Part III

The 100 Environmental Harms in Priority Order with Updates

Part III was maintained and updated from November 7, 2020 until January 20, 2021, the period between the election and the inauguration, when it was anticipated that the Trump administration would be finalizing last minute regulations and policies on the environment. As the Biden-Harris team takes actions to reverse, restore and restart environmental programs, we will not be updating the report, but instead relying on the administration to report its progress.

  1. Submitted notice of intent to withdraw the United States from the Paris climate agreement
  2. Rescinded the 2013 President’s Climate Action Plan and 2014 Climate Action Plan Strategy to Reduce Methane Emissions
  3. Revoked Executive Order 13653 “Preparing the US for the Impacts of Climate Change”
  4. Revoked a presidential directive for federal agencies to minimize impacts on water, wildlife, land and other natural resources when approving development projects
  5. Weakened the standards for fuel economy and greenhouse gas emissions for passenger cars and light trucks
  6. Proposed limiting the studies used by the EPA for rulemaking to only those that make data publicly available
  7. Proposed opening most of America’s coastal waters to offshore oil and gas drilling
  8. Eliminated and streamlined some permitting regulations and relaxed the environmental review process to speed construction of public infrastructure projects, such as roads, bridges, and pipelines
  9. Proposed more than doubling the time allowed to remove lead pipes from community water systems with unsafe levels of lead
  10. Withdrew and loosened directives and guidance to federal agencies meant to reduce carbon dioxide and other greenhouse gas emissions
  11. Opened millions of acres of public land for oil and gas leases across the western US
  12. Stopped payments to the Green Climate Fund, the United Nations program to help poorer countries reduce carbon emissions
  13. Allowed leases and permits for drilling in the Arctic National Wildlife Refuge
  14. Lifted a freeze on new coal leases on public lands
  15. Removed or struck climate change and associated text from federal plans, reports, and websites
  16. Reduced the size of two national monuments in Utah
  17. Reversed the position of the EPA and entered into a legal settlement with a Canadian corporation seeking to build the Pebble Mine in Alaska’s Bristol Bay watershed
  18. Replaced the Clean Power Plan with a new version, the Affordable Clean Energy Rule, that would let states set their own standards for carbon emissions from coal and gas-fired power plants
  19. Scaled back pollution protections for certain tributaries and wetlands that were regulated under the Clean Water Act
  20. Revised land management plans and developed land use plans to allow increased development, pipelines, drilling, mining, logging, and grazing on federal lands
  21. Overturned guidance that ended US government financing for new coal plants overseas except in rare circumstances
  22. Withdrew a number of Department of the Interior science, climate change and conservation policies
  23. Weakened the standards for carbon dioxide emissions from new, modified, and reconstructed power plants
  24. Allowed leasing for drilling and resource extraction adjacent to Chaco Culture National Historical Park
  25. Approved the Keystone XL Pipeline right of way permit
  26. Eliminated the “net conservation gain” goal for projects that impact federal lands
  27. Weakened the way the Endangered Species Act is applied, making it more difficult to protect wildlife from long-term threats posed by climate change
  28. Weakened EPA guidance designed to limit toxic emissions from major industrial polluters
  29. Rejected a proposed ban on several potentially dangerous chemicals
  30. Weakened the protection of birds under the Migratory Bird Treaty Act so that incidental takes are not a violation
  31. Revised the New Source Review program to reduce the EPA’s oversight of industry actions and protections for communities from pollution
  32. Proposed authorizing the incidental harming or killing of polar bears in the Arctic National Wildlife Refuge during oil and gas exploration
  33. Eliminated the environmental compliance and permitting process for certain projects that cross international borders, such as oil pipelines
  34. Proposed opening more land in the Alaska National Petroleum Reserve for oil drilling
  35. Withdrew a policy of climate adaptation for the National Park Service under Director’s Order 100
  36. Restricted most environmental impact statements to a maximum of 150 pages and must be completed in 12 months
  37. Reorganized the Department of the Interior into “super-regions”, removing career leadership and replacing them with political leadership
  38. Weakened habitat protections for sage grouse and opened nine million acres of western land to oil and gas drilling
  39. Approved construction of the Dakota Access Pipeline less than a mile from the Standing Rock Sioux Reservation
  40. Revoked an Executive Order designed to preserve ocean, coastal and Great Lakes waters in favor of a policy focused on emphasizing using the waters to promote energy production and economic growth
  41. Revoked an Executive Order promoting climate resilience in the northern Bering Sea region of Alaska
  42. Exempting certain types of power plants from limiting toxic discharge into public waterways
  43. Renewed leases for a copper and nickel mining operation on the border of Minnesota’s Boundary Waters Canoe Area Wilderness
  44. Proposed changes to the way cost-benefit analyses are conducted under the Clean Air Act, Clean Water Act, and other environmental statutes
  45. Changed Federal Energy Regulatory Commission policy so that the indirect effects of greenhouse gas emissions are not considered in environmental reviews of pipelines
  46. Weakened offshore drilling safety regulations implemented following the 2010 Deepwater Horizon explosion and oil spill
  47. Proposed weakening rules on offshore oil and gas exploration by floating vessels in the Arctic
  48. Exempted the Tongass National Forest in Alaska from the roadless rule, allowing previously banned logging and road construction
  49. Eliminated the EPA’s National Center for Environmental Research which funds scientific research on children’s health and environmental health disparities
  50. Reduce conservation protections and open more lands to drilling and mining in western Alaska
  51. Eliminated a proposed rule that required mines to prove they could pay to clean up future pollution
  52. Opened the Northeast Canyons and Seamounts National Monument to commercial fishing
  53. Removed blanket rule under the Endangered Species Act that automatically conveys the same protections for threatened species as for endangered species and to reduce critical habitat
  54. Repealed the Bureau of Land Management Planning Rule
  55. Eliminated the requirement that oil and gas companies report methane emissions
  56. Revised and partially repealed a rule limiting methane emissions on federal and tribal land
  57. Limited funding of environmental and community development projects through corporate settlements of federal lawsuits
  58. Proposed plans to speed up and weaken environmental reviews and land management planning processes, including the addition of new exemptions
  59. Weakened the Petroleum Refinery Sector regulations that govern how refineries monitor pollution in surrounding communities
  60. Eliminated the use of a planning system designed to minimize harm from oil and gas activity on sensitive landscapes such as national parks
  61. Weakened the requirement that companies monitor and repair methane leaks from wells, pipes, and storage facilities
  62. Limited the ability of individuals and communities to challenge EPA-issued pollution permits
  63. Weaken Endangered Species Act enforcement regarding incidental harming or killing of endangered species
  64. Allowed elephants shot for sport in Zimbabwe and Zambia to be imported back to the US as trophies
  65. Increased logging of forest on federal land to “prevent future wildfires” like the deadly blazes in California in 2018
  66. Weakened oversight of state and federal plans to reduce air pollution and regional haze
  67. Streamlined the approval process for drilling for oil and gas in National Forests to allow producing to begin more quickly
  68. Offered the largest-ever 77 million acre oil and gas lease auction in the Gulf of Mexico
  69. Reduce conservation protections by revising the California Desert Renewable Energy Conservation Plan
  70. Weakened the Endangered Species Act reclassification, listing determination, and critical habitat designation for many species
  71. Eliminated most of the requirements of the 2017 Chemical Disaster Rule aimed at improving safety at sites that use hazardous chemicals
  72. Allow the federal government to issue permits for coal ash waste disposal in Indian Country and some states without review if the disposal site is in compliance with federal regulations
  73. Weakened BLM environmental regulations for water pollution and fracking on federal and Indian lands
  74. Revised the process for permitting incidental harming or killing of eagles
  75. Weakened a portion of the Clean Water Act regulations to limit states’ power to veto pipeline and other infrastructure projects due to water quality concerns
  76. Weakened standards for mercury emissions from coal power plants by creating a new method of calculating the costs and benefits of curbing mercury pollution
  77. Canceled existing rule and proposed revising limits on the number of endangered marine mammals and sea turtles that can be unintentionally killed or injured with sword-fishing nets on the West Coast
  78. Repealed the Stream Protection Rule
  79. Rescinded regulations meant to reduce leaking and venting of powerful greenhouse gases known as hydrofluorocarbons from large refrigeration and air conditioning systems
  80. Approved chemicals out of compliance with the Toxic Substances Control Act as amended in 2016
  81. Weakened regulations regarding mining for gold, copper, and other “locatable minerals” on public lands
  82. Withdrew a proposed regulation requiring groundwater protections for certain uranium mines
  83. Allowed coastal replenishment projects to use sand from protected ecosystems
  84. Weakened the rule requiring industry reporting on the release of toxic perfluorinated “forever” chemicals into the environment
  85. Permitted the use of seismic air guns for gas and oil exploration in the Atlantic Ocean
  86. Approved a land exchange agreement that will allow a remote Alaskan village to construct a road through the Izembek National Wildlife Refuge
  87. Allowed states and the EPA to take longer to develop and approve plans aimed at cutting methane emissions from existing landfills
  88. Ended a ban on certain controversial sport hunting practices in National Preserves and Wildlife Refuges in Alaska
  89. Proposed amending regulations regarding grazing on public lands to allow grazing to reduce wildfire risk
  90. Repealed the rule that state and regional authorities track tailpipe emissions from vehicles on federal highways
  91. Eliminated the requirement that Gulf oil rig owners prove they can cover the costs of removing rigs once they stop producing
  92. Proposed expanding hunting and fishing in national wildlife refuges
  93. Proposed expanding off-road vehicle access and increased motorized use on some National Park Service areas
  94. Allow individual property owners to veto area listing on the National Register of Historic Places
  95. Weakened restrictions on pesticide application in agricultural buffer zones
  96. Loosened fishing restrictions intended to reduce bycatch of Atlantic Bluefin tuna
  97. Ease permitting of rights-of-way across lands managed by the Fish and Wildlife Service
  98. Amend permitting regulations to increase offshore wind development
  99. Allow religious use of eagle feathers by non-Native Americans
  100. Eliminate the 15-day protest period on timber sales from BLM public lands

#1: SUBMITTED NOTICE OF INTENT TO WITHDRAW THE UNITED STATES FROM THE PARIS CLIMATE AGREEMENT

BACKGROUND

The Paris Agreement was an addition to the United Nations Framework Convention on Climate Change, initially agreed to by all 195 countries including the United States at the December 2015 United Nations Climate Change Conference. Emissions targets for each nation were separately negotiated and are voluntarily enforced, leading United States officials to regard the Paris Agreement as an executive agreement rather than a legally binding treaty. This removed the requirement for the United States Congress to ratify the agreement. In April 2016, the United States became a signatory to the Paris Agreement, and accepted it by President Obama’s executive order in September 2016. On November 4, 2019, the Secretary of State of the Trump administration formally notified the United Nations that the United States would withdraw from the Paris Agreement. The withdrawal went into effect November 4, 2020.

RESTORATIVE ACTION

The Biden administration can announce its intent to rejoin the Paris Agreement and publicly commit to the goals in the agreement.

RESPONSIBLE AGENCY

Office of the President

UPDATES

No updates - as of Nov 4, US officially pulled out of Paris Climate Agreement

#2: RESCINDED THE 2013 PRESIDENT’S CLIMATE ACTION PLAN AND 2014 CLIMATE ACTION PLAN STRATEGY TO REDUCE METHANE EMISSIONS

BACKGROUND

In 2013 and 2014, President Obama issued the administration’s Climate Action Plan and the Climate Action Plan Strategy that set specific goals for reduction in carbon emissions, transition to renewable energy, and addressing climate change. In addition, the plans required significant reductions in methane emissions, a greenhouse gas that is often released into the atmosphere during oil and gas development. President Trump’s Executive Order (EO) 13873, issued in March of 2017, specifically rescinded these two plans and called for all federal agencies to halt any climate change response and instead work on the opening of public lands for fossil fuel production and weakening of regulations on the release of greenhouse gases.

RESTORATIVE ACTION

The Biden administration can update and release new versions of both the Climate Action Plan and the Climate Action Plan Strategy to set specific targets for the federal agencies, and revoke President Trump’s EO.

RESPONSIBLE AGENCY

Office of the President

UPDATES

No updates - rescinded by EO 13783

#3: REVOKED EXECUTIVE ORDER 13653 “PREPARING THE US FOR THE IMPACTS OF CLIMATE CHANGE

BACKGROUND

Executive Order 13653, “Preparing the United States for the Impacts of Climate Change” was issued by President Barack Obama on November 1, 2013. The EO mandated a comprehensive, government-wide program to address climate change impacts and prepare for a rapidly changing climate. The EO addressed transportation, energy, public lands, infrastructure, natural resources, and active stakeholder engagement. The EO directed the agencies to manage climate risks with deliberate preparation, cooperation, and coordination in order to effectively improve resilience. Agencies were directed to coordinate and communicate across all levels of government and begin the transition to renewable energy and away from fossil fuels. The EO was rescinded by President Trump on March 28, 2017 and replaced with Executive Order 13783 “Promoting Energy Independence and Economic Growth” which eliminated many of the climate change directives and emphasized the development of oil, natural gas, coal, and nuclear energy resources.

RESTORATIVE ACTION

The Biden Administration can revoke the Trump EO and replace it with a new one that both addresses climate change response and a renewed emphasis on renewable energy.

RESPONSIBLE AGENCY

Office of the President

UPDATES

No updates - rescinded by EO 13783

#4: REVOKED A DIRECTIVE FOR FEDERAL AGENCIES TO MINIMIZE IMPACTS ON WATER, WILDLIFE, LAND AND OTHER NATURAL RESOURCES WHEN APPROVING DEVELOPMENT PROJECTS

BACKGROUND

President Obama issued a Presidential Memorandum on November 3, 2015 “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment” which underscored the importance of effectively mitigating adverse impacts to land, water, wildlife, and other ecological resources and having clear and consistent approaches to impact avoidance, minimization, and compensatory mitigation. President Trump issued Executive Order 13783 “Promoting Energy Independence and Economic Growth” which revoked the Obama Memorandum and placed a priority on economic development rather than conservation of air, water, wildlife, parks and public lands. This has resulted in a cascade of effects to the resources of the nation, from delisting of endangered species to the opening of public lands to development.

RESTORATIVE ACTION

The Biden administration can revoke and replace Executive Order 13783 and issue new guidance to the federal agencies to restore conservation as a priority.

RESPONSIBLE AGENCY

Office of the President

UPDATES

No updates - revoked by EO 13783

#5: WEAKENED THE STANDARDS FOR FUEL ECONOMY AND GREENHOUSE GAS EMISSIONS FOR PASSENGER CARS AND LIGHT TRUCKS

BACKGROUND

The Trump administration rolled back the 2012 rule agreed to by automakers (the Corporate Average Fuel Economy, or CAFE) which required automakers’ fleets to average 54 miles per gallon by 2025 by implementing a new rule that requires automakers’ fleets to average 40 miles per gallon, a 26% reduction in efficiency. The final rule lowering the standard to 40 miles per gallon is expected sometime in 2020.

RESTORATIVE ACTION

If finalized, the Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act. If the rule is not finalized, then the Biden administration can withdraw the rule.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

Federal Register: Publication date: 8/24/2018; Document type: Proposed rule; RIN: 2060-AU09 2127-AL76; Document Number: 2018-16820. There were two ICR results on OMB. OMB Control No 2127-0019: "49 CFR Part 537, Automotive Fuel Economy Reports (F.E.) Reports" with conclusive action "comment filed on proposed rule" and "Corporate Average Fuel Economy Reporting" received on 7/30/2020 with request type "Reinstatement without change of a previously approved collection"

Final rule published April 2020, corrected July 2020
The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks; Correction
Publication Date: 07/08/2020
Agencies:
Environmental Protection Agency
National Highway Traffic Safety Administration
Dates: This correcting document is effective July 8, 2020.
Effective Date: 07/08/2020
Document Type: Rule
CFR:
40 CFR 86
40 CFR 600
49 CFR 523
49 CFR 531
49 CFR 533
49 CFR 536
49 CFR 537
Agency/Docket Numbers:
NHTSA-2018-0067
EPA-HQ-OAR-2018-0283
FRL 10000-45-OAR
RIN:
2060-AU09
2127-AL76
Document Number: 2020-14642
Federal Register :: The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks; Correction

#6: PROPOSED LIMITING THE STUDIES USED BY THE EPA FOR RULEMAKING TO ONLY THOSE THAT MAKE DATA PUBLICLY AVAILABLE

BACKGROUND

In 2018 the EPA proposed a rule that would restrict the agency from considering studies that do not reveal raw data, including confidential or personal identifying information. This restriction would have a chilling effect on epidemiological studies that enroll human subjects, such as those examining lifetime effects of exposure to potentially hazardous chemicals. A supplementary rule expands this exclusion to include dose-response models, a critical study tool of environmental toxicology that is needed to inform rulemaking. This rule would allow the EPA to “cherry-pick” its data regardless of the consensus over toxicological or epidemiological data available for a given hazardous chemical. The rule would be retroactive, allowing the EPA to undo previous regulations by discounting the underlying scientific studies. The EPA anticipates a final rule in late 2020.

RESTORATIVE ACTION

The Biden administration can withdraw the rule if it is not final. If it is final, the Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

Federal Register Publication date: 4/17/2020; Document type: proposed rule; Document number: 2020-07348. RIN: 2080-AA14. On March 18, 2020, EPA published a supplemental notice of proposed rulemaking (SNPRM) titled “Strengthening Transparency in Regulatory Science” (85 FR 15396), which includes clarifications, modifications and additions to certain provisions in the Strengthening Transparency in Regulatory Science Proposed Rulemaking, published on April 30, 2018 (83 FR 18768). The SNPRM proposed that the scope of the rulemaking apply to influential scientific information as well as significant regulatory decisions. That notice proposed definitions and clarified that the proposed rulemaking would apply to data and models underlying both pivotal science and pivotal regulatory science. In the SNPRM, EPA also proposed a modified approach to the public availability provisions for data and models that would underly significant regulatory decisions and an alternate approach. Finally, EPA requested comment on whether to use its housekeeping authority independently or in conjunction with appropriate environmental statutory provisions as authority for the rulemaking. This most recent document extended the comment period on this SNPRM from April 17, 2020, to May 18, 2020.

#7: PROPOSED OPENING MOST OF AMERICA’S COASTAL WATERS TO OFFSHORE OIL AND GAS DRILLING

BACKGROUND

Under the Continental Outer Shelf Lands Act of 1953 (OCSLA), in January 2017 a final five-year plan (2017-2022) and Record of Decision was issued for oil and gas leasing on specific areas of the Outer Continental Shelf. The plan did not include leasing proposals in the north or mid-Atlantic and portions of the Arctic Ocean. In December 2016, using his authority under Section 12(a) of OCSLA, President Obama withdrew most of the OCS in the Atlantic and Arctic Oceans, protecting beaches and coastlines from impact. On April 28, 2017, President Trump issued Executive Order 13795 directing the Secretary of the Interior to revise the Obama five-year plan and revoked Obama’s 12(a) withdrawals. The Secretary issued Secretarial Order 3350 on May 1, 2017, which further directed the Bureau of Ocean Energy Management (BOEM) to develop a new National Outer Continental Shelf Oil and Gas Leasing Program. The Draft Proposed Plan for the 2019-2024 Program would make more than 98% of the Outer Continental Shelf resources available for oil and gas leasing during that period. A federal judge ruled in March 2019 that President Trump’s reversal of President Obama’s Section 12(a) withdrawal of drilling in the Atlantic and Arctic Oceans was unlawful. The case is on appeal. More recently, the Trump administration issued a Presidential Memorandum under Section 12(a) of OCLSA that withdrew portions of the Atlantic and Gulf of Mexico off the shore of Florida in response to southern Governors’ opposition to oil and gas development offshore.

RESTORATIVE ACTION

The Biden administration can continue implementation of the Obama era 5-year plan as well as begin planning on the new 5-year plan. The Biden administration can also drop the legal defense of President Trump’s attempt to reverse the Obama moratorium on coastal water oil and gas leasing based on the Alaska district court ruling and abide by the Obama era Section 12(a) withdrawal. The Biden administration can also address President Trump’s most recent Section 12(a) withdrawal of the southern Atlantic OCS from energy development to confirm its scope to only fossil fuel development.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

As noted in harm text -- ahead of the 2020 election, Trump announced he would exempt coastal areas around Florida, a crucial battleground state, Georgia and South Carolina from drilling. As of October 2020, "Seismic blasting efforts are being stopped in the Atlantic Ocean after litigation in court revealed the industry can't renew certain permits in time. According to a press release from the Southern Environmental Law Center, a conference on seismic litigation showed the industry will no longer pursue efforts for seismic blasting to find offshore oil in the Atlantic Ocean this year, and possibly several more years...Due to Incidental Harassment Authorizations (IHA) expiring Nov. 30 and no clear way to extend them, oil industry leaders will be unable to launch any boats this year." https://abcnews4.com/news/local/seismic-blasting-for-offshore-oil-halted-in-atlantic-ocean

#8: ELIMINATED AND STREAMLINED PERMITTING REGULATIONS AND RELAXED THE ENVIRONMENTAL REVIEW PROCESS TO SPEED CONSTRUCTION OF PUBLIC INFRASTRUCTURE PROJECTS, SUCH AS ROADS, BRIDGES, AND PIPELINES

BACKGROUND

In January of 2015 President Obama issued Executive Order 13690 “Establishing a Federal Flood Risk Management Standard”. The EO required the federal government to account for sea level rise and other climate change effects in construction of federally funded projects. In January 2017 President Trump issued Executive Order 13771 and in May 2020, Executive Order 13924, both of which direct federal agencies to reduce or eliminate regulations that may impede development projects. These sweeping executive orders eliminate consideration of sea level rise or other climate change impacts and streamline permitting to speed construction of roads, bridges, and pipelines that require government permits. The EOs also put in place a “one federal decision policy” under which one lead federal agency works with others to complete environmental reviews and other permitting decisions for a given project. All decisions on federal permits will have to be made within 90 days (an unreasonable time frame in which to truly consider the impacts of complex projects, with or without climate change consideration), and agencies will have a two-year goal to process environmental reviews for major projects. The Trump administration additionally proposed a sweeping overhaul of the NEPA that would limit the scope of environmental concerns federal agencies need to take into account when constructing public infrastructure projects.

RESTORATIVE ACTION

The Biden administration can revoke both of these EOs and put in place new EOs to consider sea level rise and climate change in evaluating and permitting infrastructure projects, and reverse the one federal decision policy and truncated time frames for NEPA compliance.

