. On February 4, 2013, the FWS proposed listing the North American wolverine as endangered under the ESA. On August 13, 2014, the FWS issued a withdrawal of the proposed listing, finding that the wolverine didn’t actually qualify for listing.

Now, wolverines are once again back in the courtroom with a number of plaintiffs filing a complaint in the Missoula Division of the United States District Court for the District of Montana. On Tuesday, February 9, 2016, United States District Chief Judge Dana L. Christensen, who has personally viewed wolverines in the wild on three different occasions, heard oral arguments concerning the recent “no-list” opinion from the FWS. Primarily, this debate hinges on not just whether climate change is a threat to wolverines, but what the best available science is to decide that. Departing from the norm, the FWS, in their most recent listing decision, relied on internal science that disputed the peer-reviewed articles which were the basis for their proposed listing just eighteen months prior.

Wolverines are hard to study and climate models struggle to be exact. This is a major factor behind why this battle has been fought for so long. No one knows exactly how many wolverines are in the wild, and unlike Chief Judge Christensen, most people will never even see one. Additionally, the main threat to their existence is reduced habitat due to lower snow levels attributed to climate change. Between the limited science on the species and the political minefield that is climate change, the listing decision has been particularly hard for the FWS. When the FWS finally seemed to have made a decision, it pulled an about-face and brought this newest litigation. Now, after sixteen years of the FWS being on the fence about listing wolverines, the courts are stepping in to hopefully settle the issue once and for all.

Sources:

Center for Biological Diversity v. Jewell, Case No. 9:14-cv-00247 (D. Mont. 2016), Oral Arguments 2/9/2016.

Center for Biological Diversity v. Jewell, Case No. 9:14-cv-00247 (D. Mont. 2016), Plaintiff’s Brief available at https://www.biologicaldiversity.org/species/mammals/American_wolverine/pdfs/Wolverine_Complaint.pdf

Rob Chaney, Wolverine case being heard in Missoula court asks if FWS made rational decision, Missoulian, Feb. 9, 2016 available at http://missoulian.com/news/local/wolverine-case-being-heard-in-missoula-court-asks-if-fws/article_032a679b-12e8-5ec7-845e-4d27627a3a56.html.

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Lynx Protection Zones Approved in Montana Despite Defendant-Intervenors’ Objections

Lynx_CanadensisCanada Lynx. Source: https://en.wikipedia.org/wiki/Canada_lynx

By Hannah Seifert

On September 22, 2015, Chief Judge Dana L. Christensen, United States District Court for the District of Montana, approved a settlement agreement (Friends of the Wild Swan v. Vermillion, No. 9:13-cv-00066-DLC, Order) between conservation groups and the State of Montana aimed at protecting threatened Canada lynx from trapping. In 2013, Friends of the Wild Swan, Alliance for the Wild Rockies, and WildEarth Guardians, represented by the Western Environmental Law Center, sued the State of Montana (Complaint), claiming that the authorization of trapping in occupied lynx habitat constituted a violation of Section 9 of the Endangered Species Act (“ESA”),[1] which prohibits both the direct and indirect taking of endangered species. The lynx has been considered a threatened species under the ESA since 2000. In 2009, the United States Fish and Wildlife Service designated lynx critical habitat in fifteen Montana counties. Based on reported instances alone, at least fifteen lynx have been caught in traps in Montana since 2001; five of these trapping incidents were fatal. Plaintiffs claimed that allowing the trapping of other animals in designated lynx critical habitats had resulted, and would likely result, in the taking of lynx, therefore violating the ESA.

In February 2015, the parties drafted a proposed settlement agreement establishing “lynx protection zones” and special regulations in occupied lynx habitat to protect lynx and help trappers avoid accidentally taking lynx in Montana. Defendant-Intervenors Montana Trappers Association and National Trappers Association opposed the settlement. The Montana Fish, Wildlife & Parks Commission approved the regulatory changes delineated in the settlement agreement in their entirety and Plaintiffs subsequently filed a motion to dismiss the civil action. According to Plaintiffs’ counsel, the regulatory changes will “significantly reduce or eliminate the risk of accidental lynx trapping and will decrease the likelihood of serious injury or death to the species if caught.”[2]

LynxProtectionZonesSource: http://www.westernlaw.org/sites/default/files/MT%20Lynx%20Protection%20Zone.pdf

Despite Defendant-Intervenors’ opposition, the court granted Plaintiffs’ motion to dismiss and approved the settlement agreement. Generally, intervenors’ consent is not required for approval of a settlement agreement, but a non-settling defendant may object to a settlement when it can demonstrate it will sustain some formal legal prejudice as a result. Judge Christensen held that, while Defendant-Intervenors’ interest in the litigation was sufficient to establish intervention-of-right status, their opposition could not preclude settlement because their purported injuries—traps rendered obsolete, necessity to check traps with more frequency, and a lower aggregate number of animals trapped—were insufficient to meet the requisite legal prejudice standard.

[1] 16 U.S.C. § 1538(a)(1)(B) (2012).

[2] Western Environmental Law Center, Court Approves Settlement to Save Imperiled Lynx from Trapping, westernlaw.org, http://www.westernlaw.org/article/court-approves-settlement-save-imperiled-lynx-trapping-press-release-92315 (last visited Dec. 3, 2015).

 

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The Next Frontier of GMOs: Salmon

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By Kevin Rechkoff

In recent years, the debate around health implications of genetically modified fruits and vegetables has sprouted in the American consumers conscience. Now, the Food and Drug Administration (“FDA”) has taken another step, approving for the first time a genetically modified animal for human consumption.

Soon, in a store near you, AquAdvantage’s manufactured salmon will be gracing the shelves. However, due to a lack of legislation requiring the company to label the salmon as genetically engineered, you might not know it.

The reaction from industry and lobbying groups has been expectedly varied. Some groups, such as the Center for Food Safety (“CFS”), plan to sue the FDA, claiming the engineered salmon pose environmental and health risks that the agency failed to take into consideration. One of their primary concerns focuses on the salmon’s ability to reproduce. AquAdvantage claims the salmon has been designed to be infertile, however, one study cited by the CFS suggested the salmon might have the capacity to reproduce with brown trout.

To counter these concerns, the FDA stated that approval of the salmon came only with strict guidelines such as limiting production locations to outside of the United States and requiring the manufacturing process to occur only in isolated tanks, away from natural bodies of water. Additionally, AquAdvantage claims this method of fish production is both a benefit to the environment and to consumers. Healthy salmon will become more readily available and ocean ecosystems won’t have to face the brunt of increased fish consumption. Lastly, the company claims that by locating the facilities close to urban populations, their method of fish production is sustainable and efficient.

Interestingly, both sides in this debate wage similar arguments regarding the concerns and the benefits of the proposed salmon manufacturing. AquAdvantage touts the environmental paybacks while the organizations challenging the decision cite the environmental threats. Regardless of the outcome stemming from the inevitable litigation of the FDA’s decision, the choice to approve the salmon as healthy for consumption is a landmark moment for food production in the US. While food manufacturers have the option, but are not required, to label genetically engineered vegetables and fruits, they now have the ability to manufacture animals for human consumption without notifying the public of what they are eating.

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Undoubtedly, this will be an interesting area of environmental and food law for the foreseeable future.

For more information, see the links below.

http://www.law360.com/articles/729160/engineered-salmon-is-1st-animal-to-win-fda-food-approval

http://www.extremetech.com/extreme/218466-eating-2-0-why-the-first-fda-approved-genetically-modified-animal-will-revolutionize-the-food-industry

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