Did a Bureaucratic Fog Envelop the Flint Water Crisis?

Posted on April 23, 2019 by Ronald R. Janke

The Flint water crisis began in April 2014 when the City of Flint switched its source of drinking water from Lake Huron to the Flint River without installing corrosion control treatment to protect against lead and other chemicals leaching from pipes into tap water.  The need for corrective action was elevated on September 24, 2015, when a Flint pediatrician, Dr. Mona Hanna-Attisha, released her finding that the number of young children with elevated blood lead levels had increased 90 percent after the Flint’s water supply was switched.  In her book, What the Eyes Don’t See (2018), Dr. Hanna-Attisha plaintively and repeatedly asks why the regulators didn’t do something earlier to protect the children, noting “It was their job.” 

The US EPA’s Office of Inspector General (“OIG”) addressed Dr. Hanna-Attisha’s question in two reports released in 2016 and 2018.  The 2016 report concludes that by June 2015 “EPA Region V had sufficient information and authority to issue an Emergency Order but did not.”  The Region V Administrator did issue an Emergency Administrative Order under the Safe Drinking Water Act to the State of Michigan, the Michigan Department of Environmental Quality (MDEQ) and the City of Flint on January 16, 2016, one day after President Obama declared a federal state of emergency for the City of Flint, and three months after Flint had switched to a source of water with corrosion control treatment.

The 2018 OIG report concludes that “Management Weaknesses Delayed Response to the Flint Water Crisis.” It blamed ineffective communications, ineffective assessment of risk, confused oversight roles, and a failure to use existing authority. The report recommended that EPA “strengthen its oversight of state drinking water programs to improve the efficiency and effectiveness of the agency’s response to drinking water contamination emergencies.”  Notably, the report did not find that the delayed federal response resulted from factors that are commonly blamed when federal agencies fail to act – lack of authority, standards, money, personnel or other resources.   Existing personnel ultimately issued an emergency order under long-existing legal authority.   The cause of the problem and the risk of ingesting lead were recognizable -- Dr. Hanna-Attisha was immediately apprehensive about lead ingestion when a former EPA employee told her that Flint's water lacked corrosion control treatment.  Lack of concern for environmental justice seems absent, as the Obama EPA Administration widely publicized protecting low-income and minority communities, like Flint, from toxic contamination to be an agency priority.

Rather, the OIG reports suggest the Flint water crisis was enveloped in a bureaucratic fog which prevented EPA employees from seeing the urgency of the problem with enough clarity to take prompt and effective corrective action.  The fog included patterns of unfruitful extended inter- and intra-agency and inter-governmental discussions, deference, disagreements and indecision.  For example, in February 2015 EPA received six-months of lead monitoring data in which the 90th percentile of results exceeded the Practical Quantitation Limit (PQL), which by rule required Flint to optimize corrosion control treatment.  At the same time, EPA was concerned that Flint’s lead sampling protocol was biasing lead results lower.  In April 2015 EPA learned that Flint did not have corrosion control treatment in place.  In July 2015 EPA informed MDEQ that Flint had been required to provide corrosion control treatment, and the Region V Administrator advised Flint’s Mayor that EPA would “work with” the City on lead issues.  Two weeks later, EPA received a second six-months of drinking water monitoring data revealing even higher lead levels.  With MDEQ disputing that corrosion control treatment was required at Flint, Region V agreed in August 2015 to request a legal opinion from the EPA Office of Water, but it did not submit an official request until September 30, 2015.  In response, the Office of Water, without mentioning Flint, issued not a legal opinion, but a guidance memo in November 2015.  On several occasions in September 2015, the Region V administrator contacted the MDEQ, the Mayor of Flint, the EPA Administrator, and the EPA Office of Research and Development urging a variety of protective actions.   