RESPONSIBLE AGENCY

Office of the President

UPDATES

No updates; Executive Orders 13771 &13924

#9: PROPOSED MORE THAN DOUBLING THE TIME ALLOWED TO REMOVE LEAD PIPES FROM COMMUNITY WATER SYSTEMS WITH UNSAFE LEVELS OF LEAD

BACKGROUND

Exposure to lead has a serious impact on people’s mental capacity, especially children, who can suffer lifelong diminished learning capacity through exposure at even low levels. For years, the EPA has known that no level of lead exposure is “safe,” especially for children. As the crisis in Flint, Michigan laid bare, awareness of the issue and the inadequacy of rules surrounding prevention of lead exposure through water delivered to people’s homes grew. Despite national calls to improve those rules, the Trump administration’s EPA proposed regulations extending the timeline for removal of lead water pipes in November of 2019, with anticipated final regulations in the fall of 2020 (RIN:2040-AF15).

RESTORATIVE ACTION

The Biden administration can withdraw the rule if it is not finalized. If it is final the Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

Publication date: 12/19/19; Document type: proposed rule; RIN: 2040-AF15; Document Number: 2019-27282. Most recent update: EPA extended comment period an additional 30 days to 2/12/2020.

Final Rule published 1/15/20.
National Primary Drinking Water Regulations: Lead and Copper Rule Revisions
Publication Date: 01/15/2021
Dates: Effective date: This final rule is effective as of March 16, 2021. For judicial review purposes, this final rule is promulgated as of January 15, 2021.
Effective Date: 03/16/2021
Document Type: Rule
CFR:
40 CFR 141
40 CFR 142
Agency/Docket Numbers:
EPA-HQ-OW-2017-0300
FRL-10019-23-OW
RIN: 2040-AF15
Document Number: 2020-28691
Federal Register :: National Primary Drinking Water Regulations: Lead and Copper Rule Revisions

#10: WITHDREW AND LOOSENED DIRECTIVES AND GUIDANCE TO FEDERAL AGENCIES MEANT TO REDUCE CARBON DIOXIDE AND OTHER GREENHOUSE GAS EMISSIONS BACKGROUND

BACKGROUND

On March 19th, 2015 President Obama issued an EO requiring all federal departments and agencies to reduce greenhouse gas emissions by 40% within ten years. It also directed agencies to use the “social cost of carbon”, which is an estimate of the long-term economic benefits of reducing carbon emissions. The social cost of carbon at the end of the Obama presidency was set at roughly $40 for each ton of carbon dioxide. At that price, the benefits of Obama’s proposals to reduce emissions outweighed the economic costs. The Trump administration ordered a new calculation and ordered agencies to use procedures that devalued carbon. The Trump administration also withdrew NEPA guidance directing federal agencies to include greenhouse gas emissions in environmental reviews.

RESTORATIVE ACTION

The Biden administration can repeal and replace this EO with a new one that restores the responsibility of the federal agencies to consider their contributions to greenhouse emissions and update the analysis for the social cost of carbon.

RESPONSIBLE AGENCY

Council on Environmental Quality

UPDATES

No updates, withdrawn and loosened by EO

#11: OPENED MILLIONS OF ACRES OF PUBLIC LAND FOR OIL AND GAS LEASES ACROSS THE WESTERN US

BACKGROUND

Under the Federal Land Policy and Management Act (FLPMA) and other statutes, the BLM offers lands for oil and gas development through a process of planning and public auction. The agency is required by law to hold quarterly lease sales and parcels are frequently sold for the minimum sufficient bid amount, which is $2 dollars an acre. Once leased, the rights to develop are difficult to rescind. The Trump Administration has been leasing lands at a greatly accelerated rate, often in areas with high recreation and wildlife values, including areas critical to the Greater Sage Grouse.

RESTORATIVE ACTION

The Biden Administration can redesign the BLM’s approach to oil and gas leasing by taking into account climate impacts, the notable oversupply of leased public land, historical understaffing of oil and gas oversight activities, and evolving priorities for tribes and communities around the country. The Biden administration will also have the authority to administratively withdraw an area of public land from leasing for a period of 20 years.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

http://redgreenandblue.org/2020/11/18/climate-vandalism-trumps-plans-430-square-miles-fracking-leases-wyoming-biden-inauguration/. "Trump administration plan (approved) the sale of fracking leases on 275,000 acres of public lands in Wyoming. Fracking those leases would destroy habitat for greater sage-grouse, worsen air quality and cause up to 43 million tons of climate pollution — as much as a coal-fired power plant emits in 11 years...The online auction, which will offer 118,219 of the 275,000 approved acres, is scheduled Dec. 15-17."

"The Bureau of Land Management Wyoming raised about $6.99 million in its Dec. 15-17, 2020, quarterly oil and gas lease sale...The BLM received bids on 181 of the 262 parcels offered, totaling about 165,754 acres."
BLM Wyoming leases 181 oil and gas parcels in December sale, nets nearly $7 million - Wyo4News

#12: STOPPED PAYMENTS TO THE GREEN CLIMATE FUND, THE UNITED NATIONS PROGRAM TO HELP POORER COUNTRIES REDUCE CARBON EMISSIONS

BACKGROUND

The Green Climate Fund is a global platform to respond to climate change by investing in low-emission and climate-resilient development. The Green Climate Fund was established by 194 governments to limit or reduce greenhouse gas emissions in developing countries and to help vulnerable societies adapt to the unavoidable impacts of climate change. The US along with many other nations pledged to provide a total of $100 billion by 2020 to the Fund to assist poorer countries in achieving low carbon economies. In 2014 the Obama administration pledged $3 billion to the fund – the biggest pledge to date. $1 billion has been delivered but President Trump stopped the planned additional contribution of $2 billion.

RESTORATIVE ACTION

The Biden administration can live up to its international commitment to assist other nations fight climate change and send the full pledge amount to the Fund.

RESPONSIBLE AGENCY

State Department

UPDATES

No updates; no further contributions to the Green Climate Fund

#13: ALLOWED LEASES AND PERMITS FOR DRILLING IN THE ARCTIC NATIONAL WILDLIFE REFUGE

BACKGROUND

The 19-million-acre Arctic National Wildlife Refuge was established by Congress in 1960 to protect its fragile ecosystem, abundant wildlife such as caribou and polar bears, and the subsistence of Native Alaskans. It has been legislatively protected from oil and gas exploration for over the last 50 years. The 2017 tax bill passed by the Republican-controlled House and Senate lifted the ban on oil and gas development in portions of the Arctic National Wildlife Refuge. Since then the Trump administration has been aggressively pursuing the leasing of 1.5 million acres of the Refuge for oil and gas development. The BLM has completed an Environmental Impact Statement (EIS) to allow the leasing to proceed, but the agency has not yet identified a date for the lease sale. Meanwhile the BLM is processing an application for seismic testing on the Coastal Plain of the Arctic Refuge that, if approved, could start as soon as January 2021.

RESTORATIVE ACTION

Even if a lease sale is held before the change in administration, formally issuing an oil lease often takes months to complete, which may give the Biden Administration the ability to void the lease sale results. The new administration could also restart the NEPA process, not issue permits for exploration, and seek Congressional action on restoring the protection of the Refuge.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

As of 12/3/20: "The Trump administration is planning to lease land to oil and gas developers at the Arctic National Wildlife Refuge (ANWR) in Alaska before President-elect Joe Biden, who opposes drilling there, takes office in January. The Bureau of Land Management (BLM) said in a statement Thursday that it expects to conduct the sale on Jan. 6 via video. A notice announcing the sale is expected to be published in the Federal Register next week." https://thehill.com/policy/energy-environment/528550-trump-admin-to-sell-oil-leases-at-arctic-wildlife-refuge-before

In good news: in the January 6 lease sale, "Just half of the 22 available tracts of the Arctic National Wildlife Refuge got bids, and big oil companies stayed away."
Sale of Drilling Leases in Arctic Refuge Fails to Yield a Windfall - The New York Times (nytimes.com)

#14: LIFTED A FREEZE ON NEW COAL LEASES ON PUBLIC LANDS

BACKGROUND

In 2016 President Obama directed the Secretary of the Interior, in order to provide a fair return to the taxpayer, to issue a moratorium on new leasing of coal from federal lands to begin the nation’s transition from fossil fuels. This action was reversed in 2017 by Secretary of the Interior Ryan Zinke. In a subsequent court challenge, in April 2019, a judge ruled that the Department of the Interior could not begin selling new leases without completing an environmental review. In February, the agency published an environmental assessment that concluded restarting federal coal leasing would have little environmental impact. That environmental assessment is being challenged in court for its inadequacy.

RESTORATIVE ACTION

The Biden administration can reissue the moratorium on coal leasing, determine next steps on the prior programmatic NEPA review regarding coal, and change the Department of Justice’s position on defending the environmental assessment.

RESPONSIBLE AGENCY

Department of the Interior, Department of Justice

UPDATES

Couldn't find updates on court battle over inadequacy of environmental review

#15: REMOVED OR STRUCK CLIMATE CHANGE AND ASSOCIATED TEXT FROM FEDERAL PLANS, REPORTS, AND WEBSITES

BACKGROUND

The Trump administration has often substituted inaccurate terms such as “resiliency” for “climate change”; systematically altered US Government websites to eliminate mention of climate change (notably by the DOI and EPA); struck “climate change” and associated text from the Federal Emergency Management Agency (FEMA) strategic plan; dropped climate change from list of national security threats; and removed the word “science” from EPA’s Office of Science and Technology mission statement.

RESTORATIVE ACTION

The Biden administration can issue an executive order or multiple agency directives to reinstate climate change in all appropriate federal plans, reports, websites, communications and subsequent plans.

RESPONSIBLE AGENCY

Office of the President

UPDATES

No updates (no climate change language added back to websites)

#16: REDUCED THE SIZE OF TWO NATIONAL MONUMENTS IN UTAH

BACKGROUND

The designation of national monuments is an executive power of the President established under the Antiquities Act of 1906. It has been used by almost all Presidents since Teddy Roosevelt to protect federally owned lands and waters for their unique historic and scientific resources. In 1996, President Clinton established the Grand Staircase Escalante National Monument on 1.8 million acres of BLM lands by proclamation, prompting controversy in the nearby Utah communities. Since then, the monument has become a popular destination benefiting local economies. On December 28, 2016, President Obama established Bears Ears National Monument on 1.3 million acres in Utah managed by the BLM, USFS and NPS. Bears Ears National Monument was designated following extensive public meetings, opportunities for local government input, and meaningful tribal support, as well as some local opposition. On December 4, 2017, President Trump ordered that the Grand Staircase Escalante National Monument be reduced in size by nearly 47% to 1,003,863 acres and Bears Ears National Monument by 85%. Trump’s action represents the largest reduction of public lands protection in US history. Because presidential authority to reduce an established national monument in size presents a novel legal question, the Trump administration is currently defending the unlawful revocation of these two monuments (among others) in federal court.

RESTORATIVE ACTION

The Biden administration can abandon the legal defense of President Trump’s revocation of these national monuments and confirm the long-standing position that the Antiquities Act does not permit successor presidents to dismantle prior presidents’ designations of national monuments. President Biden can restore both of these national monuments by Proclamation. The Biden administration can also legally challenge any mining claims that have been located and rescind any land use authorizations that have been issued within the boundaries of the original monuments.

RESPONSIBLE AGENCY

Office of the President

UPDATES

As of Nov 10, 2020: "U.S. District Judge Tanya Chutkan, based in Washington, D.C., has yet to rule in the consolidated monument lawsuits, where both sides have briefed their arguments." https://www.sltrib.com/news/environment/2020/11/10/with-biden-win-utah/

"With a Biden win, Bears Ears and Grand Staircase monuments may soon be restored"
With a Biden win, Bears Ears and Grand Staircase monuments may soon be restored (sltrib.com)

#17: REVERSED THE POSITION OF THE EPA AND ENTERED INTO A LEGAL SETTLEMENT WITH A CANADIAN CORPORATION SEEKING TO BUILD THE PEBBLE MINE IN ALASKA’S BRISTOL BAY WATERSHED

BACKGROUND

Pebble Mine is a large porphyry copper, gold, and molybdenum mineral deposit in the Bristol Bay region of Southwest Alaska, near Lake Iliamna and Lake Clark. The land is owned by the State of Alaska. The Pebble Mines Corporation holds mineral rights for 186 square miles of the area. In 2015 the EPA released its Proposed Determination limiting mining in the Bristol Bay region due to the irreversible and detrimental impacts it would have on the local salmon ecosystem. In 2019, the Trump administration revoked the Proposed Determination, clearing the way for the firm to apply for federal permits. In July 2020, the ACE declared in a final environmental analysis that the operation of a Pebble Mine “would not be expected to have a measurable effect on fish numbers” in the Bristol Bay watershed. On August 24, 2020, the ACE issued a notice that stated they would be unable to issue a permit for the mine due to “significant degradation of the environment and would likely result in significant adverse effects on the aquatic system or human environment.”

RESTORATIVE ACTION

The Biden administration can initiate new procedures and analysis to block this proposal and any permits from the EPA or the ACE.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

"On November 25th, 2020 the Army Corps of Engineers announced their decision to reject the Clean Water Act permit for the Pebble Mine". https://deneki.com/2020/11/pebble-mine-update-3/

#18: REPLACED THE CLEAN POWER PLAN WITH A NEW VERSION, THE AFFORDABLE CLEAN ENERGY RULE, THAT WOULD LET STATES SET THEIR OWN STANDARDS FOR CARBON EMISSIONS FROM COAL AND GAS-FIRED POWER PLANTS

BACKGROUND

The Clean Power Plan issued by the Obama administration would have set strict federal limits on carbon emissions from coal and gas-fired power plants. The Trump administration’s plan replaces these limits with varying and less stringent emission standards set by the states. Three implementing final rules were published in April of 2019. All three are in litigation.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal one or more of the rules under the Congressional Review Act. The Biden administration could also reverse the position of the Trump administration in litigation.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

"In April 2020, the coalition of attorneys general filed their opening brief in the litigation in the D.C. Circuit. The attorneys general noted that repealing the Clean Power Plan undercuts the Clean Air Act’s objective of reducing pollution and that replacing it with the so-called Affordable Clean Energy rule is unlawful. The coalition highlighted that the ACE rule achieves only trivial emissions reductions, while increasing carbon emissions and other pollutants in more than a dozen states; imposes rigid restrictions on state compliance plans; and exempts existing gas-fired plants from carbon emissions regulation altogether.

In October 2020, the D.C. Circuit heard oral arguments on the challenge brought by the attorneys general against the ACE rule." https://www.law.nyu.edu/centers/state-impact/issues/climate-action/affordable-clean-energy-rule

RULE REVERSED! Jan. 19, 2021: The D.C. Circuit strikes down the ACE rule, remanding it to the agency, saying ““[t]he EPA rewrites rather than reads the plain statutory text.”

#19: SCALED BACK POLLUTION PROTECTIONS FOR CERTAIN TRIBUTARIES AND WETLANDS THAT WERE REGULATED UNDER THE CLEAN WATER ACT

BACKGROUND

The Trump Administration repealed and instructed agencies to revamp a major Obama-era clean water regulation known as the Waters of the United States (WOTUS) Rule, which defined which streams and wetlands are protected by the Clean Water Act. Wetlands serve as the nursery for myriad species of fish, birds and mammals, provide buffers for rising seas, sequester carbon at high levels, and many other benefits. Many areas of the country have lost over 90% of these critical lands to development. The WOTUS rule unambiguously gave the EPA and ACE broad authority to regulate the pollution of wetlands and tributaries that run into the nation’s navigable rivers, and also gave clear guidance to help developers, farmers, and communities predict and plan where and how to safely develop. States, developers, farmers, communities, and residents relied on federal expertise and regulatory determinations to efficiently protect the environment by allowing for appropriate development. The Trump Administration EPA and ACE published a final rule in April 2020 redefining the waters of the US and restricting federal jurisdiction significantly, excluding protections for more than half of wetlands and one-fifth of streams in the United States that had previously been covered under the rule. The new narrow definition would leave many important wetlands and streams vulnerable to pollution from sources including concentrated animal feeding operations, industrial facilities, and urban stormwater. It could constrain pollution prevention efforts by the EPA for rivers, streams, and lakes. It puts an increased burden on states to regulate and protect water systems. ACE would lose authority over significant wetlands, opening them up to development and sacrificing wetlands’ flood control capabilities, climate change sequestration capacity, and other crucially important ecosystem benefits.

RESTORATIVE ACTION

The Biden administration can confer with the Department of Justice on litigation strategy regarding the WOTUS rule and announce in the Federal Register the beginning of a new rule process.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

"On June 22, 2020, the long-awaited Navigable Waters Protection Rule (“Navigable Waters Rule”) officially went into legal effect. The Navigable Waters Rule has prompted the filing of multiple lawsuits from states, environmental groups, and agriculture groups. Although no court has issued an opinion on the rule’s legality, one court has already issued an order order preventing the Navigable Waters Rule from having legal effect in the court’s jurisdiction, while another court has specifically declined to issue such an order." Order granted preliminary injunction in Colorado v. U.S. Envt’l Prot. Agency. Order denied preliminary injunction in State of California v. Wheeler. https://nationalaglawcenter.org/wotus-update-injunction-issued-as-lawsuits-progress/

"OMAHA (DTN) -- The future remains in flux for the Trump administration's Navigable Waters Protection Rule (NWPR), as court cases continue to play out and the potential for yet again more changes to the Clean Water Act remains in play for the next administration. Legal battles continue in several courts, where states and environmental groups have challenged the new rule."
Navigable Waters Protection Rule Continues to Face Legal Hurdles (dtnpf.com)

#20: REVISED LAND MANAGEMENT PLANS AND DEVELOPED LAND USE PLANS TO ALLOW INCREASED DEVELOPMENT, PIPELINES, DRILLING, MINING, LOGGING, AND GRAZING ON FEDERAL LANDS

BACKGROUND

The BLM is responsible for 247 million acres or 1/8 of the landmass of the United States. The agency manages wilderness, outdoor recreation, cultural sites, as well as resource development such as oil, gas, coal, timber, and gravel. The agency’s challenge is to meet all these objectives with stewardship ethos and good public planning. The Trump administration has proposed BLM land management plans for significant resource development with far less land protected and to no longer require NEPA compliance for land management plans. The new guidance abandons master leasing planning and returns to the inadequate practice of site specific analysis with regard to impacts from energy development on public lands.

RESTORATIVE ACTION

The Biden administration can withdraw this policy direction and set new and balanced priorities for the BLM. BLM could seek permission from Congress to restore the Planning 2.0 rule that was blocked under the Congressional Review Act at the beginning of the Trump administration.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

No updates, policy direction of BLM

#21: OVERTURNED GUIDANCE THAT ENDED US GOVERNMENT FINANCING FOR NEW OVERSEAS COAL PLANTS EXCEPT IN RARE CIRCUMSTANCES

BACKGROUND

The Trump administration published new Department of the Treasury “Guidance for U.S. Positions on Multilateral Development Banks (MDB) Engaging on Energy Projects and Policies” which instructs U.S. representatives on the executive boards of MDBs to vote to “help countries access and use fossil fuels more cleanly and efficiently.” Experts say that this means voting “yes” to most future coal projects that come up for approval. These would previously have been turned down under guidance provided by President Obama in 2013, which made it difficult to use public resources to support coal projects except in rare circumstances. This is a policy document issued by the State Department.

RESTORATIVE ACTION

The Biden administration can issue a new policy that encourages use of renewable energy rather than coal.

RESPONSIBLE AGENCY

Department of the Treasury and State Department

UPDATES

No updates, policy guidance

#22: WITHDREW A NUMBER OF DEPARTMENT OF THE INTERIOR SCIENCE, CLIMATE CHANGE AND CONSERVATION POLICIES

BACKGROUND

The Trump administration DOI rescinded an array of policies designed to elevate climate change and conservation in decisions on managing public lands, waters and wildlife. Secretarial Order 3360, signed by then-Deputy Secretary David Bernhardt, rescinded four separate directives and policy manuals aimed at guiding DOI employees on how to minimize the environmental impact of activities on federal land and in federal waters. The SO also calls for the review of a fifth Obama administration SO which applies to the National Petroleum Reserve-Alaska. The Trump administration SO directs officials to reinstate and update guidance issued during the final year of George W. Bush’s second term. The SO explains that the policies were rescinded because they were “potential burdens” to domestic energy resource development and utilization.

RESTORATIVE ACTION

The Biden administration can withdraw this SO.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

No updates, DOI SO

#23: WEAKENED THE STANDARDS FOR CARBON DIOXIDE EMISSIONS FROM NEW, MODIFIED, AND RECONSTRUCTED POWER PLANTS

BACKGROUND

In 2015, the EPA published a final rule, “GHG New Source Performance Standards for Power Plants”, also known as “Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Power Plants.” The rule regulates carbon pollution from new or refurbished power plants. In addition, this rule triggers the EPA obligation to regulate carbon pollution from existing power plants. In December 2018 the Trump administration’s EPA issued a Federal Register Notice of a new rule for the Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Power Plants that removed partial carbon capture and storage as a best practice. This rule has not been finalized and is in litigation (North Dakota v. EPA, No. 15-1381).

RESTORATIVE ACTION

If the rule is finalized by the end of the Trump administration, then the Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act. If it is not finalized, it can be withdrawn by the Biden administration.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

"In an Oct. 21, 2020 status report filed with the D.C. Circuit EPA states it intends to issue a final rule in the winter of 2020-21." https://eelp.law.harvard.edu/2017/09/ghg-new-source-performance-standards-for-power-plants/

"Jan. 13, 2021 EPA issues a final rule that makes a pollutant-specific significant contribution finding for newly constructed coal-fired units but does not finalize its Dec. 20, 2018 proposal to change the best system of emission reduction (BSER). EPA had questioned whether it needed to make such a finding in a footnote of the 2018 proposal. EPA has not previously considered pollutant-specific significant contribution findings necessary because the agency makes a finding of significant contribution for the source category when it lists it.

