Category: Environment (Page 1 of 2)

Donald Trump at rally

Groups Challenge Trump’s Terminator two-fer order

NRDC, The Communication Workers of America, and Public Citizen just filed a lawsuit against Trump’s infamous “two-fer” rule. This is the rule I’ve designated the Terminator Rule.

From the lawsuit:

To repeal two regulations for the purpose of adopting one new one, based solely on a directive to impose zero net costs and without any consideration of benefits, is arbitrary, capricious, an abuse of discretion, and not in accordance with law, for at least three reasons.

First, no governing statute authorizes any agency to withhold a regulation intended to address identified harms to public safety, health, or other statutory objectives on the basis of an arbitrary upper limit on total costs (for fiscal year 2017, a limit of $0) that regulations may impose on regulated entities or the economy. Second, the Executive Order forces agencies to repeal regulations that they have already determined, through notice-and-comment rulemaking, advance the purposes of the underlying statutes, and forces the agencies to do so for the sole purpose of eliminating costs that the underlying statutes do not direct be eliminated. Third, no governing statute authorizes an agency to base its actions on a decisionmaking criterion of zero net cost across multiple regulations.

The Terminator rule is nonsensical in the extreme and violates all administrative procedure and law when it comes to forming regulations and rules. To instruct agencies to only include costs, not benefits, virtually cripples the federal government.

I have to wonder at this time if Trump even has access to lawyers. If so, where did they get their law degrees? Trump University?

I’ll be following this case on PACER.

Photo by Gage Skidmore CC BY-SA 2.0

Dakota pipeline protest

The Army Corps Decision on Dakota has serious ramifications

The Army Corps of Engineers announced Tuesday it would approve development of the last section of the Dakota pipeline. In a cryptic letter, the Corps announced it was terminating the Environmental Impact Statement process in the Federal Register. The reason? Trump told them to do so.

As former State Department lawyer Keith Benes said to the Washington Post, the Corps can’t just drop the EIS process for arbitrary reasons. And Trump demanding they do is an arbitrary reason.

Keith Benes, a former State Department lawyer who helped oversee pipeline permitting decisions under the Obama administration and now works as an environmental consultant, said in an interview that opponents could mount a strong legal challenge because the only justification the Army gave for terminating its environmental review was the president’s Jan. 24 directive. The agency had been seeking public input on whether to consider an alternate pipeline route, and the comment period was due to close Feb. 20.

“Supreme Court precedent is really clear that agencies can change their minds about policies, but they need to provide a reason,” Benes said, noting that the justices most recently upheld this position in the 2009 case FCC v. Fox Television Stations, Inc. “The president telling you to change your mind is not enough of a justification for changing your factual finding.”

The Corps decision was sudden and unexpected. The Corps had already filed a notice to the Federal Register asking for comments about the EIS scope, the first step in the process. Until this week, there was absolutely no indication that the Corps was planning on terminating the EIS.

Trump’s administration has completely disregarded environmental law, not to mention tribal rights and treaty in this decision. Yes, the decision can and will be successfully challenged in court. But there’s more at risk than our water with this decision.

All Federal Agencies are bound to follow laws in their actions. One of the laws is the National Environmental Policy Act or NEPA. Though agencies can follow different routes within the NEPA framework, they can’t work outside of it. Not unless expressly given permission to with other laws. There is no other law at play with the Corps Dakota Pipeline decision.

The Army Corps not only dropkicked NEPA to the curb, they pissed on it in passing. And they did so specifically because of a demand from the Trump administration. The Trump administration action demonstrates either a profound ignorance of a law that has been in existence for decades, or that the administration considers itself not bound by the law. I suspect the latter.

The Executive Branch of the government’s primary duty is to uphold the laws of the United States. Trump cannot just ignore the laws because they don’t suit him. To do so is to introduce a level of chaos we have never seen before in our history.

Photo courtesy Fibonacci Blue CC BY 2.0

Dakota pipeline protest

Trump Signs Executive Orders Reversing Dakota and Keystone Pipeline Decisions

Trump has signed executive orders reversing President Obama’s administration’s decisions on both the Keystone and the Dakota pipelines.

The Dakota pipeline is currently under review by the Army Corps of Engineers. The Corps is preparing an Environmental Impact Statement on the route and alternatives. Trump can’t just upend this effort with an executive order—not without Earth Justice or other environmental organization easily being able to get an injunction against the order in court. I expect a court challenge against this exeutive order within a day

Unfortunately, Obama’s Keystone Pipeline decision could be more easily undone. The original State Department review of the Pipeline didn’t find it to be an environmental risk. Later, State found that the Pipeline would run counter to the US efforts to combat climate challenge, but this finding was based on cheap oil. Once the price of oil rises, to $65.00 a barrel or more, than this decision would no longer be considered viable. We could challenge a Keystone decision in court, but have less chance of success.

The claims about jobs associated with the pipeline are exaggerated. Yes, there will be construction jobs to build the pipelines, but, ironically enough, many of those jobs will most likely be filled by undocumented workers from Mexico. Construction is the second largest employer of undocumented workers in the US.

Once the pipelines are built, though, the number of jobs provided is tiny, measuring in the 100s, if that.

US energy costs won’t decrease, either, especially with the Keystone pipeline. Much of the refined gas, diesel, and jet fuel is likely to be exported out of the country.