This bureaucratic fog also contributed to EPA’s inability to react to citizen complaints about the Flint water supply.   Between May 2014 and January 2016 when the EPA Emergency Administrative Order was issued, EPA Region V received 87 complaints about Flint drinking water conditions, 30 of which raised concerns about lead.  Generally, EPA staff responded to these lead complaints with form letters recommending that citizens contact the MDEQ or the Flint water department.  Six responses took over a year to issue, and the OIG found no response to 11 lead complaints.  Region V staff did not see these complaints as indicative of a problem in Flint, and certainly not a pressing one.  In sum, the bureaucratic fog that impaired the federal response to the Flint water crisis is noteworthy not just in the context of how EPA operates but also as to the broader contemporary concern over the existence of a Deep State that subjugates public concerns to its own needs, processes and schedules.

Uneasy Easements: The Use and Abuse of the Conservation Easement Tax Break

Posted on April 22, 2019 by Philip Tabas

Conservation easements have become the most popular approach for protecting lands, water, wildlife and historic structures in the US.  Thanks in large part to the Federal income tax deduction for gifts of permanent conservation easements enacted in 1980, over 27 million acres of private lands and the wildlife on them have been protected across the country using this conservation mechanism. A charitable gift of a conservation easement has afforded landowners a way to protect the places they cherish while providing conservation groups with a cost-effective land protection tool.

Today however, this conservation mechanism is under assault. Certain easement promoters are focused more on tax benefits than the conservation outcomes that can be achieved through conservation easements. The historically successful use of the conservation incentive by owners of environmentally significant land has led some to promote the abuse of conservation easements purely for their tax shelter value as an element of a complex financial instrument. Over the past ten years, there has been an extraordinary increase in tax deductions claimed by these investment partnerships for conservation easement donations. This activity has been brought to light by information provided by the IRS to Congress and publicized by several news publications.

Typically, tax shelter promoters have been selling interests in tracts of land to taxpayers/investors looking for large tax deductions. The promoter puts together a group of taxpayers/investors, in a legal form called a “syndication” or partnership, to buy the land, donate conservation easements and then sell or develop the underlying land later. In these arrangements, the promoter of the syndication often obtains an appraisal of the tract of land which uses unrealistic assumptions on which to base the appraised value and then grants conservation easements on that land using the inflated valuations. The resulting inflated charitable deductions are then split among the taxpayers/investors.

According to IRS data, these syndications claimed more than $20 billion in charitable deductions since 2010. In 2016 alone, 248 entities claimed $6 billion in deductions.  IRS data from 2018 show that a sampling of these transactions enabled investors to claim, on average, deductions valued at nine times the amount of their original investment. Based on the most current data available, the claimed tax value of donated conservation easements nearly tripled – from $1.1 billion to $3.2 billion – from 2013 to 2014.

Fortunately, there are efforts being undertaken to curb these practices. In December 2016, the IRS issued Notice 2017-10 wherein the IRS categorized donations from these easement syndications as “listed transactions.” This means that promoters of and participants in these transactions must report their syndication activities to the IRS or face fines. In September 2018, the IRS made abusive conservation easement tax shelters one of five new targeted compliance campaigns and in March 2019, the IRS listed syndicated conservation easements as one of its “Dirty Dozen” tax scams to avoid. In December 2018, the U.S. Department of Justice filed a civil complaint against one of the nation’s largest promoters of syndicated easement transactions for an allegedly abusive conservation easement syndication tax scheme. And, finally, in March 2019 the Senate Finance Committee Chair and Ranking Member initiated an inquiry with 14 individuals suspected of being involved in these syndication transactions. Despite the IRS and the DOJ announcing formal actions to thwart this abuse of the federal tax code, the promoters of these abusive deals continue to conduct business as usual.

A broad coalition of organizations including, among others, the Land Trust Alliance, Ducks Unlimited, The Nature Conservancy, The Trust for Public Land, The Conservation Fund, the Appraisal Institute, and the American Society of Farm Managers and Rural Appraisers is advocating for enactment of the Charitable Conservation Easement Program Integrity Act of 2019 (S. 170/H.R. 1992.) If passed, this bill would disallow charitable deductions for pass-through entities where tax benefits for donations of conservation easements are claimed when property is held for only a short time and appraisal valuations are excessive. The bill was introduced on January 18, 2019 by Senators Daines (MT- R) and Stabenow (MI-D) and on March 28, 2019 by Representatives Mike Kelly (PA-R) and Mike Thompson (CA-D).