In this rule, EPA establishes a new threshold of 3% of total US GHG emissions for finding sources contribute significantly to dangerous air pollution due to their GHG emissions. Applying this threshold, the agency finds the units’ GHG emissions contribute significantly. The agency introduced the requirement of a pollutant-specific significant contribution finding in its oil and gas GHG standards rule as well (see more about that here)."
GHG New Source Performance Standards for Power Plants - Environmental & Energy Law Program - Harvard Law School

#24: ALLOWED LEASING FOR DRILLING AND RESOURCE EXTRACTION ADJACENT TO CHACO CULTURE NATIONAL HISTORICAL PARK

BACKGROUND

The Chaco Culture National Historical Park is the historic site of a major cultural center for ancestral Puebloans and holds significance for many neighboring tribes and pueblos. The park and surrounding landscape was designated under UNESCO as a World Heritage Site in 1987. This is the largest collection of ancient ruins north of Mexico and highly vulnerable to damage from the vibrations of oil and gas extraction on nearby public lands. In 2016, the Department of the Interior began a land management planning effort that was considering a buffer around specific sacred areas and was paused to allow for tribal consultation, but in the spring of 2020, despite the covid-19 pandemic, Secretary Bernhardt resumed the planning process to consider potential drilling in the region over the objections of local tribes and pueblos that they were unable to participate in the planning process due to the pandemic.

RESTORATIVE ACTION

The Biden administration can cancel plans for any new leases and implement a Secretarial mineral withdrawal for 20 years. The Biden administration can seek legislative action to create a buffer zone around the park to protect sacred areas and to respect Native American cultural values associated with the area. The Biden administration should also consider the interests of Navajo allottees’ in developing any solution moving forward.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

Farmington Mancos-Gallup RMP Amendment:
NEPA Number: DOI-BLM-NM-F010-2017-0128-RMP-EIS
Project Name: Farmington Mancos-Gallup RMP Amendment
Project Type: RMP Amendment - Environmental Impact Statement
Project Status: In Progress - Analysis & Document Preparation

The 90-day public comment period on the Draft Farmington Mancos Gallup RMPA/EIS began on February 28, 2020. Largely due to concern over having a meaningful engagement period during the pandemic (especially due to lack of broadband access in the areas most affected), a broad coalition of tribal leaders, environmental groups, conservationists, and politicians — including U.S. Senator Tom Udall and the entire New Mexico congressional delegation — urged the BLM and BIA to postpone the public comment period, the public comment period for the Farmington-Mancos RMPA was extended 120-days. The public comment period closed on September 25, 2020. Page was last updated October 2, 2020. https://eplanning.blm.gov/eplanning-ui/project/68107/510

Relatedly, several environmental groups are suing the BLM over 2018 lease sale in Sandoval County near Chaco Canyon - 30 parcels in the Rio Puerco Field Office. https://www.msn.com/en-us/money/news/environmental-coalition-sues-blm-over-2018-lease-sale-in-sandoval-county-near-chaco-canyon/ar-BB16FVAI

Also relatedly, "SANTA FE — Legislation introduced by U.S. Senate Republicans to fund the United States Department of the Interior for fiscal year 2021 has excluded language intended to protect the Greater Chaco region from increased oil and gas drilling. In 2019, New Mexico Senators Tom Udall and Martin Heinrich included a rider to the fiscal year 2020 Interior appropriations bill directing the Bureau of Land Management to refrain from approving new oil and gas lease sales within 10 miles of Chaco Culture National Historical Park." https://ladailypost.com/department-issues-statement-on-removal-of-chaco-protection-language-in-senate-appropriations-bill/

Page last updated on 01/14/2021, 08:44:10 MDT; still in progress.

#25: APPROVED THE KEYSTONE XL PIPELINE RIGHT OF WAY PERMIT

BACKGROUND

The Keystone Pipeline System is a transboundary pipeline that traverses lands in both Canada and the United States, commissioned in 2010 and owned by TC Energy Corporation and the Government of Alberta. It runs from Alberta, Canada to refineries in Illinois and Texas and to oil tank farms and an oil pipeline distribution center in Oklahoma. On November 3, 2015 Secretary of State John Kerry issued a determination that the project was not in the public interest and the Keystone XL Pipeline was rejected by President Obama’s administration. On January 24, 2017 President Trump signed a Presidential Memorandum to permit the Keystone pipeline. Since then, a federal judge blocked the project from going forward without an adequate environmental review process. President Trump later attempted to sidestep the ruling by issuing a presidential permit. Initial construction has started, but the project remains in litigation. A portion of the pipeline is proposed to cross federal land under the authority of the BLM. In order to construct the pipeline across BLM lands, the developer must have a “Right of Way” permit. The Obama administration denied the permit, based on the recommendations from the DOI and the EPA. The Trump administration issued the Right of Way permit in January of 2020.

RESTORATIVE ACTION

The Biden administration could rescind the Right of Way permit if construction has not begun and make a determination the project is not in the public interest. The Biden Administration can also reconsider the role of the State Department in determinations of transboundary pipelines.

RESPONSIBLE AGENCY

State Department

UPDATES

In May 2020, a federal judge sided with environmental groups to require that new oil and gas pipelines must undergo a lengthy permitting and regulation process in order to traverse bodies of water -- cancelling the so-called "Nationwide Permit 12" for several new pipelines which authorized and fast-tracked work on pipelines that run across water bodies. The ruling stated that the Army Corps of Engineers did not adequately consider the projects' environmental impact on endangered species. The ruling required the projects that received such a permit to stop construction while the environmental impact study was completed. The Supreme Court as of July 6, 2020 invalidated that lower court ruling in part, allowing many projects to go ahead while the environmental reviews are done, but excluded the Keystone XL. The Keystone XL pipeline must still abide by the arduous environmental review process, and is on hold until an EIS is completed. https://www.cnn.com/2020/07/06/politics/keystone-xl-supreme-court-pipeline/index.html

January 18,2021: "The Keystone oil pipeline is set to announce a number of environmentally-friendly changes to the project in hopes of winning President-elect Joe Biden’s endorsement as he looks to issue an executive order canceling the project as early as this week, according to new reports.

Biden’s aides have previously said he plans on rescinding the project’s permit and a CBC News report on Sunday said the Democrat will revoke the permit in one of his first actions after taking office this week."
Keystone XL Pipeline Vows to Use Only Renewable Energy as Biden Eyes Revoking Permit | National Review

Also: January 7, 2021:
Conservation groups challenge DEQ approval of Keystone XL construction
Environmental analysis was inadequate, and public participation was compromised in ‘rushed’ approval process, the groups claim:
Conservation groups challenge DEQ approval of Keystone XL construction | Montana Free Press

"The Northern Plains Resource Council and Sierra Club have appealed a decision by the state of Montana that’s required in order for Keystone XL construction to move forward on its 295-mile route through eastern Montana.

The decision they’re challenging is part of a regulatory measure requiring state approval of projects — like pipeline construction — that fall under the Clean Water Act’s jurisdiction. South Dakota and Nebraska have already granted Water Quality Certificates for Keystone XL, a massive pipeline that would move 800,000 barrels of oil a day from the Alberta tar sands to the Gulf Coast. Montana joined them on Dec. 31, but that decision has been challenged in the appeal filed by the conservation groups on Jan. 4."

Current status from Harvard EELP:
Nov. 4, 2020 The D.C. Circuit hears oral arguments in the appeal by the Army Corps and Dakota Access of the District Court’s July 6 ruling. Standing Rock Sioux Tribe v. Army Corps, No. 20-5197 (D.C. Cir.).

#26: ELIMINATED THE “NET CONSERVATION GAIN” GOAL FOR PROJECTS THAT IMPACT FEDERAL LANDS

BACKGROUND

In the past decade, federal land managers have focused their efforts on off-site “compensatory mitigation,” a policy embraced by the Obama administration. It requires project proponents to offset their impact on public land by paying into a program to restore similar habitat off-site. The goal of this program was to have “net conservation” from public land development. This program was halted by an August 2018 Policy Memorandum from the Acting Director of the BLM, eliminating the requirement of compensatory mitigation. Developers who use public lands are now no longer required to provide off-site mitigation for their impacts.

RESTORATIVE ACTION

The Biden administration can withdraw the Policy Memorandum and issue new net conservation goals and compensatory mitigation requirements.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

No updates, policy memorandum

#27: WEAKENED THE WAY THE ENDANGERED SPECIES ACT IS APPLIED, MAKING IT MORE DIFFICULT TO PROTECT WILDLIFE FROM LONG-TERM THREATS POSED BY CLIMATE CHANGE

BACKGROUND

Since passage of the Endangered Species Act in 1973, the economic impacts of saving an endangered species have not been placed as a priority over the science, population, or habitat in decision making. The Trump administration’s USFWS and NOAA issued new regulations in August 2019 that allowed reference to economic considerations when designating an endangered animal’s habitat by eliminating an express regulatory provision that prohibited referring to the economic impacts of listing an endangered or threatened species. In addition, it changed how the risks facing threatened species are weighed by including the definition of “foreseeable future” to “only so far into the future as the Services can reasonably determine that the conditions potentially posing a danger of extinction in the foreseeable future are probable”. This change in effect eliminates any consideration of climate change as a factor in listing a species. The DOI completed the final rule change in August 2019. The new regulation is the subject of litigation.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

5/18/2020: Motion to dismiss granted with leave to file amended complaint within 21 days -- The court found that the organizational plaintiffs had not demonstrated injury-in-fact to their members or that they suffered direct injury; also 5/18/2020: Motion for leave to participate as amicus curiae denied without prejudice.

Latest update: 6/4/2020: Second amended complaint filed. Center for Biological Diversity v. Bernhardt - Climate Change Litigation (climatecasechart.com).

Additionally, JULY 31, 2020: "The Trump administration has proposed another blow to imperiled species by issuing a new definition of “critical habitat” under the Endangered Species Act. Earthjustice will continue to defend the Act in court". The Endangered Species Act Is Under Attack | Earthjustice

#28: WEAKENED EPA GUIDANCE DESIGNED TO LIMIT TOXIC EMISSIONS FROM MAJOR INDUSTRIAL POLLUTERS

BACKGROUND

Since 1995 the EPA has classified sources of hazardous air pollutants as “major sources” or “area sources” and they are regulated differently. EPA guidance directed pollution sources that are regulated under the “major source” standard to deploy the “maximum achievable control technology” (MACT) indefinitely, an interpretation that “once in, always in” based on a “plain language reading” of the Clean Air Act. The Trump administration’s EPA issued guidance to states that once a pollution source brought its air emissions below the threshold for a major source, it can be reclassified as an area source, which is the weaker standard. The policy is a revision to long-standing interpretation of the Clean Air Act.

RESTORATIVE ACTION

This was not regulatory and can be revised with a new policy interpretation and guidance from the Biden administration.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

No updates; policy interpretation and guidance

#29: REJECTED A PROPOSED BAN ON SEVERAL POTENTIALLY DANGEROUS CHEMICALS BACKGROUND

BACKGROUND

Chlorpyrifos is a pesticide linked to developmental disabilities in children. After scientific studies determined its toxicity, the Obama administration’s EPA banned its use in 2015. Several states have banned its use and the main manufacturer of the pesticide in 2020 stopped producing the product because of shrinking demand. In March 2017 the Trump administration EPA Administrator issued an order rejecting the ban on chlorpyrifos.

RESTORATIVE ACTION

The Biden administration can reinstate the ban with an EPA order.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

No updates; 2015 EPA ban rejected

#30: WEAKENED THE PROTECTION OF BIRDS UNDER THE MIGRATORY BIRD TREATY ACT SO THAT INCIDENTAL TAKES ARE NOT A VIOLATION

BACKGROUND

The Trump administration DOI Solicitor issued an “M” opinion in December 2017 that reversed a former Solicitor’s M opinion under the Obama administration, changing a 40year old interpretation of the Migratory Bird Treaty Act (MBTA). This was followed by an instructional memorandum to the USFWS in April 2018 directing the agency to not prosecute violations unless the killing of a migratory bird was intentional. In May 2020, the USFWS released an EIS that addressed the specific changes to the rules governing the take (killing) of migratory birds. This is a significant rollback of policy aimed at protecting migratory birds. The Trump administration decreed it will no longer consider the accidental killing of birds - from eagles colliding with wind turbines to ducks killed on power lines - a violation of the MBTA. The MTBA had previously been interpreted as forbidding “incidental takes” which are the accidental yet foreseeable deaths of birds from industrial activity. The DOI stated in a Solicitor’s opinion that it will no longer prosecute oil and gas, wind, and solar operators that accidentally kill birds. The rollback potentially runs afoul of treaties with Canada and Mexico. A federal court has struck down the Solicitor Opinion’s reversal of the long-standing interpretation of the Department. In light of this ruling, a new regulation supporting the new Solicitor’s opinion is not likely in the near term.

RESTORATIVE ACTION

The Biden administration can review its options in light of the adverse federal court ruling against the Trump administration’s interpretation that the MBTA does not prohibit incidental take.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

11/27/2020: "A rule change easing companies’ liability for killing birds would not cause unacceptable environmental harm, the Trump administration said in an analysis published Friday, clearing the way for it to finalize a major rollback before the president’s term ends on Jan. 20...The new analysis looked at three alternatives for interpreting the act: continuing to tacitly permit incidental take; codifying the interpretation that incidental takes are allowed; or strengthening the law to return to the historical understanding that companies are accountable for accidental killings. It suggested that all three options would “have incremental effects on current environmental conditions” but identified scaling back the rule as its “preferred alternative.”

The rule change is now open for a 30-day review period, which ends Dec. 28. If finalized, it would set in stone the Interior’s Department’s current, narrow view of the law — making the policy easier for companies to understand but also making it more difficult for future administrations to reverse." Interior finalized a key step in its effort to weaken limits on killing birds under the Migratory Bird Treaty Act - The Washington Post

Rule final. Current status from Harvard EELP Regulatory Rollback Tracker:

"The Trump administration, in Department of the Interior’s Solicitor’s Opinion M- 37050, re-interpreted the MBTA to prohibit prosecution for incidental takes of migratory birds, permanently withdrawing the Obama administration’s Solicitor’s Opinion M-37041 affirming long-standing agency interpretation to the contrary. The US FWS issued guidance implementing the new Solicitor’s Opinion and proposed new regulations based on the revised interpretation. An August 2020 federal district court decision vacated Opinion M-37050, reinstating the prior state of the law that allowed for enforcement of incidental takes under the MBTA. Interior appealed that decision on Oct. 9, 2020.

Despite the federal court decision vacating the Solicitor’s Opinion, the Fish and Wildlife service has moved forward with finalizing new regulations narrowing the scope of its regulations regarding the killing or injuring of birds to only intentional acts. Interior published its final rule on Jan. 7, 2021, determining that the MBTA’s prohibitions on pursuing, hunting, taking, capturing, killing migratory birds or attempting to do so do not apply to indirect actions."
Migratory Bird Treaty Act - Environmental & Energy Law Program - Harvard Law School

#31: REVISED THE NEW SOURCE REVIEW PROGRAM TO REDUCE THE EPA’S OVERSIGHT OF INDUSTRY ACTIONS AND PROTECTIONS FOR COMMUNITIES FROM POLLUTION

BACKGROUND

The New Source Review rules under the Clean Air Act were designed to safeguard communities from increases in pollution through a pre-construction permitting regime that requires facilities to install pollution control technology in certain instances that are tailored to the specific circumstances of a given area. The revisions by the Trump administration creates a more lenient New Source Review regime including policy guidance and regulations that combine to allow for much more harmful effects upon communities located near such facilities. Only a few of the rules are final and many are still in process.

RESTORATIVE ACTION

The Biden administration via the EPA Administrator could repeal and replace the policy guidance on how the New Source Review program is implemented.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

Current status from Harvard's EELP: "Since December 2017, EPA has implemented significant changes to the agency’s administration of major NSR permits. These changes reduce EPA’s oversight of industry actions and create a more lenient NSR regime, which could result in increased emissions of harmful pollutants from industrial facilities across the United States. EPA’s actions are listed below." (There are several rules with specific information on this page.Here included are those rules that recently became, or are not yet final):

Consideration of Emissions Decreases at Step 1 (March 2018): EPA releases a memo stating that, when determining at Step 1 whether NSR will apply to modifications, plant operators should consider emissions decreases that will occur rather than just emissions increases. Including decreases in this calculation, which previously were not considered until Step 2, could reduce the number of modifications that are subject to NSR. In August 2019, EPA formalizes the interpretation in this memorandum by issuing a proposed rule. EPA publishes the final rule on Nov. 24, 2020.

Plantwide Applicability Limitation (Feb. 2020): EPA releases draft guidance regarding plantwide applicability limitation (PAL) provisions. PAL permits offer flexibility to plants by establishing plantwide emissions limits, rather than limits for individual sources within the plant. EPA’s guidance memo addresses multiple aspects of PAL permitting, including renewal, termination, and monitoring requirements.

Definition of ‘Begin Actual Construction’ (Mar. 2020): EPA releases draft guidance narrowing the definition of “begin actual construction” in the NSR regulations. Under EPA’s new proposal, businesses could begin construction activities without first obtaining an NSR permit, so long as the construction does not modify or build a new emissions unit.

(the other rules listed became final before 2020). New Source Review - Environmental & Energy Law Program - Harvard Law School

Updates from Harvard EELP Regulatory Rollback Tracker: Oct. 22, 2020 EPA issues a final rule allowing companies to consider both decreases and increases in emissions at Step 1, i.e. when assessing whether a proposed project will result in a “significant emissions increase” of a regulated NSR pollutant. Previously, decreases were only considered at Step 2. EPA publishes the rule in the Federal Register on Nov. 24, 2020.

Nov. 2, 2020 The D.C. Circuit hears oral arguments in a suit brought by the New Jersey Attorney General challenging the NSR record-keeping rule. Judge Walker, a recent Trump appointee to the court, questions whether New Jersey has shown the requisite harm to have standing to bring the suit. New Jersey v. EPA, No. 08-01065 (D.C. Cir.).
New Source Review - Environmental & Energy Law Program - Harvard Law School

#32: PROPOSED AUTHORIZING THE INCIDENTAL HARMING OR KILLING OF POLAR BEARS IN THE ARCTIC NATIONAL WILDLIFE REFUGE DURING OIL AND GAS EXPLORATION

BACKGROUND

The DOI has the authority to allow the killing of polar bears during oil and gas exploration of the Arctic National Wildlife Refuge (ANWR) but has not done so yet. It has proposed authorizing the incidental take of polar bears on the coastal plain of the ANWR during oil and gas exploration, seismic surveys, and associated activities.

RESTORATIVE ACTION

The Biden administration can issue policy guidance that incidental take of polar bears will not be authorized.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

30 day comment period open ("Comments on this proposed Incidental Harassment Authorization and the accompanying draft environmental assessment must be received by January 7, 2021")
Federal Register :: Marine Mammals; Incidental Take During Specified Activities; Proposed Incidental Harassment Authorization for Polar Bears in the Arctic National Wildlife Refuge, Alaska
Publication Date: 12/08/2020
Document Type: Notice
Document Citation: 85 FR 79082
Agency/Docket Numbers:
Docket No. FWS-R7-ES-2020-0129
FXES111607MRG01-212-FF07CAMM00
Document Number: 2020-26747

#33: ELIMINATED THE ENVIRONMENTAL COMPLIANCE AND PERMITTING PROCESS FOR CERTAIN PROJECTS THAT CROSS INTERNATIONAL BORDERS SUCH AS OIL PIPELINES

BACKGROUND

Oil pipelines and other similar projects that cross international borders with the US are subject to compliance with the National Environmental Policy Act (NEPA) and the regulations of the relevant federal agency such as the NPS or BLM. In April 2019, President Trump issued Executive Order 13867 “Issuance of Permits With Respect to Facilities and Land Transportation Crossings at the International Boundaries of the United States”. This EO moved the permitting process to the Office of the President which exempts the projects from NEPA compliance, public comment, and any environmental review.

RESTORATIVE ACTION

The Biden administration can repeal this EO and allow such proposals to be handled by the appropriate federal agency and be subject to NEPA compliance and public input.

RESPONSIBLE AGENCY

Office of the President

UPDATES

No updates; EO

#34: PROPOSED OPENING MORE LAND IN THE ALASKA NATIONAL PETROLEUM RESERVE FOR OIL DRILLING

BACKGROUND

The National Petroleum Reserve in Alaska (NPR-A), is a 23 million acre unit of federal land on the western side of Alaska’s North Slope. Ecologically it is globally significant as it provides breeding grounds for birds from every continent in addition to being home to the United States’ largest caribou herd. The Obama administration’s Department of the Interior developed a management plan in 2013 designating about half the reserve open to oil development and half protected for its wildlife and cultural values. In June 2020, the Trump administration’s BLM issued a final EIS that would make 82% of the NPR-A available for oil drilling. The new plan will likely be finalized before the end of 2020. A lease sale could follow in early 2021. Even before the new management plan is issued, environmental advocates have challenged the adequacy of the EIS in federal court in Alaska.

RESTORATIVE ACTION

The Biden administration can restart the EIS process, but may also have the ability to rescind the new plan and reject any leases that are purchased at auction, if one is held in the waning days of the Trump administration.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

As of 1/4/21, "Interior finalizes plan to open 80 percent of Alaska petroleum reserve to drilling"
Interior finalizes plan to open 80 percent of Alaska petroleum reserve to drilling | TheHill

#35: WITHDREW A POLICY OF CLIMATE ADAPTATION FOR THE NATIONAL PARK SERVICE UNDER DIRECTOR’S ORDER 100

BACKGROUND

In response to the recommendations of the National Park System Advisory Board’s 2012 report Revisiting Leopold, the NPS developed a new policy document, Director’s Order 100 that gave guidance to the NPS for addressing climate change, incorporating traditional ecological knowledge, and redefining resource management goals. The Director’s Order was developed over a period of years with internal and public input. Secretary of the Interior Zinke directed the acting Director of the National Park Service to rescind the Director’s Order 100 in August of 2017.

RESTORATIVE ACTION

RESPONSIBLE AGENCY

UPDATES

No updates; Director's Order

#36: RESTRICTED MOST ENVIRONMENTAL IMPACT STATEMENTS TO A MAXIMUM OF 150 PAGES AND MUST BE COMPLETED IN 12 MONTHS

BACKGROUND

The National Environmental Policy Act (NEPA) of 1970 promotes the protection of the environment and requires an analysis of and public input for any federal decision or undertaking that may significantly affect the environment. The product of NEPA for public input is the Environmental Impact Statement (EIS) and has been the bedrock of federal decision making for highways, airports, railroads, seaports, and other projects for 50 years. The Trump administration’s Council on Environmental Quality (CEQ) in January of 2020 issued a proposed rulemaking affecting all NEPA compliance. The proposed rule significantly reduces public involvement, and narrows the scope of alternatives and impact review as well as limits the time for completion of EISs to 12 months, even for major projects. In practice these rules would produce documents inadequate to the thoughtful decision-making they are designed to facilitate in addition to limiting the public engagement that makes for better and better supported projects. The final rule was published in the Federal Register on July 15, 2020 and became effective on September 4, 2020.

RESTORATIVE ACTION

The Biden Administration can announce in the Federal Register a new rulemaking.

RESPONSIBLE AGENCY

Council on Environmental Quality

UPDATES

No updates (already in text of harm: The final rule was published in the Federal Register on July 15, 2020 and became effective on September 4, 2020.)

#37: REORGANIZED THE DEPARTMENT OF INTERIOR INTO “SUPER-REGIONS”, REMOVING CAREER LEADERSHIP AND REPLACING THEM WITH POLITICAL LEADERSHIP BACKGROUND

BACKGROUND

Each of the bureaus of the DOI have specific environmental responsibilities. The USFWS protects wildlife refuges and enforces the Endangered Species Act. The NPS manages and protects national parks and historic sites across the country. The BLM manages lands for a variety of purposes ranging from wilderness areas and national monuments to grazing and energy development. The Bureau of Indian Affairs (BIA) implements vital programs and serves federally recognized Indian tribes as part of US trust responsibility. These fundamental roles do not change with each elected administration, though priorities may shift. The Trump administration worked to undermine the effectiveness of the career employees in each of these essential agencies. The Secretary of Interior issued a Memorandum in July 2019 that reorganized the department into new regional boundaries, created new political leadership positions, and forced career employees to move to new geographic locations. This effort essentially removes career public servants from direct contact with their elected leadership, including Congress.

RESTORATIVE ACTION

The Biden administration can rescind this Department of the Interior reorganization.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

No updates; reorganization by SOI memorandum

#38: WEAKENED HABITAT PROTECTIONS FOR SAGE GROUSE AND OPENED NINE MILLION ACRES OF WESTERN LAND TO OIL AND GAS DRILLING

BACKGROUND

The sage grouse is a threatened but not yet technically endangered species that is an indicator of ecosystem health across the interior west. The 2015 Greater Sage-Grouse Resource Management Plan was developed by the Obama administration as a series of state-level plans to protect and manage tens of millions of acres of sage grouse habitat. Effective implementation of the plan would prevent the listing of the sage grouse as an endangered species, which could have a dramatic impact on critical activities in these regions including cattle grazing and fire management. In June 2017 Secretary of Interior Zinke issued Secretarial Order 3353, placing a greater emphasis on energy development in sage grouse habitat. In March 2019, the BLM finalized amendments to the Greater SageGrouse Resource Management Plan reducing protection of sage grouse habitat in the West. The recent actions are in litigation.

RESTORATIVE ACTION

The Biden administration can change the position of the government in the litigation and begin the process to restore the original intent of the plan.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

Most recent litigation action found from June 12, 2020 for case No. 19-36065; D.C. No. 1:16-cv-00083-BLW; District of Idaho, Boise.
Bernhardt/DOI and co (intervenor-defendants) file memorandum in support of defendants' cross-motion for partial summary judgement in opposition to plaintiff's (Western Watersheds Project) motion for partial summary judgement.
Blank Portrait (US) (mslegal.org)

#39: APPROVED CONSTRUCTION OF THE DAKOTA ACCESS PIPELINE LESS THAN A MILE FROM THE STANDING ROCK SIOUX RESERVATION

BACKGROUND

The Dakota Access Pipeline (DAPL) or Bakken pipeline is a 1,172-mile-long underground oil pipeline that runs from northwest North Dakota and continues through South Dakota and Iowa to an oil terminal near Patoka, Illinois. The Army Corps of Engineers (ACE) is responsible for evaluating and issuing permits for all water crossings under Section 404 of the Clean Water Act, and Sections 10 and 14 of the Rivers and Harbors Act of 1899. ACE permits are required for 202 crossings of the pipeline of jurisdictional waters. One such crossing was located at the Missouri River a half mile north of the Standing Rock Sioux reservation on aboriginal land of the Sioux Nation. Historic levels of protests against the Dakota Access Pipeline occurred on the project site north of the reservation because of concerns about the pipeline’s impact on the environment, including harm to downstream tribal water rights and treaty rights, and to sites sacred to Native Americans. Based on the concerns raised by affected tribes, the Obama administration in the fall of 2016 paused the project calling for more in-depth environmental review. In Feb. 2017 the Trump administration announced it had adequate information to issue the permit. This past year, a federal judge ruled that the DAPL must be emptied while the ACE produces a more comprehensive environmental review through issuance of an EIS under NEPA instead of an environmental assessment. The issue remains in litigation and currently the pipeline can operate but the permit to expand is being challenged on appeal (United States District Court for the District of Columbia, Case No. 1-16-cv-01534-JEB).

RESTORATIVE ACTION

The Biden administration can comply with the district court’s order and seek to abandon the appeal and conduct an Environmental Impact Statement (EIS) under NEPA as ordered by the court. The administration can also explore other avenues for resolving this significant, environmental justice case regarding indigenous rights and climate change.

RESPONSIBLE AGENCY

Army Corps of Engineers

UPDATES

Most recent update found: "Oct 2020: Native American tribes opposed to the Dakota Access Pipeline once again have asked a federal judge to stop the flow of oil while the legal battle over the line’s future plays out. The Corps and Energy Transfer had until Nov. 20 to file a formal response."
Tribes Make New Move to Shut Down Dakota Access Pipeline | North Dakota News | US News

Still in litigation. Last update appears to be on 1/8/21: a reply to opposition to motion
STANDING ROCK SIOUX TRIBE v. UNITED STATES ARMY CORPS OF ENGINEERS :: District Of Columbia District Court :: Federal Civil Lawsuit No. 1:16-cv-01534-JEB, Judge James E. Boasberg presiding (plainsite.org)

#40: REVOKED AN EXECUTIVE ORDER DESIGNED TO PRESERVE OCEAN, COASTAL, AND GREAT LAKES WATERS IN FAVOR OF A POLICY FOCUSED ON EMPHASIZING USING THE WATERS TO PROMOTE ENERGY PRODUCTION AND ECONOMIC GROWTH

BACKGROUND

In July of 2010, President Obama issued EO 13547 “Stewardship of the Ocean, Our Coasts, and the Great Lakes”, establishing a council to promote conservation and sustainable use of US waters. The EO put a priority on conservation. In June of 2018, President Trump issued Executive Order 13840 “Executive Order Regarding the Ocean Policy to Advance the Economic, Security, and Environmental Interests of the United States”. It rescinded the EO issued by President Obama and emphasized energy development along the coasts.

RESTORATIVE ACTION

The Biden administration can revoke the Trump EO and issue a new EO on protection of the oceans, coasts, and the Great Lakes.

RESPONSIBLE AGENCY

Office of the President

UPDATES

No updates; EO

#41: REVOKED AN EXECUTIVE ORDER PROMOTING CLIMATE RESILIENCE IN THE NORTHERN BERING SEA REGION OF ALASKA

BACKGROUND

The Northern Bering Sea Climate Change Resilience strategy was put into place through Executive Order 13754 by President Obama. It promoted climate resilience and restrictions on development of the Arctic ocean, withdrew local waters from oil and gas leasing, and established a tribal advisory council to consult on local environmental issues. President Trump signed Executive Order 13795 in May of 2017 that rolled back not only outer continental shelf oil and gas development restrictions in the Arctic, Chukchi and Beaufort Seas, but also revoked President Obama’s EO.

RESTORATIVE ACTION

The Biden administration can revoke the Trump EO and issue a new one protecting the Arctic Oceans from development.

RESPONSIBLE AGENCY

Office of the President

UPDATES

No updates; rolled back by EO

#42: EXEMPTING CERTAIN TYPES OF POWER PLANTS FROM LIMITING TOXIC DISCHARGE INTO PUBLIC WATERWAYS

BACKGROUND

On September 30, 2015, the Obama administration’s EPA finalized a rule revising the regulations for the Steam Electric Power Generating category (40 CFR Part 423). The rule sets the first federal limits on the levels of toxic metals in wastewater that can be discharged from power plants, based on technology improvements in the steam electric power industry over the last three decades. These metals can have a profound negative effect upon freshwater and marine life. Beginning in 2018, power plants would have had to show they were using the most up-to-date technology to remove heavy metals including lead, arsenic, mercury, and other pollutants from their wastewater. In 2019, the EPA proposed amending the regulation to provide exemptions for power plants dumping toxic metals such as arsenic and mercury into waterways. The EPA issued a Federal Register Notice in November 2019. No final rule date is proposed.

RESTORATIVE ACTION

If there is a final rule in 2020, the Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

EPA, on August 31, 2020, finalized a rule revising the regulations for the Steam Electric Power Generating category (40 CFR Part 423). The rule revises requirements for two specific waste streams produced by steam electric power plants: flue gas desulfurization (FGD) wastewater and bottom ash (BA) transport water." 2020 Steam Electric Reconsideration Rule | Effluent Guidelines | US EPA

Federal register notice:
Publication Date: 10/13/2020
Dates: This final rule is effective on December 14, 2020. In accordance with 40 CFR part 23, this regulation shall be considered issued for purposes of judicial review at 1:00 p.m. Eastern time on October 27, 2020. Under section 509(b)(1) of the CWA, judicial review of this regulation can be had only by filing a petition for review in the U.S. Court of Appeals within 120 days after the regulation is considered issued for purposes of judicial review. Under section 509(b)(2), the requirements in this regulation may not be challenged later in civil or criminal proceedings brought by EPA to enforce these requirements.
Effective Date: 12/14/2020
Document Type: Rule
Document Citation: 85 FR 64650
Agency/Docket Numbers: EPA-HQ-OW-2009-0819; FRL-10014-41-OW
RIN: 2040-AF77
Document Number: 2020-19542
Federal Register :: Steam Electric Reconsideration Rule

#43: RENEWED LEASES FOR A COPPER AND NICKEL MINING OPERATION ON THE BORDER OF MINNESOTA’S BOUNDARY WATERS CANOE AREA WILDERNESS

BACKGROUND

Twin Metals Minnesota, a subsidiary of Chilean mining company Antofagasta PLC, is seeking permits to open a large copper mine in the Boundary Waters area of Minnesota. The original mineral leases were sold in 1966, predating NEPA. The Obama administration denied the renewal of the leases and started a NEPA review due to the failure to diligently produce the lease and the need for an updated assessment of the impacts of leasing on the Boundary Waters region. In September of 2018, the USDA canceled the study. In addition, the DOI reinstated the mineral rights leases for the copper-nickel mine, reversing the former Solicitor’s analysis on the issue. Most recently, the Trump administration granted prospecting permits in the region during the pandemic with no opportunity for public input. These actions are the subject of litigation.

RESTORATIVE ACTION

The Biden administration can assess the status of the litigation and consider its policy options with regard to the recent lease renewal and issuance of prospecting permits. They can also restart the process for considering a long-term mineral withdrawal in the Boundary Waters area and seek a permanent withdrawal from Congress.

RESPONSIBLE AGENCY

Department of the Interior and Department of Agriculture

UPDATES

Most recent updates on litigation found: "A federal judge on (March 17, 2020) rejected a challenge by environmental groups against the proposed Twin Metals copper-nickel mine in northeastern Minnesota, saying the Interior Department had the authority to reverse itself and renew the project’s federal mineral rights leases...Those opponents, including the Campaign to Save the Boundary Waters and Friends of the Boundary Waters Wilderness, said they would appeal. They said the plain language in the leases meant that Twin Metals was not entitled to an automatic lease renewal...Twin Metals, owned by Chilean mining giant Antofagasta, filed its formal mine plan with state and federal regulators in December, launching what’s expected to be a lengthy environmental review and permitting process."
Judge Backs Minnesota’s Twin Metals Mine In Lease Dispute – WCCO | CBS Minnesota (cbslocal.com)

As of Jan 4, 2021, "Twin Metals is still in the early stages of its environmental review and permitting process with the state and federal government."

#44: PROPOSED CHANGES TO THE WAY COST-BENEFIT ANALYSES ARE CONDUCTED UNDER THE CLEAN AIR ACT, CLEAN WATER ACT, AND OTHER ENVIRONMENTAL STATUTES

BACKGROUND

The Trump administration EPA issued proposed rulemaking in June 2020 that would eliminate consideration of “co-benefits” - the reduction of pollutants not directly targeted by rulemaking - and calculate benefits only from reducing target pollutants. Previously, co-benefits were included in assessing cost-benefit to more accurately calculate/illustrate the true benefits of regulations. For example, reducing the amount of pollutants to meet a particular standard can have the co-benefit of reducing pollutants that harm public health, property, or the environment in addition to the particular issue driving the regulation. The new proposed cost-benefit analysis would limit consideration of only the economic impact of a proposed rule without taking into account possible benefits such as public health to justify expanding regulations, as has previously been done.

RESTORATIVE ACTION

The Biden administration can withdraw the rule if it is not final. If it is final, the Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

On December 9, 2020, EPA Administrator Andrew Wheeler announced the finalization of the rule (under the Clean Air Act) -- not yet in Federal Register
"Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process"
40 CFR 83
[EPA–HQ–OAR-2020-0044; FRL 10018-56-OAR]
RIN 2060-AU51
final_rule_increasing_consistency_and_transparency_in_considering_benefits_and_costs_in_the_clean_air_act_rulemaking_process_-_prepublication_version.pdf (epa.gov)
(Background: "EPA Administrator Andrew Wheeler released a memo in May of 2019 urging the agency's top officials to revise the way EPA weighs the costs of regulating pollutants against the benefits of limiting their release for public health and the environment. Instead of drafting an agencywide rulemaking as initially projected last year, the offices of Air and Radiation, Chemical Safety and Pollution Prevention, Land and Emergency Management, and Water are being asked to make their approach to cost-benefit analysis more consistent...Wheeler's memo announced that the Office of Air and Radiation would be the first of the four EPA offices to come out with a proposal."). Planned Changes to EPA Pollution Analyses Align with Industry Requests - Scientific American

#45: CHANGED FEDERAL ENERGY REGULATORY COMMISSION POLICY SO THAT THE INDIRECT EFFECTS OF GREENHOUSE GAS EMISSIONS ARE NOT CONSIDERED IN ENVIRONMENTAL REVIEWS OF PIPELINES

BACKGROUND

Fossil fuel impact analysis is characterized and regulated by different agencies as “upstream”, “midstream” and “downstream”. Production is upstream, transmission is midstream, and end use is downstream. The emissions that are created through gas extraction are upstream effects because they happen before the gas is transported to market. Emissions created through burning gas at power plants are downstream effects because they happen after the gas is transported. The Federal Energy Regulatory Commission (FERC) generally regulates the midstream infrastructure that transports gas from production facilities to end-users. In May of 2018 FERC issued a new policy interpretation of its authority to consider the effects of greenhouse gas. FERC oversees the siting and approval of interstate natural gas pipelines, and will no longer consider upstream and downstream environmental impacts that it claims fall outside of its review requirements under the NEPA. This included a declaration that FERC will no longer prepare upper-bound greenhouse gas emissions estimates for a proposed project when it asserts that those emissions fall outside of its NEPA requirements.

RESTORATIVE ACTION

The Biden administration can direct CEQ to restore Obama-era policy and regulations on the consideration of greenhouse gas and climate change. FERC would have to follow those regulations as an independent federal agency.

RESPONSIBLE AGENCY

Federal Energy Regulatory Commission

UPDATES

No updates; policy interpretation

#46: WEAKENED OFFSHORE DRILLING SAFETY REGULATIONS IMPLEMENTED FOLLOWING THE 2010 DEEPWATER HORIZON EXPLOSION AND OIL SPILL

BACKGROUND

Following the 2010 Deepwater Horizon explosion and oil spill, the DOI underwent a significant reorganization and issued rules and guidance to fill regulatory gaps in emergency response and operational oversight for offshore drilling. These included enhanced requirements for blowout prevention systems, worker safety, clean-up, and inspections. New regulations promoted by the Trump administration weaken these requirements, posing heightened risk from deep water drilling activities that can harm marine and coastal environments and local economies. In September of 2018 the Bureau of Safety and Environmental Enforcement (BSEE) issued a final rule that weakens Gulf oil spill, safety, and clean-up.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

Harm text says final rule published in September, 2018. Federal Register Publication Date of final rule: 05/15/2019. Effective Date: 07/15/2019
Document Type: Rule
Document Citation: 84 FR 21908
CFR: 30 CFR 250
Agency/Docket Numbers: Docket ID: BSEE-2018-0002; 190E1700D2 ET1SF0000.EAQ000 EEEE500000
RIN: 1014-AA39
Document Number: 2019-09362

#47: PROPOSED WEAKENING RULES ON OFFSHORE OIL AND GAS EXPLORATION BY FLOATING VESSELS IN THE ARCTIC

BACKGROUND

In July 2016 the Obama administration issued new Arctic-specific regulations focused on Outer Continental Shelf (OCS) exploratory drilling operations from floating vessels within the U.S. Beaufort and Chukchi Seas. These rules required oil companies to ensure proper internal controls and planning for oil spill prevention, containment and responses – all issues identified by previous DOI reports regarding Royal Dutch Shell 2012 exploration activities in the Arctic. The regulations codified and further developed current Arctic-specific operational standards to ensure that operators take the necessary steps to plan through all phases of OCS exploration in the Arctic, including mobilization, maritime transport, emergency response, and the conduct of safe drilling operations. In the fall of 2019, the BSEE issued a notice that it would be revising the Obama-era rule which will weaken the standards of environmental protection and safety. This new rule is expected to be finalized sometime in 2020.

RESTORATIVE ACTION

If the rule is not final, the Biden administration can direct the DOI to maintain the existing rule to protect Arctic waters. If final, the Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

12/9/2020: The Department of the Interior (DOI or Department), acting through BOEM and BSEE, has reviewed and is proposing to revise its existing regulations for exploratory drilling and related operations on the Arctic Outer Continental Shelf (OCS).
Federal Register notice publication date: 12/09/2020
Document Type: Proposed Rule
Comments Close: 02/08/2021
Document Citation: 85 FR 79266
CFR: 30 CFR 250; 30 CFR 550
Agency/Docket Number: Docket ID: BSEE-2019-0008, EEEE500000, 21XE1700DX, EX1SF0000.EAQ000
RIN: 1082-AA01
Document Number: 2020-25818
Federal Register :: Oil and Gas and Sulfur Operations on the Outer Continental Shelf-Revisions to the Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf

This proposed rule "would specifically eliminate a requirement that oil operators submit a detailed operations plan before filing an exploration request, according to a fact sheet published by the Bureau of Safety and Environmental Enforcement...The administration would also roll back a rule requiring operators to demonstrate they can quickly deploy containment equipment in case of spills, such as capping stacks or domes." US Moves to Loosen Safety Rules for Arctic (oedigital.com)

#48: EXEMPTED THE TONGASS NATIONAL FOREST IN ALASKA FROM THE ROADLESS RULE, ALLOWING PREVIOUSLY BANNED LOGGING AND ROAD CONSTRUCTION

BACKGROUND

In January 2001 the Clinton administration issued a “roadless rule” preventing road construction and logging on 58 million acres of undeveloped National Forest lands. The rule was challenged but finalized in December of 2002 and included protecting 9 million acres of the Tongass National Forest in Alaska. In October 2019 the USFS announced it would exempt the Tongass National Forest from the roadless rule, opening it up to road construction and logging. The final rule was released October 28, 2020. Actual construction of roads may trigger NEPA compliance which will be delayed in court.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act. In the interim, the new administration can place a moratorium on issuing permits for any timber sales or road construction in the Tongass National Forest.

RESPONSIBLE AGENCY

US Forest Service

UPDATES

Update already in harm text: "The final rule was released October 28, 2020. Actual construction of roads may trigger NEPA compliance which will be delayed in court."

#49: ELIMINATED THE EPA’S NATIONAL CENTER FOR ENVIRONMENTAL RESEARCH WHICH FUNDS SCIENTIFIC RESEARCH ON CHILDREN’S HEALTH AND ENVIRONMENTAL HEALTH DISPARITIES

BACKGROUND

The EPA’s National Center for Environmental Research (NCER) is perhaps best known for its research on the effects of chemicals on children’s health. The NCER provides grants to Children’s Environmental Health and Disease Prevention Research Centers, which were established in 1988 to discover methods to reduce children’s health risks from environmental factors. The Trump administration announced in Feb 2018 a reorganization of the EPA, terminating the NCER and reassigning its scientists to other programs at EPA. The EPA completed the reorganization and eliminated this office.

RESTORATIVE ACTION

The Biden administration can re-establish the NCER and return NCER scientists to its programs.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

No updates; EPA reorganization

#50: REDUCE CONSERVATION PROTECTIONS AND OPEN MORE LANDS TO DRILLING AND MINING IN WESTERN ALASKA

BACKGROUND

Areas of Critical Environmental Concern (ACEC) are BLM designations that highlight areas where special management attention is needed to protect important historical, cultural, and scenic values, fish and wildlife, or other natural resources. They are designated during the BLM Land Management Planning process. The Bering Sea-Western Interior (BSWI) Planning Area is located in western Alaska and encompasses approximately 62 million acres of land, including 13 million acres managed by the BLM. The planning area extends south from the Central Yukon watershed through the Kuskokwim River watershed, including all lands west of Denali National Park and Preserve to the Bering Sea. This 13 million-acre planning zone contains areas vital to Alaska Natives who depend on the fish and wildlife that the habitat supports. In March of 2019, the BLM released the draft BSWI Draft Resource Management Plan and Environmental Impact Statement. BLM’s preferred alternative in the plan would eliminate 1.8 million acres of ACECs and propose no new ACECs despite the request by Alaska Native communities to preserve 7 million acres of traditional use areas. The plan is not finalized.

RESTORATIVE ACTION

The Biden administration can restart the planning process and prioritize consideration of new or expanded Areas of Critical Environmental Concern and Alaska Native traditional use.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

[FR Doc. 2020–26646 Filed 12–3–20; 8:45 am]
"The 90-day public comment period on the Draft RMP/EIS ran from March 15, 2019, to June 13, 2019, with 17 public meetings held during that time to gather comments on the Draft RMP/EIS." (NOA Federal Register Notice BSWI PRMP-FEIS.pdf (blm.gov)).