Proponents of continued use of the syndicated approach for easement transactions argue that syndications bring needed new capital to conservation which otherwise might not be available. They suggest that the solution to abuses involves greater regulation of appraisers to produce more accurate and well-substantiated valuations and to require greater obligations on conservation organizations accepting easement donations to report to the IRS a description of each conservation easement donation they receive and the fair market value of those donations. However, under tax law requirements enacted in 2006, appraisals used to substantiate charitable contributions are already required to follow relevant professional standards known as the Uniform Standards of Professional Appraisal Practice, which require an assessment of the economically realistic highest and best use of the land. And, also under current law, donors are already required to provide to the IRS a description of any conservation easement valued at $5,000 or greater as well as a statement of the conservation purpose that the easement is designed to serve.

Continued abuse of the charitable conservation easement tax deduction by syndicated easement transactions, which may have allowed some taxpayers to profit by gaming the tax code deprives the federal government of billions of dollars in revenue, distorts the fiscal impact of legitimate conservation easement gifts and adversely affects other related conservation easement programs (e.g. state tax credits for easement gifts.) If allowed to stand, these arrangements could cause lawmakers and the public to question the continued legitimacy of mainstream conservation transactions and may result in challenges to continuation of the Federal conservation easement tax benefit itself.

Conservation transactions and practices that do not always meet both the letter and the spirit of easement law must not be allowed to endanger the thousands of legitimate conservation easements and the well-intentioned, conservation-minded landowners behind them.

Clean Water Act §401—Whose Certification Is It?

Posted on April 19, 2019 by Richard Glick

As part of the Administration’s policy in favor of domestic oil and gas development, President Trump issued an Executive Order on April 10 “Promoting Energy Infrastructure and Economic Growth.”  The EO seeks to make the regulatory process more efficient and to create “increased regulatory certainty.”   

A policy focus in the EO is water quality certification under section 401 of the Clean Water Act.  Section 401 provides that before a federal agency may approve a project that could result in a “discharge” to navigable waters, the state or tribe with jurisdiction must certify that the discharge would comply with water quality standards, effluent limitations and “other appropriate requirements of State law.”  The statute imposes a one-year period for the state or tribe to act. 

This issue arises most often in the context of permits issued by the Corps of Engineers under section 404 of the CWA to fill wetlands, and licenses issued by the Federal Energy Regulatory Commission for hydroelectric projects under the Federal Power Act.  Both trigger state review under section 401.  Gas pipelines and LNG terminal developments almost always involve stream crossings or shoreline work, which means filling of wetlands.

The EO directs EPA to take the lead to review federal policy and regulations concerning section 401 implementation.  In particular, EPA is to revisit the 2010 interim guidance entitled “Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and Tribes.”  In its review, EPA is directed to focus on a list of issues, including the appropriate scope of 401 review, the “types of conditions that may be appropriate to include in a certification,” reasonable review times and how much information should be requested of the applicant.

Who could be opposed to improved regulatory efficiency and certainty?  To be sure, the section 401 process can be contentious and time consuming. Although section 401 prescribes a one-year review period, the issues are thorny and it has become a common practice for applicants to withdraw and refile applications to restart the clock.  A recent decision by the D. C. Circuit Court of Appeals throws a shadow on that practice, but one year doesn’t necessarily mean one year.  It is also true that states have used section 401 as a cudgel to block LNG developments, as in the AES Sparrows Point LNG Project.

The problem with the EO is that it directs EPA to “fix” a problem over which it has little authority.  Section 401 is a program administered by the states and EPA has just a marginal role to ensure that one state’s 401 decision doesn’t violate a downstream state’s water quality standards.  Even EPA’s 2010 interim guidance is just a compendium of case law and general principles to aid state implementation, not a document that establishes policy.

Indeed, the scope of state section 401 authority is broad, and states use that authority to promote state policies far beyond water quality standards.  Any limitations on state discretion over the process and conditions of certification are likely to come from the courts, not EPA.  States are not shy in asserting their sovereignty and no state is going to cede any of its authority to EPA, regardless of what any new guidance or rules might suggest.