"The Federal Register Notice of Availability for the Proposed Resource Management Plan (PRMP) and Final Environmental Impact Statement (FEIS) published on Friday December 4, 2020 and initiated the protest period and Governor's Consistency Review. The protest period will end Monday January 4, 2021." EplanningUi (blm.gov)

"In a statement issued on Tuesday, Dec. 8, the Bering Sea-Interior Tribal Commission said that the new resource management plan, which will guide management of these lands for the next 20 to 30 years, would significantly impact a total of 65 federally recognized Alaska Native tribes living within the planning area...The tribal commission contends that the BLM has failed to recognize planning area tribes’ knowledge, expertise and role as stewards of their traditional lands. The new BLM approved plan selects a newly developed alternative that cooperating agency tribes had no opportunity to review before the plan’s publication, the tribal commission’s statement said. BLM’s decision to reject meaningful protections for the nominated watersheds sends the clear message that voices of planning area tribes do not matter in the BLM’s planning processes, they said."
BLM resource management plan would open millions of acres to development - The Cordova Times

The Bering Sea-Western Interior Record of Decision / Approved RMP was published on 1/19/2021.
Both the Protest Resolution Report and The Record of Decision (ROD) / Approved Resource Management Plan (RMP) were signed by the Secretary of Interior and are available below.
Bering Sea - Western Interior Record of Decision and Approved Resource Management Plan (blm.gov)

#51: ELIMINATED A PROPOSED RULE THAT REQUIRED MINES TO PROVE THEY COULD PAY TO CLEAN UP FUTURE POLLUTION

BACKGROUND

The Obama administration published a proposed rule on January 17, 2017 to require mining companies to prove they had the financial capability of cleaning up a site after mining. This rule was meant to aid cash-strapped “Superfund” cleanups of areas contaminated by hazardous waste and was aimed at an industry with a long history of polluting streams and groundwater and leaving taxpayers to pay for the cleanup. The Trump administration’s EPA did not finalize the rule, claiming modern mining practices as well as other state and federal requirements made the financial responsibility rule superfluous -- transferring the cost of clean-ups back to federal and state agencies. Environmental groups sued and an appeals court in July of 2019 upheld the Trump administration decision not to reinstate the Obama administration rule.

RESTORATIVE ACTION

The Biden administration can restart the rule making process with an announcement in the Federal Register.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

No updates; already in harm text: July of 2019 upheld the Trump administration decision not to reinstate the Obama administration rule.

#52: OPENED THE NORTHEAST CANYONS AND SEAMOUNTS NATIONAL MONUMENT TO COMMERCIAL FISHING

BACKGROUND

The designation of national monuments is an executive power of the President established under the Antiquities Act of 1906. It has been used by almost all Presidents since to establish unique, federally owned areas for the protection of their natural, cultural, and scientific resources. President Obama used this authority to designate by proclamation the Northeast Canyons and Seamounts Marine National Monument in September,2016. The Monument is 4,913 square miles, including four underwater mountains and three deep-sea canyons and is home to rare and endangered whales and other marine species. The designation closed the area to commercial fishing but allows recreational fishing. On June 5, 2020, President Trump signed a proclamation lifting restrictions on commercial fishing within the Monument.

RESTORATIVE ACTION

The Biden administration can reinstate the moratorium on commercial fishing within the Monument with a new proclamation.

RESPONSIBLE AGENCY

National Oceanic and Atmospheric Administration

UPDATES

No updates; already in harm text: On June 5, 2020, President Trump signed a proclamation lifting restrictions on commercial fishing within the Monument.

#53: REMOVED BLANKET RULE UNDER THE ENDANGERED SPECIES ACT THAT AUTOMATICALLY CONVEYS THE SAME PROTECTIONS FOR THREATENED SPECIES AS FOR ENDANGERED SPECIES AND TO REDUCE CRITICAL HABITAT

BACKGROUND

Under section 4(d) of the Endangered Species Act species identified as “threatened” received the protections automatically, and then review is required to keep or remove specific protections. This practice has been in place for decades and is intended to prevent species from becoming more at risk and designated as endangered. Under the new rule established by the Trump administration, the protections will only be applied to a “threatened” species after the review. In addition, the new rule weakened enforcement and protections by considering the economic benefits of excluding certain habitat from protection. The USFWS published the final rule in September of 2019.

RESTORATIVE ACTION

The administration can announce in the Federal Register the beginning of a new rule process.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

"On August 27, 2019, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) jointly announced approved revisions to the Endangered Species Act (ESA). Most of the new regulations associated with revisions to the ESA went into effect on September 26, 2019. Due to the amount of internal and external training required on the changes related to interagency consultation, the agencies have delayed the effective date of the Section 7 changes until October 28, 2019." USFWS and NMFS Approve Changes to Implementation of Endangered Species Act | Civil & Environmental Consultants, Inc. (cecinc.com)

#54: REPEALED THE BUREAU OF LAND MANAGEMENT PLANNING RULE

BACKGROUND

In December of 2016 the BLM amended its regulations that establish the procedures used to prepare, revise, or amend land use plans pursuant to the Federal Land Policy and Management Act. The final rule affirmed the important role of other Federal agencies, State and local governments, Indian tribes, and the public during the planning process and enhances opportunities for public involvement and transparency during the preparation of resource management plans. The final rule enabled the BLM to more readily address resource issues at a variety of scales, such as wildfire, wildlife habitat, appropriate development or the demand for renewable and non-renewable energy sources, and to respond more effectively to change. The final rule also emphasized the role of using high quality information including the best available scientific information in the planning process, and the importance of evaluating resource, environmental, ecological, social, and economic conditions at the onset of planning. In March of 2017, Congress repealed the regulation under the Congressional Review Act.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process. Congressional authorization for a new rule may be required as the Congressional Review Act prohibits an agency from issuing a “substantially similar” rule without subsequent statutory authorization.

RESPONSIBLE AGENCY

Bureau of Land Management

UPDATES

No updates; already in harm text: In March of 2017, Congress repealed the regulation under the Congressional Review Act.

#55: ELIMINATED THE REQUIREMENT THAT OIL AND GAS COMPANIES REPORT METHANE EMISSIONS

BACKGROUND

In June of 2016 the EPA issued the “Information Collection Request” (ICR) for the oil and gas industry. The ICR was a mandatory reporting requirement on the release of methane from existing sources. This requirement previously had only applied to new wells. This was an attempt to understand the release of methane and to issue new regulations to control this greenhouse gas. The ICR was withdrawn in March of 2017 by the Trump administration and a new rule was published in March of 2020 that significantly rolls back EPA’s effort to control the release of methane.

RESTORATIVE ACTION

The administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

No updates; already in harm text: The ICR was withdrawn in March of 2017 by the Trump administration and a new rule was published in March of 2020 that significantly rolls back EPA’s effort to control the release of methane. Interestingly: "On Monday, 62 oil and gas companies representing 30% of global oil and gas operations joined a new voluntary agreement to report and reduce methane emissions, organized by the Environmental Defense Fund, the UN Environment Programme, the European Commission, and the Climate & Clean Coalition. Not a single one was American." US oil and gas companies opt of out methane emission agreement — Quartz (qz.com)

#56: REVISED AND PARTIALLY REPEALED A RULE LIMITING METHANE EMISSIONS ON FEDERAL AND TRIBAL LAND

BACKGROUND

The Obama administration BLM finalized a rule published in November of 2016 (the 2016 Waste Prevention Rule, also known as the Venting and Flaring Rule), that required oil and gas companies operating on federal or tribal lands to capture leaked methane, repair outdated leak-detection equipment, and develop new plans to reduce waste. The Trump administration finalized a repeal and replacement rule in September of 2018 that significantly lowered the standards for waste reduction. These matters have been the subject of litigation.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

Oct 12, 2020: "In a win for Wyoming’s oil and gas industry, a federal court overturned on Thursday a rule limiting the amount of methane and other pollutants emitted during natural gas production on public and tribal lands." Methane rule overturned; industry cheers decision by federal court judge | Wyoming | gillettenewsrecord.com

Update from Harvard EELP:
"Dec. 21, 2020 California and environmental organizations appeal the Wyoming district court’s October decision to vacate the 2016 Methane Waste Prevention Rule to the Tenth Circuit."
BLM Methane Waste Prevention Rule - Environmental & Energy Law Program - Harvard Law School

#57: LIMITED FUNDING OF ENVIRONMENTAL AND COMMUNITY DEVELOPMENT PROJECTS THROUGH CORPORATE SETTLEMENTS OF FEDERAL LAWSUITS

BACKGROUND

The use of third parties such as the National Park Foundation or the Fish and Wildlife Foundation to receive and administer settlement payments has been an effective way for the funding to be directed to implement important mitigation and environmental cleanup projects. Trump administration Attorney General Jeff Sessions issued a memo directing the Justice Department to no longer include funding for projects managed by outside groups in settlements with corporate wrongdoers. If the funding goes into the Treasury, Congress must then appropriate specific funds for mitigation and environmental clean-up.

RESTORATIVE ACTION

The Biden administration attorney general can rescind the memo and restore the practice of working with third parties to do environmental restoration.

RESPONSIBLE AGENCY

Department of Justice

UPDATES

No updates; AG memo

#58: PROPOSED PLANS TO SPEED UP AND WEAKEN ENVIRONMENTAL REVIEWS AND LAND MANAGEMENT PLANNING PROCESSES, INCLUDING THE ADDITION OF NEW EXEMPTIONS

BACKGROUND

The proposed weakening of environmental reviews and new exemptions were initiated as interior Secretarial Order 3355:“Streamlining National Environmental Policy Act Reviews” and implementation of Executive Order 13807: “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects”. These streamlining efforts culminated in a significant revision to the NEPA regulations that removed consideration of cumulative impacts from projects, limited the scope of review, imposed administrative exhaustion requirements, and expanded the use of categorical exclusions, among other things. In light of these efforts, the BLM has issued additional Federal Register Notices on new categorical exclusions from NEPA compliance. The Department of the Interior is developing regulations and proposed revisions to streamline the National Environmental Policy Act (NEPA) process, including the establishment of universal categorical exclusions, in light of the newly-revised NEPA regulations. The new NEPA regulations are the subject of challenge in litigation.

RESTORATIVE ACTION

The Biden administration can withdraw the Secretarial Order and begin the process of removing the new categorical exclusions.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

Federal Register Publication Date: 07/16/2020
Agency: Council on Environmental Quality
Dates: This is a major rule subject to congressional review. The effective date is September 14, 2020. However, if congressional review has changed the effective date, CEQ will publish a document in the Federal Register to establish the actual effective date or to terminate the rule.
Effective Date: 09/14/2020
Document Type: Rule
Document Citation: 85 FR 43304
CFR:
40 CFR 1500
40 CFR 1501
40 CFR 1502
40 CFR 1503
40 CFR 1504
40 CFR 1505
40 CFR 1506
40 CFR 1507
40 CFR 1508
40 CFR 1515
40 CFR 1516
40 CFR 1517
40 CFR 1518
Agency/Docket Number: CEQ-2019-0003
RIN: 0331-AA03
Document Number: 2020-15179
Federal Register :: Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act

9/8/2020: GAO reviewed the Council on Environmental Quality's (CEQ) new rule entitled "Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act." GAO found that the final rule updates the regulations for federal agencies to implement the National Environmental Policy Act (NEPA) and comprehensively updates, modernizes, and clarifies the regulations to facilitate more efficient, effective, and timely NEPA reviews by federal agencies in connection with proposals for agency action. B-332373, Council on Environmental Quality: Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act (gao.gov)

#59: WEAKENED THE PETROLEUM REFINERY SECTOR REGULATIONS THAT GOVERN HOW REFINERIES MONITOR POLLUTION IN SURROUNDING COMMUNITIES

BACKGROUND

In 2015, the EPA updated the Petroleum Refinery Sector Rule, which strengthened requirements for refineries under the National Emission Standards for Hazardous Air Pollutants and New Sources Performance Standards. The rule was projected to reduce emissions of toxic air pollutants by 5,200 tons per year and emissions of volatile organic compounds by 50,000 tons per year. The Trump administration EPA issued a new proposed rule in November of 2018 that weakened the standards for emissions release and reporting that can impact local communities’ health. The final rule was published in February of 2020.

RESTORATIVE ACTION

The administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

No updates; already in harm text: The Trump administration EPA issued a new proposed rule in November of 2018 that weakened the standards for emissions release and reporting that can impact local communities’ health. The final rule was published in February of 2020.

#60: ELIMINATED THE USE OF A PLANNING SYSTEM DESIGNED TO MINIMIZE HARM FROM OIL AND GAS ACTIVITY ON SENSITIVE LANDSCAPES SUCH AS NATIONAL PARKS

BACKGROUND

Master Leasing Plans (MLPs) are a planning approach introduced by the Obama administration to manage oil and gas activity on sensitive landscapes such as those near national parks and avoid harmful impacts to sensitive resources. The MLPs were used to identify and resolve conflicts with resource values such as watersheds and wildlife habitats through scientific assessment and stakeholder engagement. In January of 2018, by Instruction Memorandum (IM) No. 2018-034, discontinued the use of Master Leasing Plans by concluding they created duplicative layers of NEPA review. With regard to other leasing matters in this IM, BLM was barred from implementing this IM in sage grouse litigation. The litigation is ongoing.

RESTORATIVE ACTION

The Biden administration can reinstate the use of Master Leasing Plans.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

Most recent filing found from 7/24/20 denied all 3 (1) Anschutz Exploration Corporation’s (“AEC”) Motion to Intervene (Dkt. 198), (2) AEC’s Joinder of Motions to Stay Pending Appeal (Dkt. 205), and (3) Chesapeake Exploration, LLC’s (“Chesapeake”) Motion to Intervene (Dkt. 232).

"Of immediate relevance here, the Court’s February 27, 2020 Memorandum Decision and Order set aside IM 2018-034’s at-issue provisions and the Phase One lease sales applying them (the June and September 2018 lease sales in Nevada Utah, and Wyoming). See generally 2/27/20 MDO (Dkt. 174). AEC and Chesapeake each claim economic and property interests in certain of these Phase One lease sales, and now move to intervene to protect those interests moving forward, including on appeal...On May 12, 2020, the Court ordered the suspension of operations and production of the Phase One lease sales – rather than setting them aside – pending appeal. See 5/12/20 MDO, pp. 6-11 (Dkt. 226)"
Western Watersheds Project et al v. Zinke et al, 1:18-cv-00187, No. 272 (D.Idaho Jul. 24, 2020) (docketalarm.com)

Still in litigation
Western Watersheds Project et al v. Zinke et al, 1:18-cv-00187 (D.Idaho) via Docket Alarm

#61: WEAKENED THE REQUIREMENT THAT COMPANIES MONITOR AND REPAIR METHANE LEAKS FROM WELLS, PIPES, AND STORAGE FACILITIES

BACKGROUND

Methane is often vented or flared during oil and gas extraction and production and can leak from production equipment. The Obama administration DOI and its BLM published the “Waste Prevention, Production Subject to Royalties, and Resource Conservation” Rule (Waste Prevention Rule) in 2016 to “reduce the waste of natural gas from flaring, venting, and leaks from oil and gas production operations on public and Indian lands.” The rule addressed venting and flaring of associated gas from oil wells by limiting venting to cases of emergencies or when flaring is technically infeasible and required operators to capture a percentage of the gas they would otherwise flare for sale or use. It also required operators to regularly inspect well sites and compression stations for leaks, using an instrument-based approach, and to quickly address leaks found. The Trump administration’s BLM released its final Revision of the Waste Prevention Rule in September 2018. The final rule was published in March of 2020 which was quickly challenged by states and environmental groups.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process for the New Source Performance Standards (NSPS) for the Oil and Natural Gas Industry or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Environmental Protection Agency and Department of the Interior

UPDATES

"Sep. 14, 2020 EPA publishes the Review Rule in the Federal Register, immediately removing regulatory requirements for the transmission and storage segments of the oil and gas industry.

Sep. 14, 2020 A coalition of 24 states and municipalities filed suit to challenge EPA’s Review Rule, arguing it violates the Clean Air Act. The coalition notes it intends to challenge the Reconsideration Rule as well. CA v. Wheeler, 20-1357 (DC Cir.).

Sep. 15, 2020 EPA publishes the Reconsideration Rule in the Federal Register. It will go into effect on November 16th, 60 days after publication.

Sep. 14-15, 2020 A coalition of environmental groups sue EPA over the two methane rules, filing petitions for review with the DC Circuit challenging both the Review Rule and the Reconsideration Rule. Consolidated under Environmental Defense Fund, et al v. Andrew Wheeler, et al, Docket No. 20-01359 (D.C. Cir.).

Sep. 17, 2020 The D.C. Circuit issued an administrative stay for the Review Rule, preventing it from going into effect immediately as intended, pending its consideration of an emergency motion for stay in the litigation filed by environmental groups against the two rules. EDF v. Wheeler, 20-01359 (D.C. Cir.).

Oct. 27, 2020 The D.C. Circuit decides not to stay the Review Rule while it considers litigation challenging the rule, dissolving its earlier administrative stay that prevented the rule from going into effect immediately. EDF v. Wheeler, 20-01359 (D.C. Cir.).

Nov. 13, 2020 A coalition of environmental organizations argues in the D.C. Circuit for review of the Reconsideration Rule. This challenge asked the D.C. Circuit to block EPA’s reduction in leak monitoring frequency. EDF v. Wheeler, No. 20-1360 (D.C. Circuit)."
Current status from Harvard Environmental & Energy Law Program
EPA VOC and Methane Standards for Oil and Gas Facilities - Environmental & Energy Law Program - Harvard Law School

#62: LIMITED THE ABILITY OF INDIVIDUALS AND COMMUNITIES TO CHALLENGE EPA-ISSUED POLLUTION PERMITS

BACKGROUND

The Environmental Appeals Board (EAB) was created in 1992 to hear administrative appeals of enforcement proceedings and EPA-issued permits. In December of 2019, the Trump administration EPA issued a rule making: “Modernizing the Administrative Exhaustion Requirement for Permitting Decisions and Streamlining Procedures for Permit Appeals.” This new rule creates a new, time-limited alternative dispute resolution process as a precondition to judicial review. Under this proposal, the parties in the Administrative Dispute Resolution (ADR) process may agree by unanimous consent to either extend the ADR process or proceed with an appeal before the EAB. If the parties don’t agree to proceed with either the ADR process or an EAB appeal, the permit would become final and could not be challenged in federal court. EPA also proposes to amend the current appeal process to redefine the scope and standard of EAB review, remove a provision authorizing participation in appeals by amicus curiae, and eliminate the EAB’s authority to review regional permit decisions on its own initiative even absent an appeal. These changes will limit public participation and stifle environmental justice concerns.

RESTORATIVE ACTION

If the rule is finalized by the end of the Trump administration, then the Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act. If it is not finalized, it can be withdrawn by the Biden administration.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

The final rule was published in June, 2020.
RIN: 2015-AA03
CFR Citation: 40 CFR 124
View Rule (reginfo.gov)

#63: WEAKENED ENDANGERED SPECIES ACT ENFORCEMENT REGARDING INCIDENTAL HARMING OR KILLING OF ENDANGERED SPECIES

BACKGROUND

The Trump administration USFWS revised regulations (50 CFR part 17) that implement Section 10 of the Endangered Species Act. This section pertains to, among other things, permit issuance to protect endangered and threatened wildlife and plants. The revisions clearly make non-federal projects easier to permit, by redefining modifications of endangered species habitat as not automatically triggering a “take” determination. DOI completed the final rule change in August of 2019.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

Harm text says "DOI completed the final rule change in August of 2019",
but View Rule (reginfo.gov) shows it in the proposed rule stage (Agenda Stage of Rulemaking: Proposed Rule Stage)

#64: ALLOWED ELEPHANTS SHOT FOR SPORT IN ZIMBABWE AND ZAMBIA TO BE IMPORTED BACK TO THE US AS TROPHIES

BACKGROUND

In 2014, the Obama USFWS issued a ban on the importation of trophies from the killing of elephants from Zimbabwe and Zambia by US hunters. The impetus was to influence the protection of these species and to intervene in the trade of ivory. There was subsequent litigation to challenge the ban by the Safari Club. In March of 2018 the Trump administration USFWS issued a memorandum that states “In response to the D.C. Circuit Court’s opinion in Safari Club Int’!, et al. v. Zinke, et al., No. 16-5358 (D.C. Cir., Dec. 22, 2017), the Service hereby withdraws, effective immediately, the 2014 and 2015 Endangered Species Act (ESA) enhancement findings for trophies of African elephants taken in Zimbabwe”. This allows the trophies to be imported into the US.

RESTORATIVE ACTION

The Biden administration can reissue the moratorium by policy memorandum.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

No updates

#65: INCREASED LOGGING OF FOREST ON FEDERAL LAND TO “PREVENT FUTURE WILDFIRES” LIKE THE DEADLY BLAZES IN CALIFORNIA IN 2018

BACKGROUND

On December 21, 2019 President Trump signed Executive Order 18355 that directs the USFS and the DOI to increase timber production on national forests and other federal lands. The DOI and USDA have been instructed to harvest more than 4 billion board feet of timber that will then be put up for sale -- 31% more than what the agencies harvested in 2017.

RESTORATIVE ACTION

The Biden administration can rescind this EO, assess policy options to address the risks of wildfire through the lens of climate change, and use its planning authority to implement sound forest management practices, including the value of conservation.

RESPONSIBLE AGENCY

Office of the President

UPDATES

No updates; EO

#66: WEAKENED OVERSIGHT OF STATE AND FEDERAL PLANS TO REDUCE AIR POLLUTION AND REGIONAL HAZE

BACKGROUND

In 1999, the Environmental Protection Agency (EPA) issued regulations, known as the Regional Haze Rule, to improve visibility, or visual air quality, in 156 national parks and wilderness areas across the country. These areas include many of our best known and most treasured natural areas, such as the Grand Canyon, Yosemite, Yellowstone, Mount Rainier, Shenandoah, the Great Smoky Mountains, Acadia, and the Everglades. The regulations call for states to establish goals for improving visibility in national parks and wilderness areas and to develop long-term strategies for reducing emissions of air pollutants that cause visibility impairment known as regional haze State Implementation Plans (SIPs). If the states do not, then the EPA will issue Federal Implementation Plans (FIPs) for the state. The Obama administration issued a new Regional Haze Rule in 2016 that drew significant litigation. The Trump administration obtained a stay of that litigation pending its review of the 2016 Rule. While the Trump administration has not issued any new regulations on this topic, it issued a Presidential Memorandum in April of 2018 directing EPA to consider state’s requests to implement SIPs in lieu of FIPs under the Regional Haze Rule. In 2018, EPA released a “Regional Haze Reform Roadmap” that leans towards state regulation of air emissions and reliance on other Clean Air Act programs to implement fulfill obligations regarding regional haze matters. As an example, EPA issued a final rule in September of 2017 in a specific case in Texas that allowed a Cross-State Air Pollution Rule (CSAPR) as an alternative to best available retrofit technology (BART).