ACOEL Announces Its First Memorandum of Understanding with a Cuban Environmental Foundation

Posted on April 18, 2019 by David B. Farer

For the past three years, the Cuba Working Group of the ACOEL International Pro Bono Committee has been making concerted efforts to establish a formal relationship with a Cuban entity that will allow Fellows of the College to engage in pro bono activities to assist the Cuban people in addressing particular environmental concerns and issues.

We are pleased to announce that the College has now entered a Memorandum of Understanding with the largest environmental foundation in Cuba, the Foundation Antonio Nunez Jimenez of Nature and Humanity.

Figure 1- Signing of the MOU between ACOEL and FANJ, February 14,2019 by Foundation President Liliana Nunez Velis and ACOEL Fellow David Farer

The MOU was signed at a formal ceremony at the offices of the Foundation in Havana on February 14, 2019.  Liliana Nunez Velis, President of the Foundation and daughter of founder Antonio Nunez Jimenez, signed for the Foundation.  I was there on behalf of the College with delegation of authority from ACOEL President Allan Gates.

Figure 2 - Handshake after the MOU signing: Nunez Velis and Farer

Meetings ensued with senior foundation staff on developing ideas for initial collaborations.  We will be communicating with ACOEL Fellows further once the topics are set and we are prepared to solicit interest for participation.

We also met with the environmental law faculty of the University of Havana, with whom we also had discussions and with whom we hope to proceed on collaborative projects in the future.

Figure 3 - Environmental Law faculty at the Univ. of Havana, with ACOEL Fellow David Farer and his wife Elisa King, in front of the Alma Mater statue on the stairway entrance to the University

The Foundation -- also known as FANJ -- is a non-governmental institution engaged in research and advancement of environmental projects and programs from both scientific and cultural perspectives.  They have described their mission as that of creating a culture of nature, seeking harmony between society and the environment.

Our efforts to establish such a relationship began with an initial delegation to Havana in September 2016.  This led to an invitation to submit a paper for consideration in preparation for the XI International Convention on Environment & Development, in Havana.  Mary Ellen Ternes and I submitted a paper, Lessons Learned: Effective Environmental Regulation of Critical Infrastructure Development & Operation.  It was accepted, and Mary Ellen and I presented it at the July 2017 convention in Havana.   Our paper on the topic was also published in the proceedings of the convention.

Subsequent communications ensued, and then recent discussions in both New York City and Havana led to development of the MOU with FANJ and the recent agreement on its terms.

As the MOU recites, ACOEL and FANJ are looking forward to separately engaged ACOEL Fellows working with FANJ representatives to explore the contributions that each organization's Fellows and representatives can make to the other, including development of training on specific topics in environmental law, participation in events and advice on capacity building, and in sharing the knowledge and experience of the representatives and Fellows of the two organizations.

New UN Special Rapporteur Links the Right to a Healthy Environment to Air Pollution’s Deadly Impact Across the Globe

Posted on April 12, 2019 by Susan Kath

Professor John Knox, former UN Special Rapporteur for Human Rights and the Environment, began in 2012 to study the obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, as part of the United Nations Human Rights Council special procedures. When his two terms ended in 2018, he had mapped the statements of human rights bodies on human rights obligations relating to the environment, and produced thematic reports covering human rights obligations relating to climate change, biodiversity, and children’s rights. Knox also compiled more than 100 good practices in fulfilling those obligations and helped to establish a website for environmental defenders. His capstone contribution, the Framework Principles, identifies 16 principles relating to human rights and the environment and explains how existing human rights obligations should be applied in the environmental context.

The ultimate goal, UN recognition of the human right to a healthy environment, has now been put before the General Assembly by Knox’s successor, Professor David Boyd, who presented a comprehensive argument for the right to that body in the fall of 2018. Boyd, a champion of the right, will be vigorously campaigning for its recognition over the next three years, along with other projects for his mandate.