RESTORATIVE ACTION

The Biden administration can assess the status of the litigation regarding the Obama-era 2016 regulation, the current non-regulatory measures taken under the Trump administration, and develop a policy objective that fulfills the original objectives of the Regional Haze Rule.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

On August 20, 2019, EPA released a memo, "Guidance on Regional Haze State Implementation Plans second implementation period" to assist states with plans due July 31, 2021; replaces 2016 draft regional haze document.
8-20-2019_-_regional_haze_guidance_final_guidance.pdf (epa.gov)

#67: STREAMLINED THE APPROVAL PROCESS FOR DRILLING FOR OIL AND GAS IN NATIONAL FORESTS TO ALLOW PRODUCING TO BEGIN MORE QUICKLY

BACKGROUND

In September of 2018 the Trump administration USFS proposed “updating, clarifying, and streamlining” regulations that could broadly change how the agency handles oil and gas leasing across the 193 million acres of national forests and grasslands. The intent of the changes would be to quicken lease decisions and decrease permitting times and reduce public input. The rule making was announced in 2018 and the proposed rule was published in September of 2020.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

US Forest Service and the Department of the Interior

UPDATES

No updates beyond what is already in harm text. Harvard's EELP is tracking updates here (for future updates): Forest Service Proposal Deemphasizes Environmental Concerns to Streamline Oil and Gas Leasing Process - Environmental & Energy Law Program - Harvard Law School

#68: OFFERED THE LARGEST-EVER 77- MILLION ACRE OIL AND GAS LEASE AUCTION IN THE GULF OF MEXICO

BACKGROUND

In the wake of the 2010 Macondo (Deepwater Horizon) Gulf Oil spill, the Obama administration DOI took a cautious approach to further leasing in the Gulf of Mexico. In 2017, the Trump administration BOEM offered lease sales for oil and gas drilling on 77 million acres of the Gulf of Mexico. This was the largest lease sale in US history. As of 2018, less than1% of the area had been leased and the continued drop in oil prices has left the majority of the lease areas still open.

RESTORATIVE ACTION

The Biden administration can withdraw the remaining 99% of the original lease sale area. The administration can also conduct an inventory of existing leases, abandoned wells, and enforcement incidents to update its offshore policy in the Gulf of Mexico in a manner that is consistent with its overall energy policy.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

March 20, 2019: "The Trump administration’s fourth major auction for oil and gas leases in the U.S. Gulf of Mexico received $244 million in high bids on Wednesday, reflecting an uptick in interest from drillers attracted to the region’s low prices....Of the 78.5 million acres (31.77 million hectares) offered, companies submitted bids on 1.26 million acres, or about 1.6 percent of the total, an increase from two sales last year when about 1 percent of acreage offered received bids...Despite the higher revenue and acreage, the price per acre was below that of the last sale held in August, about $193 an acre compared with $222 an acre."
Low prices spark interest in latest U.S. Gulf oil, gas lease sale | Reuters

#69: PROPOSED REDUCING DESERT CONSERVATION PROTECTIONS BY REVISING THE CALIFORNIA DESERT RENEWABLE ENERGY CONSERVATION PLAN

BACKGROUND

During the Obama administration a major planning effort was launched to develop renewable energy in the California desert to select areas that would have the least impact on other resources such as desert tortoise and bighorn sheep, the water table, and adjacent national parks and wilderness areas. The Desert Renewable Energy Conservation Plan (DRECP) took eight years to finalize and the Record of Decision was signed on September 14, 2016 by the BLM. It covers approximately 11 million acres of BLM-managed lands in the southern California desert. In February of 2018 the Trump administration BLM announced it would revisit and amend the DRECP, reducing the conservation area designations. A revised DRECP has not been released.

RESTORATIVE ACTION

The Biden administration can halt the amendment process and commit to the existing plan for conservation and renewable energy development.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

No documents have been posted on the BLM National NEPA register since the 2018 Notice of Intent (as of December 16, 2020)
EplanningUi (blm.gov)

Still no other documents have been uploaded since the Notice of Intent.

#70: WEAKENED THE ENDANGERED SPECIES ACT RECLASSIFICATION, LISTING DETERMINATION, AND CRITICAL HABITAT DESIGNATION FOR MANY SPECIES

BACKGROUND

The Trump administration proposed a new regulation that redefines critical habitat for endangered species and sets a new limit on identifying “unoccupied” habitat. It states “The Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied would be inadequate to ensure the conservation of the species” and “that the area contains one or more of those physical or biological features essential to the conservation of the species”. This change will significantly reduce the areas designated as critical habitat, especially those areas of a species’ former range that has been altered. The Trump administration DOI proposed the rule change in August of 2020.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat Comments closed 10/8/2020.
Publication Date: 09/08/2020
RIN: 1018-BD84
Document Number: 2020-19577
Agency/Docket Numbers:
Docket No. FWS-HQ-ES-2019-0115
FF09E23000 FXES1111090FEDR 201
"USFWS proposes to amend portions of their regulations that implement section 4 of the Endangered Species Act of 1973, as amended (Act). The proposed revisions set forth a process for excluding areas of critical habitat under section 4(b)(2) of the Act..."
Federal Register :: Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat

Another 2020 ESA change: Endangered and Threatened Wildlife and Plants; Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat -- "We, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively referred to as the “Services” or “we”), propose to add a definition of “habitat” to our regulations that implement section 4 of the Endangered Species Act of 1973, as amended (Act)."
Publication Date: 08/05/2020
Comments closed 9/4/2020
Document Type: Proposed Rule
CFR: 50 CFR 424
Agency/Docket Numbers:
Docket No. FWS-HQ-ES-2020-0047, FF09E23000 FXES1111090FEDR 201
Docket No. 200720-0197
RIN: 0648-BJ44 1018-BE69
Document Number: 2020-17002
Federal Register :: Endangered and Threatened Wildlife and Plants; Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat

Final rules effective as of January, 2021.
Updates from Harvard EELP Regulatory Rollback tracker:
"Dec. 16, 2020 FWS and NMFS finalize the rule defining “habitat” in their ESA implementing regulations, limiting its application to designating critical habitat. The final definition is: “For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.” The rule is effective Jan. 15, 2021.

Dec. 18, 2020 FWS finalizes a rule for designating critical habitat. The new rule establishes a process for excluding areas of critical habitat along with a non-exhaustive list of categories of potential impacts FWS will consider when determining whether to exclude an area. The rule is effective Jan. 19, 2021."
Endangered Species Act Regulations - Environmental & Energy Law Program - Harvard Law School

#71: ELIMINATED MOST OF THE REQUIREMENTS OF THE 2017 CHEMICAL DISASTER RULE AIMED AT IMPROVING SAFETY AT SITES THAT USE HAZARDOUS CHEMICALS

BACKGROUND

The Chemical Disaster Rule, made final by the Obama administration in January of 2017, protected both workers and fence-line communities by strengthening emergency preparedness and coordination with local first responders and forcing chemical facilities with the worst accident records, such as petroleum refineries, to consider implementing available safety precautions to save lives and prevent harm. In November of 2019, the Trump administration EPA published a new final rule which eliminated most of the safety protections put in place in January of 2017.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

Rule final, in litigation.

Current status from Harvard EELP:
"Dec. 19, 2019 EPA publishes its final revised rule in the Federal Register, making it effective.

Dec. 19, 2019 A coalition of thirteen organizations, represented by Earthjustice, petitions the Court of Appeals for the DC Circuit, arguing EPA’s revisions to the Chemical Disaster Rule are unlawful.

Jan. 7, 2020 The United Steelworkers petitions the Court of Appeals for the DC Circuit challenging EPA’s changes to the chemical disaster rule, arguing it “rescind[s] crucial provisions” of the rule.

Jan. 29, 2020 Thirteen states, the District of Columbia, and the City of Philadelphia petition the Court of Appeals for the DC Circuit to review EPA’s final rule published in December, arguing EPA’s rollback of prior protections jeopardizes public safety.

Sept. 4, 2020 EPA denies three petitions filed for reconsideration of the rule.

Oct. 2, 2020 The DC Circuit Court of Appeals continues to hold the consolidated cases before it in abeyance and requires parties to file motions about the future of the case by Dec. 3, 2020. Air Alliance Houston v. EPA, No. 19-1260 (D.C. Cir.).

Oct. 26, 2020 Environmental organizations file a lawsuit challenging EPA’s Sep. 4, 2020 denial of their petition requesting the agency reconsider its changes to the accidental release program. Community In-Power & Dev., et al v. EPA, et al, No. 20-01430 (D.C. Cir. Oct 26, 2020)."
Chemical Disaster Rule – Risk Management Plan / Accidental Release Prevention Requirements - Environmental & Energy Law Program - Harvard Law School

#72: ALLOW THE FEDERAL GOVERNMENT TO ISSUE PERMITS FOR COAL ASH WASTE DISPOSAL IN INDIAN COUNTRY AND SOME STATES WITHOUT REVIEW IF THE DISPOSAL SITE IS IN COMPLIANCE WITH FEDERAL REGULATIONS

BACKGROUND

The Obama administration established a broad coal ash rule in April 2015 which established the first-ever comprehensive set of federal requirements for the disposal of coal ash in landfills and surface impoundments. The Rule established a federal permitting program under the Resource Conservation and Recovery Act (RCRA) for the disposal of coal combustion residuals (CCR). On December 19, 2019, the Trump administration Environmental Protection Agency released a proposed new rule for CCRs that would allow disposal on state and tribal lands without compliance. A final rulemaking is expected by the end of 2020.

RESTORATIVE ACTION

The Biden administration can withdraw the rule if it is not final. If it is final the Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Federal CCR Permit Program
The notice of a proposed rulemaking was published in the Federal Register on 2/20/20. On 4/14 2020 the comment period was extended, and on 5/19, was further extended to 7/19/2020. The final rule is scheduled to go into effect 05/2021.
View Rule (reginfo.gov)

Agency/Docket Numbers:
EPA-HQ-OLEM-2019-0361
FRL-10009-86-OLEM
RIN: 2050-AH07
Document Number: 2020-10582

#73: WEAKENED BLM ENVIRONMENTAL REGULATIONS FOR WATER POLLUTION AND FRACKING ON FEDERAL AND INDIAN LANDS

BACKGROUND

On March 26, 2015, the BLM published in the Federal Register a final rule: “Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands.” Under the rule, companies that drill on public or Native American lands were subject to stricter standards for oil and gas wells, and for ponds and tanks where toxic wastewater that resulted from the fracking process is stored. With the rule, the Obama administration also sought to compel oil and gas firms to report what chemicals they use when they employ fracking. In December of 2017, the Trump administration BLM replaced the existing rule with a final rule weakening regulation of fracking on public lands.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

No updates; This final rule effective as of December 29, 2017.
Agency/Docket Number:
LLWO300000 L13100000 PP0000 18X
RIN: 1004-AE52
Document Number: 2017-28211
Federal Register :: Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands; Rescission of a 2015 Rule

#74: REVISED THE PROCESS FOR PERMITTING INCIDENTAL HARMING OR KILLING OF EAGLES

BACKGROUND

The Trump administration DOI Solicitor issued a “M” opinion in December of 2017 that changed a 40-year-old interpretation of the MBTA. This was followed by an instructional memorandum to the USFWS in April of 2018 directing the USFWS to not prosecute violations unless the killing of a migratory bird was intentional, including bald eagles. In May of 2020, the USFWS released an EIS that will address the specific changes to the rules governing the take of migratory birds, including bald eagles. The Service issued advance notice of proposed rulemaking in February of 2020 soliciting feedback on a variety of potential approaches to further improve permitting of incidental take of eagles. A federal court has struck down the Solicitor Opinion’s reversal of the long-standing interpretation of the Department. In light of this ruling, a new regulation supporting the new Solicitor’s opinion is not likely in the near term.

RESTORATIVE ACTION

The Biden administration’s Secretary of the Interior can rescind the “M” opinion and issue new direction to the USFWS and rescind the EIS.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

While the Judge's order vacated the M-Opinion in August, according to the US FWS, "the court's vacatur of the M-Opinion does not directly affect our rulemaking process and effectively underscores the need to codify an official interpretation of the MBTA's application to incidental take. Therefore, the rulemaking process continued, addressing legal issues raised by the court, as appropriate."

The comment period for the Draft EIS review & analysis closed on July 2020, and the Final EIS was published November 27, 2020. The Final EIS is available for public review for 30 days (until December 28), after which the NEPA process ends with a issuance of the Record of Decision (which documents the decision of the USFWS for selecting the alternative of choice). The last step will be to issue a final rule, which is expected before Biden's inauguration.
Rulemaking process and timeline | U.S. Fish & Wildlife Service (fws.gov)

Notice of availability of EIS in Federal Register: 2020-26179.pdf (federalregister.gov)

Jan 7, 2021: The final regulation defining the scope of the Migratory Bird Treaty Act published in the Federal Register. It goes into effect on February 8, 2021.
Rulemaking process and timeline | U.S. Fish & Wildlife Service (fws.gov)

#75: WEAKENED A PORTION OF THE CLEAN WATER ACT REGULATIONS TO LIMIT STATES’ POWER TO VETO PIPELINE AND OTHER INFRASTRUCTURE PROJECTS DUE TO WATER QUALITY CONCERNS

BACKGROUND

The Trump administration EPA issued a proposed rule in August,2019 that weakens a portion of the Clean Water Act to make it easier for the EPA to issue permits for federal projects over state or tribal objections if the projects don’t meet local water quality standards. This rule weakens state authority to implement the Clean Water Act. Projects under this weakened rule included pipelines and other fossil fuel facilities. A final rule was issued in July of 2020. Multiple lawsuits have been filed challenging the rule.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

As of December 21, 2020, a US District Judge ruled that the Delaware Riverkeeper Network has "shown enough evidence of standing and potential harm to keep alive its lawsuit seeking to undo an EPA regulation that reinterprets section 401 of the Clean Water Act" which effectively "unraveled states' and tribes' authority to block pipeline projects under the Clean Water Act". The EPA had moved to dismiss the challenge.

Read more at: https://www.law360.com/articles/1339712/epa-must-face-challenge-to-water-permit-limitations?copied=1

MEMORANDUM RE MOTION TO DISMISS AND MOTIONS TO INTERVENE: 5fe0b32086763701f2b492ef (law360.com)

#76: WEAKENED STANDARDS FOR MERCURY EMISSIONS FROM COAL POWER PLANTS BY CREATING A NEW METHOD OF CALCULATING THE COSTS AND BENEFITS OF CURBING MERCURY POLLUTION

BACKGROUND

The Obama administration EPA completed a new regulation in 2012 on the release of mercury, sulfur dioxide, fine particulates, and other pollutants from coal fired power plants. The rule calculated the health co-benefits of these reductions, balancing the cost of the equipment against improvements to public health. In April of 2020, the Trump administration issued its final regulations by removing the appropriate and necessary finding (a precursor to setting Mercury and Air Toxic Standards (MATS) while leaving the MATS standard in place and also permitted four power plants to increase their emissions, overall making it easier to relax pollution controls that are costly to the power plants. Multiple lawsuits have been filed and are pending.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

Current status of litigation from Harvard Environmental & Energy Law Program:

"MATS is still in effect. EPA reversed the appropriate and necessary finding underpinning MATS but did not rescind the rule.

April 9, 2020 EPA issues a final rule adjusting emissions limits for four power plants that burn eastern bituminous coal refuse (a form of coal mining waste). The new standards allow the affected plants to release higher amounts of acid gas and SO2 emissions.

April 16, 2020 EPA releases the final rule reversing the appropriate and necessary finding. EPA also finalizes the residual risk and technology review and determines that after compliance with MATS, the residual risks from power plant hazardous air pollutant emissions are acceptable and the standards should not be tightened. The final rule is published in the Federal Register on May 22, 2020.

May 22, 2020 Westmoreland Mining Holdings LLC files a petition for review in the D.C. Circuit challenging the legality of MATS. Westmoreland Mining Holdings v. EPA, No. 20-1160 (D.C. Cir.).

The DC Circuit has consolidated the following petitions under Westmoreland Mining Holdings v. EPA, No. 20-1160 (D.C. Cir.). Many of the parties have also moved to intervene in the lawsuit to defend EPA’s decision to not rescind MATS, including the power companies, coalitions of states, and coalition of advocacy organizations.

June 19, 2020 Environmental, civil rights, and public health groups file a lawsuit challenging EPA’s reversal of the appropriate and necessary finding. The court later consolidates this case with Westmoreland’s challenge to MATS. American Academy of Pediatrics v. Andrew Wheeler, No. 20-01221 (D.C. Cir.).

July 20, 2020 A coalition of 25 states, cities, and counties led by Massachusetts file a lawsuit challenging the reversal of the MATS appropriate and necessary finding. Massachusetts v. EPA, No. 20-01265 (D.C. Cir.).

July 20, 2020 A coalition of power companies files a petition challenging the 2020 reversal. Advanced Emissions Solutions v. EPA, No. 20-01266 (D.C. Circuit).

July 21, 2020 A coalition of environmental organizations file a lawsuit challenging EPA’s residual risk and technology review, in which EPA concluded MATS adequately protects public health. Air Alliance Houston v. EPA, No. 20-02168 (D.C. Cir.).

July 21, 2020 A group of utilities file a lawsuit challenging the reversal of the MATS appropriate and necessary finding. Calpine Corporation v. EPA, No. 20-01270 (D.C. Cir.).

July 21, 2020 Puget Sound Energy files a lawsuit challenging the reversal of the MATS appropriate and necessary finding. Puget Sound Energy v. EPA, No. 20-1271 (D.C. Cir.).

June 15, 2020 a coalition of environmental groups file a lawsuit challenging EPA’s less stringent emissions limits for the four power plants that burn eastern bituminous coal refuse. Citizens for Pennsylvania’s Future v. EPA, No. 20-1207 (D.C. Cir.). The groups also file a petition for reconsideration with EPA.

July 31, 2020 The D.C. Circuit suspends (holds in abeyance) for 90 days the challenge to EPA’s less stringent acid gas and SO2 limits for power plants burning eastern bituminous coal refuse. The environmental groups requested this hold to give EPA time to respond to their request that the agency reconsider the final rule. Citizens for Pennsylvania’s Future v. EPA, No. 20-1207 (D.C. Cir.).

Aug. 28, 2020 Westmoreland Mining Holdings LLC requests that the D.C. Circuit sever and put on hold its case challenging the legality of MATS. This would allow the cases challenging the reversal of the appropriate and necessary finding to advance separately. The public health and environmental organizations that intervened in the case support this motion. Westmoreland Mining Holdings v. EPA, No. 20-1160 (D.C. Cir.).

Sep. 28, 2020 The D.C. Circuit grants Westmoreland’s request to sever and put on hold its case challenging the legality of MATS. Westmoreland Mining Holdings v. EPA, No. 20-1160 (D.C. Cir.)."
Mercury and Air Toxics Standards - Environmental & Energy Law Program - Harvard Law School

#77: CANCELED EXISTING RULE AND PROPOSED REVISING LIMITS ON THE NUMBER OF ENDANGERED MARINE MAMMALS AND SEA TURTLES THAT CAN BE UNINTENTIONALLY KILLED OR INJURED WITH SWORD-FISHING NETS ON THE WEST COAST

BACKGROUND

The Obama administration proposed a rule to put hard caps on the take of whales (fin, humpback, sperm, short-finned pilot), dolphins (bottlenose), and sea turtles (leatherback, loggerhead, olive ridley, and green) from large gillnets by thresher shark and sword fisherman in in the Pacific fishery. Under the rule, if the “hard cap” on bycatch is reached, the fishery will be closed for up to two seasons using a rolling two-year period. The Trump administration withdrew the proposed rule. A new rule, establishing only observers and no caps was proposed by NOAA in January of 2020.

RESTORATIVE ACTION

The Biden administration can withdraw the proposed rule and announce in the Federal Register the beginning of a new rule process.

RESPONSIBLE AGENCY

National Oceanic and Atmospheric Administration

UPDATES

Current Status from Harvard Environmental & Energy Law Program:

"June 12, 2017 The proposed rule is withdrawn.

July 17, 2017 Oceana sues NMFS over the withdrawal, alleging that the agency acted arbitrarily and violated the Magnuson-Stevens Act, by withdrawing the proposed rule. Oceana v. NOAA/NMFS. No. 2:17-cv-05146 (C.D. Cal.).

Sept. 27, 2018 Then Governor of California Jerry Brown signs Senate Bill 1017 to phase out the use of large drift gillnets in the swordfish and shark fishery. The bill establishes a four-year transition plan funded through private-public partnerships and authorizes compensation for fishermen who surrender their drift gillnet permit and used nets.

Nov. 7, 2018 The U.S. District Court in California rules in favor of Oceana. The judge sends the proposed rule back to NMFS and orders the agency to reissue the rule or to revise the proposal in consultation with the Pacific Fishery Management Council.

Jan. 2, 2019 NMFS and the National Oceanic and Atmospheric Administration (the agency that oversees NMFS) appeal the case to the Ninth Circuit Court of Appeals. Oceana, Inc. v. Ross, No. 19-55021 (9th Cir.).

April 23, 2019 All parties agree to voluntarily dismiss the pending appeal Oceana, Inc. v. Ross, No. 19-55021 (9th Cir.).

Feb. 7, 2020 NMFS publishes a “hard cap” rule for swordfish and thresher shark fishing to go into effect on March 9, 2020.