With the issuance of his most recent report in February, Boyd looks beyond the general right and focuses on the components of the right---in this case, the right to breathe clean air. Around the world, air quality is degraded by both ambient and household air pollution, with the adverse health effects highest in low- and middle-income countries. Notably, more than 90 percent of the world’s population lives in regions that exceed World Health Organization guidelines for healthy ambient air quality, specifically with respect to fine particulate matter (PM 2.5). What does this mean in real terms? It means that over 6 billion people, including 2 billion children, are breathing polluted air with adverse consequences: taken together, ambient and household air pollution contribute to 7 million premature deaths annually, including the deaths of approximately 600,000 children.  Unsurprisingly, most of those impacted are also the most vulnerable—women, children, the elderly, minorities, indigenous peoples and members of traditional communities, and people living in poverty.

So what does Boyd offer as the way forward? First, he observes that poor air quality has implications for an array of human rights: the rights to life, health, water, food, housing and an adequate standard of living. Second, he reaffirms the position advanced by Knox that States have obligations to protect the enjoyment of human rights from environmental harm. As embodied in Knox’s Framework Principles, that means States have procedural, substantive, and special obligations towards those in vulnerable situations. Third, he identifies the seven key steps that States must take in fulfilling the right to breathe clean air:

  • monitor air quality and impacts on human health
  • assess sources of air pollution
  • make information publicly available, including public health advisories
  • establish air quality legislation, regulations, standards and policies
  • develop air quality action plans at the local, national, and, if necessary, regional levels
  • implement an air quality action plan  and enforce the standard
  • evaluate progress and, if necessary, strengthen the plan to ensure that the standards are met

With each of these steps, States must fully inform the public and provide an opportunity to participate in the decision-making process. Businesses, a major source of air pollution, should comply with the UN Guiding Principles on Business and Human Rights and the Children’s Rights and Business Principles. Boyd also notes that special attention must be paid to environmental defenders engaged in activities to protect the right to clean air.

Boyd also explains that not all the news is bad, sharing a number of good practices, such as laws, policies, programs and initiatives that are lessening the impact of human rights violations caused by air pollution. These include establishing or improving air quality monitoring networks in places like Morocco and Azerbaijan and decreasing the proportion of households using solid fuels for cooking and heating in Latin America.

Boyd closes the report with a list of 20 recommendations that States should consider as part of their national air quality action plans, and he also implores us to act:  

The failure to respect, protect and fulfill the right to breathe clean air is inflicting a terrible toll on people across the world. The statistics presented in the present report depict a public health catastrophe, yet the numbers fail to capture the magnitude of human suffering involved. Each premature death, every illness and every disability afflicts an individual with hopes, dreams and loved ones. Air pollution is a preventable problem. The solutions-laws, standards, policies, programmes, investments and technologies-are known. Implementing these solutions will of course entail large investments, but the benefits of fulfilling the right to breathe clean air for all of humanity are incalculable.

Incalculable, indeed. And worth our collective effort to pursue at every level.

“A Hard Rains A-Gonna Fall” – Utility-Scale Solar Projects Creating Significant Stormwater Issues

Posted on April 9, 2019 by Mark R. Sussman

With apologies to Bob Dylan for taking the name of his song out of context, hard rains are going to fall, and some developers of utility-scale solar projects seem to have underestimated the damage that such rains can cause.  Over the past several years, a number of large scale solar projects in Connecticut have discharged significant amounts of sediment into wetlands and watercourses, harmed down-gradient property owners, and posed a threat to habitat essential to threatened or endangered species.  These projects have violated stormwater permitting requirements, resulting in the issuance of cease and desist orders, the imposition of civil penalties and remediation requirements, and triggering justifiable public opposition to renewable energy projects.

Utility-scale solar projects in Connecticut generally range from 10 to 20 megawatts (MW).  These projects can disturb upwards of 100 acres of land.  Usually the site selection process for these projects focuses on the ability to interconnect to the power grid, land availability, and cost.  Stormwater management issues have been a secondary concern, typically addressed in the first instance by conceptual, high level plans, rather than through site-specific soils investigations, detailed grading plans, and rigorous stormwater design calculations and analysis. 

In Connecticut, utility-scale solar projects must first be approved by the Connecticut Siting Council.  In December 2017, the Council denied an application to site a 50 MW project that would have disturbed 270 acres.  The Council denied the application, without prejudice, in large part because the application did not contain sufficiently detailed information regarding grading, and erosion and stormwater control.  The Council was concerned about stormwater management and sedimentation impacts to wetlands and watercourses that were in close proximity to the limits of disturbance and the resulting detrimental effect on water quality.

Once a solar project is approved, the developer must apply to the Connecticut Department of Energy and Environmental Protection (“DEEP”) for the General Permit for the discharge of Stormwater from Construction Activities or for an individual stormwater permit. DEEP approved the stormwater registrations for the early utility-scale solar projects in Connecticut without significant scrutiny, with the apparent expectation that the construction contractors and their stormwater professionals understood how to minimize erosion and sedimentation discharges during construction.  Unfortunately, there have been numerous incidents of significant stormwater damage and complaints from down-gradient property owners during and after the construction of solar facilities.  These problems have occurred either because the construction contractor, in an effort to meet contract deadlines, may have skipped steps such as failing to stage construction and clear only five acres at a time, or because the site engineers miscalculated the stormwater impacts from the extensive disturbance of the land’s natural condition.  In light of the repeated problems caused by erosion and sedimentation at solar construction sites, Connecticut has required more detailed site-specific documentation regarding stormwater flows and management systems, and has become more aggressive in its enforcement.   

In 2017 and 2018, DEEP issued several cease and desist orders temporarily halting the construction of solar projects until the projects revised their stormwater pollution control plans and installed improved erosion controls.  The Department also issued consent orders to some projects requiring remediation of impacted wetlands, watercourses and down-gradient properties, habitat restoration plans for some threatened species, and the posting of financial assurances of as much as $1 million. Two recent consent orders included civil penalties of between $200,000 and $575,000.  The Department also recently rejected a stormwater application for a 20 MW solar project, concluding that the submitted stormwater pollution control plan lacked sufficient detailed information necessary for the design of erosion and sediment controls and long term stormwater management measures post-construction to demonstrate that the project would adequately control stormwater impacts.

The lesson that should be learned from the Connecticut experience with constructing utility-scale solar projects is that developers need to devote sufficient resources to evaluate and design appropriate erosion and sedimentation controls earlier in the development process, and they need to hire qualified stormwater management consultants and pay careful attention to the proper implementation of stormwater controls, both during and after construction.  This means going beyond describing generic stormwater management controls in their applications for approval, and taking stormwater management seriously.  They need to understand that “A Hard Rains A-Gonna Fall” and cause damage to the environment if sufficient stormwater management controls are not correctly implemented.  If solar project sponsors are not careful, the public perception of solar projects will be negatively impacted by these stormwater-induced incidents, and support for these renewable energy projects will decline.

North to the Future: Alaska and the Risks of Pursuing a Trump Legacy

Posted on April 5, 2019 by Peter Van Tuyn

On the last Friday in March, Judge Sharon Gleason of the Federal District Court for the District of Alaska issued two opinions in closely-watched cases* concerning federal public lands and waters in and offshore of Alaska.  In both cases, the Trump administration’s actions were overturned by the court, having immediate impact on two State of Alaska priorities and potential impact on a number of other State and private development efforts. 

The first case concerns a land trade approved by Interior Secretary Ryan Zinke in which the United States agreed to transfer formal Wilderness in the Izembek National Wildlife Refuge to an Alaska Native Corporation.  Izembek Refuge is internationally significant and of critical importance to many species of wildlife, including migratory waterfowl.  For example, virtually the entire global populations of Pacific Brant and Emperor Geese migrate through Izembek.  The land trade was intended to enable the construction of a road between the Alaska communities of Cold Bay and King Cove.  In multiple analyses since the 1980s the Interior Department had found that such a road would harm wildlife in the Refuge.  In 2013 Interior Secretary Sally Jewell formally rejected a land trade due to harm it would cause to “irreplaceable ecological resources,” and because “reasonable and viable transportation alternatives” exist between the communities.  In 2018, Secretary Zinke reversed course and approved the land trade.  A coalition of conservation groups then sued.

In rejecting the land trade, Judge Gleason found that Secretary Zinke had not addressed anywhere in the record his reasons for reversing course; indeed, he had not even acknowledged the change in agency position. Relying on the seminal U.S. Supreme Court administrative law cases of Motor Vehicle Manufacturers v. State Farm and FCC v. Fox, which require an acknowledgement and reasoned explanation for such a change of course, Judge Gleason invalidated the land trade, writing that while a court should “‘uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,’ a court may not ‘supply a reasoned basis for the agency’s action that the agency itself has not given.’”