March 6, 2020 California fishermen file a lawsuit challenging the “hard cap” rule for swordfish. They argue that the rule is unconstitutional under the Constitution’s Appointments and Take Care Clauses and that the economic impact of the rule violates the Magnuson-Stevens Act’s mandate that conservation measures “minimize adverse economic impacts.” Williams v. Ross, No. 1:20-cv-00667 (D.D.C.)."
Pacific Bycatch Limits for Whales, Dolphins, and Sea Turtles - Environmental & Energy Law Program - Harvard Law School

Federal Register document on final hard cap rule:

Fisheries off West Coast States; Highly Migratory Fisheries; California Drift Gillnet Fishery; Protected Species Hard Caps for the California/Oregon Large-Mesh Drift Gillnet Fishery

Publication Date: 02/07/2020
Agencies: National Oceanic and Atmospheric Administration
Dates: The final rule is effective March 9, 2020. Comments on the final rule and supporting documents must be submitted in writing by March 23, 2020.
Effective Date: 03/09/2020
Comments Close: 03/23/2020
Document Type: Rule
CFR: 50 CFR 660
Agency/Docket Number:
Docket No. 200204-0041
RIN: 0648-BJ58
Document Number: 2020-02458
Federal Register :: Fisheries off West Coast States; Highly Migratory Fisheries; California Drift Gillnet Fishery; Protected Species Hard Caps for the California/Oregon Large-Mesh Drift Gillnet Fishery

#78: REPEALED THE STREAM PROTECTION RULE

BACKGROUND

The Stream Protection Rule was published by the DOI in December 2016. This rule was developed “in order to avoid or minimize impacts on surface water, groundwater, fish, wildlife, and other natural resources” from coal mining. In particular, it was designed to prevent mountain-top mining operations – where the top of a mountain is removed with dynamite to reach underground coal seams – from dumping the mountain rubble in nearby valleys and waterways. It was repealed in February 2017 through H.R. 38 pursuant to the Congressional Review Act and never took effect.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process. Congressional authorization for a new rule may be required as the Congressional Review Act prohibits an agency from issuing a “substantially similar” rule without subsequent statutory authorization.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

Update already in harm text: It was repealed in February 2017 through H.R. 38 pursuant to the Congressional Review Act and never took effect.

#79: RESCINDED REGULATIONS MEANT TO REDUCE LEAKING AND VENTING OF POWERFUL GREENHOUSE GASES KNOWN AS HYDROFLUOROCARBONS FROM LARGE REFRIGERATION AND AIR CONDITIONING SYSTEMS

BACKGROUND

The Obama administration EPA issued a regulation in 2016 that intended to further reduce emissions of refrigerants from air conditioning and industrial refrigeration equipment that used substitute refrigerants such as hydrofluorocarbons. The rule required more stringent leak inspection, repair requirements, recordkeeping, and reporting. The rule had previously applied to only known ozone-depleting pollutants and this change extended it to other refrigerants. In February 2020, the Trump administration EPA Administrator signed the final rule “Protection of Stratospheric Ozone: Revisions to the Refrigerant Management Program’s Extension to Substitutes” exempting appliances with 50 or more pounds of substitute refrigerants such as hydrofluorocarbons. This new regulation is under legal challenge, and a D.C. Circuit opinion has opined on issues related to the Obama era regulation.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

Current Status from Harvard Environmental & Energy Law Program:

"April 7, 2020 The D.C. Circuit rules that EPA did not properly implement its 2017 decision in Mexichem Fluor, Inc. v. EPA, 866 F.3d 451 (D.C. Cir.). In that case, the court determined that EPA could forbid companies using ozone-depleting substances from switching to HFCs as a substitute. The court also determined that EPA did not have the authority to make companies switch a second time if they had already switched to using HFCs as a replacement before the agency realized the harmful effects of HFCs. The D.C. Circuit now decides that EPA’s response to the decision went too far by removing HFCs from the list of unsafe substitutes all together, thereby allowing current users of ozone-depleting substances to now shift to HFCs. The D.C. Circuit vacated EPA’s guidance because it was made without notice to the public or an opportunity for comment. The court remanded it back to EPA for further proceedings. Nat. Res. Def. Council v. Wheeler, No. 18-1172 (D.C. Cir.).

May 11, 2020 A coalition of states and the Natural Resources Defense Council file two separate petitions in the D.C. Circuit challenging EPA’s 2020 refrigerant management rule. Nat. Res. Def. Council v. Wheeler, Docket No. 20-01150 (D.C. Cir.)."

Final Rule in the Federal Register:

Publication Date: 03/11/2020
Agency: Environmental Protection Agency
Dates: This final rule is effective on April 10, 2020.
Document Type: Rule
CFR: 40 CFR 82
Agency/Docket Numbers:
EPA-HQ-OAR-2017-0629
FRL-10006-10-OAR
RIN: 2060-AT81
Document Number: 2020-04773
Federal Register :: Protection of Stratospheric Ozone: Revisions to the Refrigerant Management Program's Extension to Substitutes

Updates from Harvard EELP:
Dec. 11, 2020 EPA finalizes a rule expanding the list of acceptable substitutes in the Significant New Alternatives Policy (SNAP) Program and includes an HFC substance as an acceptable substitute.

Dec. 22, 2020 In a year-end omnibus bill, Congress agrees to phase down production and consumption of HFCs 85% by 2036.
Hydrofluorocarbons and Kigali Amendment to Montreal Protocol - Environmental & Energy Law Program - Harvard Law School

#80: APPROVED CHEMICALS OUT OF COMPLIANCE WITH THE TOXIC SUBSTANCES CONTROL ACT AS AMENDED IN 2016

BACKGROUND

In 2016, the Toxic Substances Control Act (TSCA) was amended to include new health and transparency requirements for the review of potentially toxic chemicals needing approval from EPA, such as asbestos, lead, mercury, and formaldehyde. Since 2016 the EPA has approved more than 1,700 chemicals. According to a lawsuit, the Trump administration’s EPA did not follow the proper public notification protocol for many of these chemicals and has not released health-related information on these chemicals as required under TSCA.

RESTORATIVE ACTION

The information required under TSCA for chemicals approved since 2016 can be made publicly available by the Biden administration. In addition, the Biden administration can revisit the approval of these chemicals.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

In November of 2019, a federal appeals court ruled that "the Trump administration unlawfully excluded millions of tons of some of the most dangerous materials in public use from a safety review".

"Chemistry council spokesman Scott Openshaw did not directly respond to the judges’ ruling on so-called “legacy” uses of chemicals no longer in manufacture. Openshaw said the group was pleased with a portion of the ruling in which judges agreed with industry: The court said the EPA was justified in not considering the risks from chemicals that have already been disposed of, such as in landfills. However, the court said if those landfills leak or if chemicals are spilled, those should still be considered as part the safety review."

The EPA had until the Summer of 2020 to finalize risk evaluations for the first 10 chemicals under review, then decide if new regulations are needed.

Court rules Trump EPA unlawfully ignored dangerous chemicals - ABC News (go.com)

#81: WEAKENED REGULATIONS REGARDING MINING FOR GOLD, COPPER, AND OTHER “LOCATABLE MINERALS” ON PUBLIC LANDS

BACKGROUND

The BLM permits the mining for gold, copper, and other “locatable” minerals on both BLM and USFS lands. In September 2018 the Trump administration USFS published an Advanced Notice of Rulemaking to align its permitting with that of the BLM, both streamlining the process and weakening the standards. In March 2020 the USFS announced intent to produce an EIS for the purposes of rulemaking for mining. The justification is based on Presidential Executive Order 13771 and Executive Order 13817, “A Federal Strategy To Ensure Secure and Reliable Supplies of Critical Minerals”.

RESTORATIVE ACTION

The Biden administration can repeal the Executive Orders and halt the EIS Process and assess whether any rulemaking or land management planning needs to occur to align its goals with its energy platform.

RESPONSIBLE AGENCY

Department of the Interior and US Department of Agriculture

UPDATES

Locatable Mining Rule - 36 CFR 228, subpart A. EIS. According to the Schedule of Proposed Actions, the EIS is expected in late 2020.
Schedule Of Proposed Action - 10/01/2020 to 12/31/2020 - Vinton Furnace EF (fs.fed.us)

Notice of intent to prepare an environmental impact statement in Federal Register:

Publication Date: 04/01/2020
Agencies: Forest Service
Dates: An advanced notice of proposed rulemaking was published in the Federal Register, Vol. 83, No. 178, Thursday, September 13, 2018. The Forest Service invited comments regarding challenges the public has experienced with respect to aspects of the agency's current regulations at 36 CFR 228, subpart A, and issues the public foresees with respect to potential revision of these regulations. Comments were due October 15, 2018. The proposed rule and draft environmental impact statement are expected in 2020. The next public comment period will be announced when the proposed rule and draft environmental impact statement are available.
Comments Close: 10/15/2018
Document Citation: 85 FR 18186
Page: 18186-18187 (2 pages)
Document Number: 2020-06791
Schedule Of Proposed Action - 10/01/2020 to 12/31/2020 - Vinton Furnace EF (fs.fed.us)

Locatable Mining Rule - 36 CFR 228, subpart A. EIS
In Progress: DEIS NOA in Federal Register 09/13/2018
Est. FEIS NOA in Federal Register 11/2021
Expected:12/2021
Schedule Of Proposed Action - 10/01/2020 to 12/31/2020 - Vinton Furnace EF (fs.fed.us)

#82: WITHDREW A PROPOSED REGULATION REQUIRING GROUNDWATER PROTECTIONS FOR CERTAIN URANIUM MINES

BACKGROUND

The Nuclear Regulatory Commission (NRC) issued proposed regulations in January 2019 that would weaken the protection of groundwater from existing uranium mines and the disposal of mine tailings. In addition, the Trump administration’s Nuclear Fuel Working Group proposed opening up 1,500 acres outside Grand Canyon National Park to on site uranium ore processing, as well as on land removed from Bear’s Ears National Monument. The NRC opened a comment on proposed rule making in January 2019, but no further rule making has occurred.

RESTORATIVE ACTION

If the rule is not finalized the Biden administration can withdraw the proposal for a new rule and resubmit the proposal that was underway in 2016.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

Current Status from Harvard Environmental & Energy Law Program:

"Jan. 31, 2019 The Nuclear Regulatory Commission issues a request for comment on whether it should restart the process of promulgating its own ISR regulations now that EPA has withdrawn its proposal. It had put a previous effort to develop regulations on hold pending EPA’s proposal.

July 23, 2020 EPA and the Nuclear Regulatory Commission sign a Memorandum of Understanding (MOU) for establishing and implementing water quality standards for in-situ recovery. The MOU limits the types of standards EPA can set and prevents EPA from developing specific compliance mechanisms. The result is that states will be primarily responsible for regulating groundwater pollution from mining operations because the Nuclear Regulatory Commission delegates oversight of uranium mining to most states."
Uranium Extraction Water Quality Standards - Environmental & Energy Law Program - Harvard Law School

#83: ALLOWED COASTAL REPLENISHMENT PROJECTS TO USE SAND FROM PROTECTED ECOSYSTEMS

BACKGROUND

In 1982 Congress established the Coastal Barrier Resources System (CBRS), which protects 1.4 million acres of land around the country from development. The DOI has long held that the law prohibited using federal money to remove sand from those critical areas to replenish beaches elsewhere. In 2019, the Trump administration USFWS advised federal agencies that the Coastal Barrier Resources Act allows for sand removal from CBRS units to be used to replenish beaches located both within and outside the CBRS so long as the proposed project is consistent with the purposes of the Act and meets the statutory exception for “nonstructural projects for shoreline stabilization that are designed to mimic, enhance, or restore natural stabilization systems.” This was a reversal of policy contrary to the decades-long position of the FWS. The Trump administration changed the policy to make it easier for coastal communities to take sand from protected ecosystems to improve/replenish their beaches. The shift makes it less expensive for some of the wealthiest communities in the country to replenish their beachfronts.

RESTORATIVE ACTION

The Biden administration can reestablish the policy that sand from CBRA areas cannot be used to replenish beaches.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

Current Status from Harvard Environmental & Energy Law Program:

"Nov. 4, 2019 The Office of the Solicitor reverses its 1994 position and now finds that the Coastal Barrier Resources Act does not prohibit the use of sand from a protected area for beach replenishment outside of the area. The Army Corps can now move forward with replenishment projects like the New Jersey Shore Protection project that removes sand from protected areas.

July 2, 2020 The National Audubon Society files a lawsuit against the Department of Interior alleging that the Nov. 4 letter is being implemented by the U.S. Fish & Wildlife Service as an unlawful rule (“the Excavation Rule”) in violation of the National Environmental Policy Act and the Administrative Procedure Act. Nat’l Audubon Soc’y v. Bernhardt, No. 1:20-cv-05065 (S.D.N.Y.).

Oct. 2, 2020 Department of Interior files a motion to dismiss the case against it. Nat’l Audubon Soc’y v. Bernhardt, No. 20-cv-5065 (S.D.N.Y).

Nov. 6, 2020 The National Audubon Society files a motion for partial summary judgment. Nat’l Audubon Soc’y v. Bernhardt, No. 20-cv-5065 (S.D.N.Y)."
Coastal Barrier Resources Sand Policy - Environmental & Energy Law Program - Harvard Law School

#84: WEAKENED THE RULE REQUIRING INDUSTRY REPORTING ON THE RELEASE OF TOXIC PERFLUORINATED “FOREVER” CHEMICALS INTO THE ENVIRONMENT

BACKGROUND

The Trump administration EPA issued a new rule on June 22, 2020 adding perfluorinated (PFAS) chemicals to the list of those that must be reported if released into air, water, or land. The EPA finalized the rule without obtaining public comment. The threshold release for reporting requirements is 100 pounds and the regulation provides an exemption from reporting if no single PFAS chemical in a mixture released exceeded 1% of the total. Environmental groups opposed the rule, stating that EPA should have enacted a drinking water standard for PFAS, not merely adopted a reporting requirement, especially with the large loophole included.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

No updates as of 12/27/20

"On January 19, 2021, EPA issued a final guidance document that outlines which imported articles are covered by the agency’s July 2020 final Significant New Use Rule that prohibits companies from manufacturing, importing, processing, or using certain long-chain PFAS without prior EPA review and approval. This guidance document provides additional clarity for importers of articles that may contain long-chain PFAS as part of a surface coating."

#85: PERMITTED THE USE OF SEISMIC AIR GUNS FOR GAS AND OIL EXPLORATION IN THE ATLANTIC OCEAN

BACKGROUND

Airgun blasts are used to locate oil and gas under the ocean floor but they can kill marine life and disrupt fisheries. Under the authority of the Marine Mammal Protection Act, in January of 2017, the Obama administration denied all pending permits for the use of seismic air guns in the Atlantic Ocean. It was a decision based on ocean conservation and reducing dependence on fossil fuels. In November of 2018, the Trump administration National Marine Fisheries Service (NMFS) issued permits for seismic airgun use in the ocean. This is a policy action and a reversal of existing prohibitions under the Marine Mammal Protection Act. The permits are currently being challenged in court.

RESTORATIVE ACTION

The Biden administration can drop the legal defense of the NMFS permits and issue new policy from NOAA prohibiting this type of testing.

RESPONSIBLE AGENCY

National Oceanic and Atmospheric Administration

UPDATES

Current status from Harvard Environmental & Energy Law Program:

"Oct. 6, 2020 The federal district court in South Carolina dismisses the case challenging NOAA Fisheries’ five approved incidental take authorizations as moot after the government acknowledged that these authorizations are expiring in November and the companies would need to apply for new authorizations if they wanted to proceed. The court also noted that it “is aware of no practical purpose for seismic testing on the Outer Continental Shelf other than as a prelude to offshore oil exploration and development.” The companies still needed final permits from BOEM to begin seismic surveys, the final step after having received their NOAA authorizations that never came. South Carolina Coastal Conservation League v. Ross 2:18-cv-03326 (D.S.C. Dec 11, 2018)."
Offshore Oil and Gas Incidental Take Authorizations and Geological and Geophysical Permits (seismic surveys) - Environmental & Energy Law Program - Harvard Law School

#86: APPROVED A LAND EXCHANGE AGREEMENT THAT WOULD ALLOW A REMOTE ALASKAN VILLAGE TO CONSTRUCT A ROAD THROUGH THE IZEMBEK NATIONAL WILDLIFE REFUGE

BACKGROUND

Multiple attempts have been made to approve the construction of a 17-mile road through the wilderness area of the Izembek National Wildlife Refuge connecting the towns of King Cove to Cold Bay, Alaska. A proposed land transfer of 43,000 acres of land owned by the state of Alaska and the King Cove Corporation was ultimately blocked by the DOI in 2013. The Trump administration renewed the land exchange in 2018. The action effectively overrules wilderness protections that have kept the area off limits to vehicles for decades. In June 2020, the U.S. District Court for the District of Alaska issued an order voiding the land exchange agreement.

RESTORATIVE ACTION

The Biden administration should assess the status of the litigation and the impact of the court’s ruling and determine whether the prior decision in 2013 remains in effect due to the legal deficiencies identified by the court.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

In August 2020, the U.S. Department of the Interior announced it plans to appeal a judge’s rejection of the plan for a road that would pass through Alaska's Izembek National Wildlife Refuge.
Federal Government to Appeal Rejection of Alaska Refuge Road | Alaska News | US News

#87: ALLOWED STATES AND THE EPA TO TAKE LONGER TO DEVELOP AND APPROVE PLANS AIMED AT CUTTING METHANE EMISSIONS FROM EXISTING LANDFILLS

BACKGROUND

The Municipal Solid Waste Landfill New Source Performance Standards and Emissions Guidelines require emissions reductions from municipal landfills, targeting the powerful greenhouse gas methane. The Obama administration’s EPA issued the final rule in August 2016 (RIN 2060-AM08). In 2017, the Trump administration delayed the EPA rule that required reduction in methane gas release from landfills. Lawsuits were filed and the court forced EPA to issue new rules. A final rule was issued in September of 2019 that lowered the standards for methane release.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

Current Status from Harvard Environmental & Energy Law Program:

"Aug. 26, 2019 EPA publishes a final rule revising the 2016 emissions guidelines for existing landfills. The rule changes the timing requirements to align with the updated Clean Air Act section 111(d) implementing regulations finalized in the Affordable Clean Energy rule on July 8, 2019. (see more about the ACE rule on the Clean Power Plan page) The new rule requires states to submit their plans within three years of the publication of emissions guidelines. EPA then must approve or disapprove the state plans within twelve months after they are determined to be complete. Under the old rule, states had nine months to submit plans, and EPA had four months to respond.

Oct. 24, 2019 A federal judge in the Northern District of California held a hearing on EPA’s request that he amend his May order requiring EPA to comply with Obama-era landfill air pollution regulations by November 6 in light of more recent rule revisions EPA argues makes the order moot. At a hearing on EPA’s motion, the judge expressed concern that instead of complying EPA has amended its regulations to extend the rule’s deadline by several years. California v. EPA, Case No. 4:18-cv-03237 (N.D. Cal.).

Oct. 25, 2019 Nine states petition the DC Circuit for review of EPA’s Final Rule on landfill regulations, arguing that EPA’s proposed amendment and delay of the California District Court’s order to review 7 state plans by November 6 would cause exposure to the full set of harms under the Final Rule, which amends Obama-era landfill air pollution regulations. California v. EPA, Case No. 19-1227 (D.C. Circuit).

Dec. 17, 2019 A federal court denies EPA’s request to stay its Nov. 5, 2019 order confirming the court-ordered schedule for EPA to approve or disapprove state implementation plans by Sep. 6, 2019 and to issue a federal plan (applicable to disapproved states) by Nov. 6, 2019. EPA asked the court to put the deadlines on hold while it appeals the court’s Nov. 5th decision not to amend them. EPA had asked the court to amend the deadlines after it issued a new rule on Aug. 26, 2019 attempting to change the underlying compliance dates in the 2016 landfill emissions rule. — California v. EPA, No. 4:18-cv-03237 (N.D. Cal.).

Oct. 22, 2020 The Ninth Circuit rules that EPA can delay its issuance of a new federal plan for landfill emissions until August 30, 2021. This decision reverses a lower court ruling that EPA had to issue the new plan by November 6, 2019. California v. EPA, No. 4:18-cv-03237 (9th Cir.)."
Municipal Solid Waste Landfill New Source Performance Standards and Emissions Guidelines - Environmental & Energy Law Program - Harvard Law School

#88: ENDED A BAN ON CERTAIN CONTROVERSIAL SPORT HUNTING PRACTICES IN NATIONAL PRESERVES AND WILDLIFE REFUGES IN ALASKA

BACKGROUND

In October 2015 the National Park Service issued regulations prohibiting certain sport hunting practices that many people consider extreme in national preserves in Alaska including hunting of female bears in the den with cubs, baiting bears and wolves, and killing swimming caribou from motorboats. In June 2020, the DOI and the NPS finalized the rule that reversed these prohibitions. Additionally, the USFWS proposed to initiate a similar rulemaking process for changes to Kenai National Wildlife Refuge regulations for the same type of hunting.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process to restore these prohibitions.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

Current Status from Harvard Environmental & Energy Law Program:

"June 9, 2020 The National Park Service publishes a final rule repealing prohibitions on certain activities targeting bears and other predators in national preserves in Alaska.

June 11, 2020 The Fish and Wildlife Service proposes altering regulations to allow hunting brown bears with bait in Kenai National Wildlife Refuge.

Aug. 25, 2020 Environmental groups file a lawsuit challenging the repeal of prohibitions on certain hunting practices in national preserves in Alaska. Alaska Wildlife Alliance v. Bernhardt, No. 3:20-cv-00209 (D. Alaska).

Nov. 13, 2020 Judge Sharon Gleason upholds Obama-era hunting limitations in the Kenai Wildlife Refuge by granting BLM’s motions for summary judgment. Alaska v. Bernhardt, No. 3:17-cv-00013 (D. Alaska).

Nov. 25, 2020 BLM moves to dismiss a lawsuit brought by environmental groups, arguing that plaintiffs lack standing to challenge the hunting practices in question. Alaska Wildlife Alliance v. Bernhardt, No. 3:20-cv-0009 (D. Alaska)."
Hunting in National Preserves and Wildlife Refuges in Alaska - Environmental & Energy Law Program - Harvard Law School

#89: PROPOSED AMENDING REGULATIONS REGARDING GRAZING ON PUBLIC LANDS TO ALLOW GRAZING TO REDUCE WILDFIRE RISK

BACKGROUND

The BLM currently manages livestock grazing on 155 million acres of public land and administers nearly 18,000 grazing permits and leases. The Trump administration BLM published a Notice of Intent in the Federal Register in January of 2020 to prepare an Environmental Impact Statement to consider proposed revisions to the agency’s grazing regulations. The new regulations would expand grazing for the purposes of reducing fire risk. The BLM initiated public scoping in January of 2020 for amending the grazing regulations. Considering the complexity of grazing practices, this is unlikely to be completed in 2020.