Later that same day Judge Gleason issued an opinion in a challenge to a 2017 President Trump executive order concerning areas where offshore oil and gas leasing can take place.  In that case, conservation organizations and an Alaska Native-focused NGO challenged Trump’s  revocation of President Obama’s earlier withdrawals from oil and gas leasing of most of the United States’ Arctic Ocean and a number of canyons within the Atlantic Ocean. 

This lawsuit turned on an interpretation of presidential withdrawal authority under the Outer Continental Shelf Lands Act. Section 12(a) of OCSLA provides the president with the clear authority to withdraw certain areas of the Outer Continental Shelf from oil and gas leasing, and the central question in the lawsuit was whether it also provides authority for a president to undo existing  withdrawals that were intended, like Obama’s Arctic and Atlantic actions, to be of unlimited duration.  Judge Gleason found that section 12(a) authority works only in the direction of presidential withdrawals, and not the undoing (or “revocation”) of such withdrawals.

Looking to the future, should Acting (and likely soon-to-be-confirmed) Secretary David Bernhardt revisit the Izembek land trade, he will need to either win on appeal during his tenure (should he take one) or directly confront the agency’s previous rejection of a land trade and the reasons for that rejection.  Furthermore, Trump’s “energy dominance” effort to expand offshore oil drilling in the Arctic Ocean is dealt a blow.  Notably, the OCSLA issue is similar to one raised in litigation over Trump’s revocation of National Monument designations under the Antiquities Act and Judge Gleason’s treatment of the issue thus may influence other courts. 

More broadly than even these implications, the two Gleason decisions may portend the result of other Alaska-related federal policy and decision-making.  For example, the Corps of Engineers is fast-tracking Clean Water Act section 404 permitting for the proposed Pebble mine in Southwest Alaska.  And the proposed mine’s developers are trying to get EPA to reverse course on its intended use of its Clean Water Act section 404(c) authority to restrict or prevent any Corps’ permit for the mining of the Pebble ore deposit.  EPA’s proposed restrictions were based on a Bristol Bay Watershed Assessment, which the developer had waived challenging in settling a previous lawsuit with EPA.  Given the clarity of Judge Gleason’s Izembek opinion on what it would take for the agency to reverse course, and the settled science of EPA’s watershed assessment, securing a 404 permit won’t be as simple for proponents as winning a policy argument, which appeared to be the case with the Izembek land trade. 

Looking back to the Interior Department, the Bureau of Land Management is moving forward with oil and gas lease sales on the Coastal Plain of the Arctic Refuge.  Critics of that effort, including a former Interior official, say the legal process is being illegally shortcut, which is an attribute it may thus share with the Izembek land trade.  Interior is also speedily-redoing a 2013 management plan for the 23 million acre National Petroleum Reserve with a goal of expanding oil and gas leasing in the Reserve starting in 2020.    

Ironically, on Thursday, March 28, the day before Judge Gleason issued her decisions, Interior Secretary-nominee David Bernhardt had his confirmation hearing before the U.S. Senate Energy and Natural Resources Committee.  This committee is chaired by Alaska’s Senator Lisa Murkowski, who is a supporter of expanded oil and gas development on federal lands in and offshore of Alaska.  The judicial smackdown the next day, however, is sure to complicate Bernhardt’s efforts to implement such an agenda before the next presidential term, which is the timeframe which appears to underly Interior’s and other agencies’ efforts on Alaska issues.  And if the rush to secure more decisions in this presidential term leads to more losses in court, Alaska development interests could face complicated bureaucratic and legal landscapes, and strong political backlash, well into the future.

* Izembek case:  Friends of Alaska Wildlife Refuges, et al, v. Bernhardt, 3:18-cv-00029-SLG (March 29, 2019, D. Ak).

* Arctic OCS case:  League of Conservation Voters, et al, v. Trump, 3:17-cv-00101-SLG (March 29, 2019, D. Ak)