RESTORATIVE ACTION

The BLM can rescind the intent to complete an EIS.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

Current Status from Harvard Environmental & Energy Law Program:

"Jan. 21, 2020 BLM publishes a Notice of Intent to overhaul grazing regulations for public lands. BLM intends that the revisions will address 2014 amendments to the Federal Land Policy and Management Act, which allow for the automatic continuation of expired grazing permits or leases pending any remaining environmental review, and exclude certain permit and livestock transport decisions from environmental review. The Bureau also plans to address GAO’s recommendation that BLM provide a procedure for informal resolution of unauthorized grazing violations at the local level. BLM states that it is interested in improving permitting efficiency, promoting land health, and allowing adequate public participation without burdening the administrative process. Western Watersheds Project notes concern that the changes will result in decreased enforcement against illegal grazing.

June 11, 2020 BLM releases its final scoping report summarizing 3,775 substantive public comments on the proposed grazing regulation revision.

Nov. 2, 2020 The Forest Services issues a notice of proposed rulemaking that would allow the agency to not impose monetary penalties for unauthorized grazing where the grazing was non-willful. The comment period ends on Dec. 2."
Public Lands Grazing Rules - Environmental & Energy Law Program - Harvard Law School

Proposed rule in Federal Register:

Assessing Fees for Excess and Unauthorized Grazing
Publication Date: 11/02/2020
Agencies: Forest Service
Dates: To be ensured consideration, comments must be received in writing on or before December 2, 2020.
Comments Close: 12/02/2020
Document Type: Proposed Rule
CFR: 36 CFR 222
RIN: 0596-AD45
Document Number: 2020-24164
Federal Register :: Assessing Fees for Excess and Unauthorized Grazing

#90: REPEALED THE RULE THAT STATE AND REGIONAL AUTHORITIES TRACK TAILPIPE EMISSIONS FROM VEHICLES ON FEDERAL HIGHWAYS

BACKGROUND

In 2016 the Federal Highway Administration (FHA) issued guidance and a rule (the Carbon Emissions Rule) establishing new performance standards for transportation projects receiving federal dollars. This rule required all state and local transportation officials to tally and report their carbon pollution caused by highway expansions and to develop plans to reduce the climate impact of transportation. In May of 2018 the Trump administration Department of Transportation and FHA repealed the Obama rule and completed a final rule in June 2018.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Federal Highway Administration

UPDATES

No updates further than what is included in harm text: "In May of 2018 the Trump administration Department of Transportation and FHA repealed the Obama rule and completed a final rule in June 2018."

Federal Register final rule notice:

National Performance Management Measures; Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement Program
Publication Date: 05/31/2018
Agencies: Federal Highway Administration
Dates: This final rule is effective July 2, 2018.
Effective Date: 07/02/2018
Document Type: Rule
CFR: 23 CFR 490
Agency/Docket Number:
Docket No. FHWA-2017-0025
RIN: 2125-AF76
Document Number: 2018-11652
Federal Register :: National Performance Management Measures; Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement Program

#91: ELIMINATED THE REQUIREMENT THAT GULF OIL RIG OWNERS PROVE THEY CAN COVER THE COSTS OF REMOVING RIGS ONCE THEY STOP PRODUCING

BACKGROUND

On September 12, 2016, BOEM issued a Notice to Lessees and Operators (NTL No. 2016N01) that provided new guidance for when BOEM would require additional financial assurance for leases, pipeline rights-of-way, and rights-of-use and easements. Additional financial security is often required by BOEM to ensure operators can meet decommissioning costs. This was part of the suite of safety and environmental regulations adopted after the Deepwater Horizon oil spill. The rule required owners to buy additional bonds or provide other assurance that they could cover the costs of removing rigs once they stopped producing. In September of 2018, the Trump administration BSEE, issued a final rule regarding Gulf Oil spill, safety and clean-up. Its new rule revised or removed 2016 provisions it determined were “unduly burdensome” on the industry. This included removal of the requirement for an independent third-party certification that equipment will function in extreme conditions. There is pending litigation on this issue.

RESTORATIVE ACTION

The administration can announce in the Federal Register the beginning of a new rule process.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

Federal Register final rule notice:

Oil and Gas and Sulphur Operations on the Outer Continental Shelf-Oil and Gas Production Safety Systems
Publication Date: 09/28/2018
Agencies: Bureau of Safety and Environmental Enforcement
Dates: This rule becomes effective on December 27, 2018.
Effective Date: 12/27/2018
Document Type: Rule
CFR: 30 CFR 250
Agency/Docket Numbers:
Docket ID: BSEE-2017-0008
189E1700D2 ET1SF0000.PSB000 EEEE500000
RIN: 1014-AA37
Document Number: 2018-21197
Federal Register :: Oil and Gas and Sulphur Operations on the Outer Continental Shelf-Oil and Gas Production Safety Systems

From Harvard EELP:
May 29, 2019 BSEE publishes an corrections to its September 28, 2018 final rule that adjusts the formatting of tables to make it more easily printable in the Code of Federal Regulations This revision was made at the request of the Office of the Federal Register and does not change the substance of the rule.
BSEE Offshore Production Safety Systems Rule Update - Environmental & Energy Law Program - Harvard Law School

#92: PROPOSED EXPANDING HUNTING AND FISHING IN NATIONAL WILDLIFE REFUGES

BACKGROUND

The USFWS opened some national wildlife refuges (NWRs) to hunting or fishing by policy directive from the Trump administration’s Secretary of the Interior. In April 2019 the USFWS proposed regulations that would open seven refuges that are closed to hunting by law, eight refuges that are currently closed to hunting and fishing, and open or expand hunting and sport fishing at 89 other NWRs. The Trump administration also proposed to open hunting or sport fishing on nine units of the National Fish Hatchery System as well as 41 limited-interest easement NWRs in North Dakota for upland game and big game hunting.

RESTORATIVE ACTION

The Biden administration can reverse the policy decision by the Secretary of the Interior and announce in the Federal Register the beginning of a new rule process.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

Final rule in the Federal Register:

Publication Date: 08/31/2020
Agencies: Fish and Wildlife Service
Dates: This rule is effective August 31, 2020.
Effective Date: 08/31/2020
Document Type: Rule
Document Citation: 85 FR 54076
CFR:
50 CFR 32
50 CFR 36
50 CFR 71
Agency/Docket Numbers:
Docket No. FWS-HQ-NWRS-2020-0013
FXRS12610900000-201-FF09R20000
RIN: 1018-BE50
Document Number: 2020-16003
Federal Register :: 2020-2021 Station-Specific Hunting and Sport Fishing Regulations

#93: PROPOSED EXPANDING OFF-ROAD VEHICLE ACCESS AND INCREASED MOTORIZED USE IN SOME NATIONAL PARK SERVICE AREAS

BACKGROUND

The Trump administration DOI and NPS released a series of special regulations that would expand the use of off road vehicles within some units of the NPS. Because each park unit has its own regulations, there is not one overarching regulation. The regulations expand off-road motorized vehicle access/use within Glen Canyon National Recreation Area, Cape Lookout National Seashore, Big Cypress National Preserve, and Fire Island National Seashore; amend regulations for motorized vehicle use within Ozark National Scenic Riverways; amend special regulations for Pictured Rocks National Lakeshore to designate a new snowmobile route (prohibited within areas of the National Park System); and amend special regulations for Gulf Island National Seashore governing the use of personal watercraft.

RESTORATIVE ACTION

The Biden administration can issue a notice to issue new regulations for each of these park units, restricting off road vehicle use.

RESPONSIBLE AGENCY

National Park Service

UPDATES

Glen Canyon National Recreation Area regulations in final rule stage. RIN: 1024-AD93
View Rule (reginfo.gov)

Cape Lookout National Seashore regulations in final rule stage. RIN: 1024-AE24. Final action is listed as: 03/00/2021
View Rule (reginfo.gov)

Big Cypress National Preserve: On October 26, 2020, the NPS released its Draft Backcountry Access Plan/EIS for Public Comment.

"The 45-day comment period begins October 30 with the publication of the Notice of Availability in the Federal Register and ends on December 15, 2020.

The draft EIS – developed in cooperation with the U.S. Forest Service, U.S. Fish and Wildlife Service and Florida Fish and Wildlife Conservation Commission – analyzed five alternatives, including the no-action alternative, and identified a preferred alternative. The plan incorporates feedback from the public comment periods in 2014 and 2016. Each of the action alternatives analyzed in the plan has been developed considering wilderness eligibility assessments completed in 2010 and 2015, with the result that all proposed off-road vehicle (ORV) trails and motorized recreational opportunities would avoid wilderness eligible areas.

The NPS selected Alternative 5 as the preferred alternative...."
Draft Backcountry Access Plan/EIS Released for Public Comment - Big Cypress National Preserve (U.S. National Park Service) (nps.gov)

Environmental Impact Statements; Notice of Availability in Federal Register: Federal Register :: Environmental Impact Statements; Notice of Availability

Fire Island National Seashore - Negotiated Rulemaking Advisory Committee announced in Federal Register:

Negotiated Rulemaking Advisory Committee for Off-Road Driving Regulations at Fire Island National Seashore
Publication Date: 11/27/2000
Agencies: National Park Service
Dates: Interested persons are invited to comment on the proposal to create this Committee. In addition, any persons who believe that they will be affected significantly by the proposed rule and who believe their interests will not be represented adequately by the persons identified in this Notice of Intent are invited to apply for or nominate another person for membership on the Committee. Each application must contain the information described in the ``Application for Membership'' section below. Applications or nominations for membership on the Committee must be received by close of business on December 27, 2000.
Comments Close: 12/27/2000
Document Type: Proposed Rule
CFR: 36 CFR chapter undef
Document Number: 00-29119
Federal Register :: Negotiated Rulemaking Advisory Committee for Off-Road Driving Regulations at Fire Island National Seashore

Ozark National Scenic Riverways regulations in proposed rule stage.
Ozark National Scenic Riverways; Motorized Vessels
RIN: 1024-AE62
Timetable: NPRM 11/00/2020
View Rule (reginfo.gov)

Pictured Rocks National Lakeshore - Proposed rule in Federal Register:

Pictured Rocks National Lakeshore; Snowmobiles
Publication Date: 11/06/2020
Agencies: National Park Service
Dates: Comments must be received by January 5, 2021.
Comments Close: 01/05/2021
Document Type: Proposed Rule
CFR: 36 CFR 7
Agency/Docket Numbers:
NPS-PIRO-29724
PPMWPIRON0 PPMRSNR1Z.Y00000 200P103601
RIN: 1024-AE53
Document Number: 2020-24545
Federal Register :: Pictured Rocks National Lakeshore; Snowmobiles

Gulf Island National Seashore regulations in proposed rule stage:
Gulf Islands National Seashore; Personal Watercraft
RIN: 1024-AE55
Publication ID: Fall 2020
Timetable: NPRM 11/00/2020
View Rule (reginfo.gov)

#94: ALLOW INDIVIDUAL PROPERTY OWNERS TO VETO AREA LISTING ON THE NATIONAL REGISTER OF HISTORIC PLACES

BACKGROUND

The NPS issued a rule making in April 2019 that among other changes would allow a single landowner within a National Register nominated area to block the nomination, thus preventing historic preservation over a neighborhood that supports the designation. This rule would amend regulations related to nominations from Federal agencies of historic properties for listing on the National Register of Historic Places, as well as regulations related to determinations of eligibility for listing historic properties, Public Law 114-289, The National Park Service Centennial Act, title VIII, amended provisions of the National Historic Preservation Act (NHPA) (54 U.S.C. 300101 et seq.). The rule is not final.

RESTORATIVE ACTION

If not yet final, the Biden administration can issue notice to repeal the regulation.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

As of Sept, 2020: "Currently, the Seashore manages ORV driving based on 1987 driving regulations and issues driving permits via Special Use Permits for residents and other services. The Seashore is taking a hard look at the existing regulations to identify where regulations can be changed in order to create a more efficient and less burdensome driving permit program for both the NPS and community members."

Fire Island National Seashore hosted two webinars in September to share information with the public about the park’s evaluation and on-going project related to the Off-Road Vehicle driving program.
National Park Service - PEPC - Fire Island NS Pre-NEPA Off Road Vehicle Driving Regulation and ORV Management Plan (nps.gov)
FINS WEBINARS REVIEWING 4X4 PERMIT REGULATIONS - The Fisherman

#95: WEAKENED RESTRICTIONS ON PESTICIDE APPLICATION IN AGRICULTURAL BUFFER ZONES

BACKGROUND

The EPA sets application exclusion zone (AEZ) requirements under its Agricultural Worker Protection Standard under the Federal Insecticide, Fungicide, and Rodenticide Act. An AEZ is defined as the area extending horizontally around application equipment. Under EPA’s revision of the standard in 2015, employers are required to keep workers and other persons out of AEZs during pesticide application. These buffer zones are intended to protect farmworkers and bystanders from accidental exposure to pesticides. On November 1, 2019 the Trump administration EPA proposed updates to the Worker Protection Standard regulation that would result in greater pesticide exposure of agricultural workers, bystanders, family members, and adjacent residents. The public comment period on the proposed revisions closed on January 30, 2020.

RESTORATIVE ACTION

If the rule is finalized by the end of the Trump administration, then the Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act. If it is not finalized, it can be reversed by the Biden administration.

RESPONSIBLE AGENCY

Environmental Protection Agency

UPDATES

Final Rule published in Federal Register (effective 12/29/20):

Pesticides; Agricultural Worker Protection Standard; Revision of the Application Exclusion Zone Requirements
Publication Date: 10/30/2020
Agency: Environmental Protection Agency
Effective Date: 12/29/2020
Document Type: Rule
CFR: 40 CFR 170
Agency/Docket Numbers:
EPA-HQ-OPP-2017-0543
FRL-10016-03
RIN: 2070-AK49
Document Number: 2020-23411
Federal Register :: Pesticides; Agricultural Worker Protection Standard; Revision of the Application Exclusion Zone Requirements

As of 12/18/2020: "New York Attorney General Letitia James, leading a coalition of five states, announced a lawsuit against the U.S. Environmental Protection Agency (EPA) for illegally weakening protections for farmworkers, their families, and others from toxic pesticides. The coalition’s lawsuit argues that EPA violated federal law when it adopted a regulation that allows pesticide spraying to continue even if farmworkers or other persons are within the area immediately surrounding the spraying equipment, if that area is outside the farm’s boundaries."
AG James Sues to Stop the EPA from Weakening Pesticide Poisoning Protections for Farmworkers | New York State Attorney General (ny.gov)

#96: LOOSENED FISHING RESTRICTIONS INTENDED TO REDUCE BYCATCH OF ATLANTIC BLUEFIN TUNA

BACKGROUND

On April 2, 2020 the Trump administration NMFS published a final rule consistent with its 2019 proposal to loosen fishing restrictions intended to reduce bycatch of Atlantic Bluefin tuna. The rule eliminates the Cape Hatteras Gear Restricted Area and shortens the yearlong weak hook requirement for the Gulf of Mexico to a seasonal requirement. It also changes two restricted areas (Northeastern United States Closed Area and the Spring Gulf of Mexico Gear Restricted Area to “monitoring areas.” These areas will be under evaluation for three years, meaning that some pelagic longline fishing will be allowed at times when the areas were previously closed.

RESTORATIVE ACTION

The Biden administration can announce in the Federal Register the beginning of a new rule process.

RESPONSIBLE AGENCY

National Oceanic and Atmospheric Administration

UPDATES

Final rule in Federal Register:

Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries; Pelagic Longline Fishery Management
Publication Date: 04/02/2020
Agencies: National Oceanic and Atmospheric Administration
Effective Date: 04/02/2020
Document Type: Rule
CFR: 50 CFR 635
Agency/Docket Number: Docket No. 200330-0091
RIN: 0648-BI51
Document Number: 2020-06925
Federal Register :: Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries; Pelagic Longline Fishery Management

According to Harvard's Environment & Energy Law Program,
"April 29, 2020 Two non-profits file a lawsuit challenging the changes to the Northeastern US Closed Area and the Spring Gulf of Mexico GRA. They allege that it “violates [NMFS’] fundamental duties to prevent and end overfishing through management measures based on the best available science, to enact measures necessary to protect bluefin in accordance with international treaty obligations, and to seriously consider the effects of allowing increased incidental catch (“bycatch”) and death of reproductive adult bluefin during their peak spawning season on the already struggling bluefin population.” Healthy Gulf v. NMFS, No. 8:20-cv-01104 (D. Md.)."
Atlantic Bluefin Tuna Protection - Pelagic Longline Fishery Management - Environmental & Energy Law Program - Harvard Law School

#97: EASE PERMITTING OF RIGHTS-OF-WAY ACROSS LANDS MANAGED BY THE FISH AND WILDLIFE SERVICE

BACKGROUND

The US Fish and Wildlife Service manages 568 Wildlife Refuges that include over 150 million acres. Current policy of the FWS is to discourage the types of uses embodied in right-of-way requests. In areas in the National Wildlife Refuge System (System), if a right-of-way cannot be certified as compatible with the purposes for which a unit was established, it cannot be granted without authorization by Congress. The Trump Administration has proposed a rule that would streamline and weaken FWS regulations for permitting of rights-of-way (ROWs) for infrastructure by aligning U.S. Fish and Wildlife Service (FWS) processes more closely with those of other Department of the Interior bureaus. This includes use of a standard application form to expedite the processing and review of requests for ROWs. The rule places a priority on economic opportunity and limits the FWS ability to deny the permit.

RESTORATIVE ACTION

If finalized the Biden Administration can begin the process to repeal and promulgate a new rule.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

Still in Proposed Rule Stage

From Reginfo.gov:

Streamlining FWS Permitting of Rights-of-Way
RIN: 1018-BD78
Publication ID: Fall 2020
Timetable shows:
NPRM 11/00/2020
View Rule (reginfo.gov)

Proposed Rule -
Publication Date: 01/19/2021
Agencies: Fish and Wildlife Service
Dates: We will accept comments on this proposed rule that are received or postmarked on or before March 22, 2021. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date.
Comments Close: 03/22/2021
Document Type: Proposed Rule
Document Citation: 86 FR 5120
CFR:
50 CFR 29
Agency/Docket Numbers:
Docket No. FWS-HQ-NWRS-2019-0017
FF09R50000-XXX-FVRS8451900000
RIN: 1018-BD78
Document Number: 2021-00704
Federal Register :: Streamlining U.S. Fish and Wildlife Service Permitting of Rights-of-Way

#98: AMEND PERMITTING REGULATIONS TO INCREASE OFFSHORE WIND DEVELOPMENT

BACKGROUND

The Trump administration BOEM has identified deregulation actions for reforming, streamlining, and clarifying its renewable energy regulations through a notice of rulemaking. This proposed rulemaking suggests reforms that are intended to facilitate offshore renewable energy development without decreasing environmental safeguards. However, details of this reform have not been made publicly available and have not been published. It is believed they are related to sequencing important environmental surveys with the design schedules. It appears that none of these regulation changes will be completed by the end of 2020.

RESTORATIVE ACTION

The Biden administration can reverse the process underway to amend the regulations.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

In Proposed Rule Stage

From Reginfo.gov:

Deregulating and Streamlining Renewable Energy Regulations
RIN: 1010-AE04
Publication ID: Fall 2020
Timetable shows:
NPRM: 11/00/2020
NPRM Comment Period End: 01/00/2021
Final Action: 02/00/2021
Final Action Effective: 03/00/2021
View Rule (reginfo.gov)

#99: ALLOW RELIGIOUS USE OF EAGLE FEATHERS BY NON-NATIVE AMERICANS

BACKGROUND

On July 26, 2018 the USFWS received a petition for rulemaking from Pastor Robert Soto, the lead plaintiff in McAllen Grace Brethren Church v. Jewell, No. 7:07-cv-060 (S.D. Tex. June 3, 2016) and the Becket Fund for Religious Liberty, asking the USFWS to revise its existing rules pertaining to the religious use of federally protected bird feathers and parts for Native Americans. The request was for the USFWS to allow the take and use of federal protected bird feathers and parts by non-native American religious groups. In July of 2019 the Trump administration USFWS issued a proposal for the use of eagle feathers by non-native religious groups. No action has been taken on this proposal to date.

RESTORATIVE ACTION

The Biden administration can deny the petition and halt action on the regulation.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

No updates as of 12/27/20

Proposed rulemaking in Federal Register:

Bald and Golden Eagle Protection Act and Migratory Bird Treaty Act; Religious Use of Feathers
Publication Date: 04/30/2019
Agencies: Fish and Wildlife Service
Dates: Comments must be submitted on or before July 1, 2019.
Comments Close: 07/01/2019
Document Type: Proposed Rule
CFR: 50 CFR chapter undef
Agency/Docket Numbers:
Docket No. FWS-HQ-LE-2018-0078
FF09L00200-FX-LE18110900000
Document Number: 2019-08280
No RIN assigned
Federal Register :: Bald and Golden Eagle Protection Act and Migratory Bird Treaty Act; Religious Use of Feathers

#100: ELIMINATE THE 15-DAY PROTEST PERIOD ON TIMBER SALES FROM BLM PUBLIC LANDS

BACKGROUND

In 1984 the BLM proposed and completed a rule to add a 15-day public-protest process to certain forest management decisions, including advertised timber sales. This measure was expected to “expedite implementation of decisions relating to timber management” and “increase the probability that private businesses dependent upon the Bureau of Land Management’s timber management contracts would be able to accomplish their regularly scheduled activities”. This has been the standard for the public to raise additional concerns or protest of a specific timber sale since 1984. The Trump administration DOI filed a federal register notice in June of 2020 that would eliminate the 15-day protest period on timber sales from BLM public lands and accelerate the timeline for timber sales. The rule is scheduled to be finalized in the fall of 2020.

RESTORATIVE ACTION

If the rule is made final, the Biden administration can announce in the Federal Register the beginning of a new rule process or request Congress to repeal it under the Congressional Review Act.

RESPONSIBLE AGENCY

Department of the Interior

UPDATES

Final rule published in Federal Register:

Forest Management Decision Protest Process and Timber Sale Administration
Publication Date: 12/18/2020
Agencies: Bureau of Land Management
Dates: This final rule is effective on January 19, 2021.
Effective Date: 01/19/2021
Document Type: Rule
Document Citation: 85 FR 82359
CFR:
43 CFR 5000
43 CFR 5400
43 CFR 5420
43 CFR 5440
43 CFR 5450
43 CFR 5460
43 CFR 5470
43 CFR 5500
Agency/Docket Number: LLHQ200000 L63000000 PH0000 21X
RIN: 1004-AE61
Document Number: 2020-27580
Federal Register :: Forest Management Decision Protest Process and Timber Sale Administration