What we will see are increased environmental costs. Companies are responsible for oil spills, but it’s uncanny how all too often, we taxpayers end up footing the bill for oil clean up. In addition, both pipelines are a major risk to drinking water, as well as vital aquifers for agricultural irrigation. Today, the Canadian government noted that one pipeline spilled 200,000 liters of oil in aboriginal land, following another major spill that shut off the supply of water to two major cities.

We’ll absorb the environmental damage, including the impact of the refining, yet only the oil companies will truly benefit.

Photo courtesy Fibonacci Blue CC BY 2.0

Gray wolf at rest

The Killing of the Profanity Peak Wolf Pack

By the time you read this, the Profanity Peak wolf pack in Washington State will be no more.

At last count, six wolves of the 11 member pack have been destroyed. All that remains is one adult and four cubs. And if the last remaining adult is killed, the cubs will most likely starve to death.

What’s left of the pack will either survive long enough to join another pack , or they won’t. Regardless, the Profanity Peak wolf pack is gone.

Washington State Proud

Washington State prides itself on not being the same as its neighbors to the east and north. It doesn’t immediately issue a shoot-to-kill order for endangered wolves when one head of cattle is killed or injured. No, Washington State has a Wolf Advisory Board. On this Board are wolf conservation groups, like Defenders of Wildlife, Humane Society of the United States, Conservation Northwest, and Wolf Haven International.

This Board has helped Washington State develop a protocol for when wolves are killed; a set of non-lethal actions that must be followed before the kill order is given.

The reality is, though, the wolves in the Profanity Peak pack are being killed. Just like the wolves are being killed in Idaho, Wyoming, Alaska, and other states. But we’re not supposed to feel outrage at such an action because Washington State has a Wolf Advisory Board, and it has guidelines.

The Animal Welfare Group Statement

Four of the animal welfare organizations on the Advisory Board issued a statement about the Profanity Peak wolves:

The authorized removal of wolves in the Profanity Peak wolf pack in northeast Washington is deeply regrettable. The Washington Department of Fish and Wildlife (WDFW) is however following the protocol developed by Washington State’s Wolf Advisory Group (WAG) – a diverse group of stakeholders. The WAG and WDFW have committed to evaluate how the protocol worked on the ground this season in order to improve it for next year. In addition, we intend to conduct a thorough and open-minded assessment of the issues raised for all stakeholders involved.

We remain steadfast that our important goals remain the long-term recovery and public acceptance of wolves in our state alongside thriving rural communities. In the meantime, we ask our community and the citizens of Washington State and beyond to engage in respectful and civil dialogue as we work through these challenging events. We believe that ultimately we can create conditions where everyone’s values are respected and the needs of wildlife, wildlife advocates, and rural communities are met.

The organizations don’t want us to be outraged. They want us to accept that, “Eh, these things happen.” They want us to treat the destruction of an entire pack of endangered wolves, as if it’s just another Sunday, and here’s a cookie. We’re to engage in a respectful and civil dialogue.

An entire pack of endangered wolves is being killed, and they want us to be respectful and civil?

OK, then. Let’s engage in a respectful and civil dialogue.

Grazing Permits and National Forests

The cattle are on public land in the Colville National Forest. They are on this land because the rancher has a grazing permit. His cattle join with approximately 32,000 or so other privately held cattle  allowed to graze on public land in Washington State. Graze at a taxpayer-subsidized rate—grazing permit holders don’t pay full value for the true cost of grazing on public land.

The rancher is Len McIver, of the Diamond M Ranch. He’s a multi-generation rancher who uses grazing permits to raise his cattle. You might say, since grazing permits are subsidized, he’s the fourth generation rancher benefiting from taxpayer support. A common term used for this type of rancher is “welfare rancher”.

Oh. I’m sorry. Was that not respectful? I’ll try to do better.

The Diamond M Ranch Connection

This isn’t the first time Len McIrvin has been involved in the destruction of a wolf pack. In 2012, it was his cattle that led to the decision to kill off the Wedge wolf pack, in the same area as the profanity Peak pack. In a 2012 interview, his son, Bill McIrvin, claimed that wolves are the worst predator:

Bill tells me that the first confirmed wolf kill on the Diamond M was in 2007, and probably from the same pack accused of livestock depredation now, the Wedge pack. When I ask about other predators, Bill says lots of predators go after their cattle, including black bear and cougar, although he is unable to tell me how many cattle succumb to these animals yearly. But wolves, he says, are the worse. Why? I ask. Because they are killing but not eating–for fun, not merely for food, he responds.

Wolves kill for fun. It’s an odd thing, but of all the reasons given why wolves kill, not one wolf expert has stated that wolves kill for fun.

One could say that Bill McIrvin is a lying sack of cow poop, if one wasn’t attempting to remain civil.

The Anti-Wolf Message

What’s interesting about Bill and Len McIrvin is how dedicated they’ve been about spreading the message that wolves are killers, wolves and cattle don’t mix, and how all wolves need to be killed. I contrast this with the assurances we’ve been given that any and all non-lethal measures were taken, first, by these same individuals before the decision was made to kill both Wedge pack in 20012, and the Profanity Peak pack this month.

I hope I won’t seem disrespectful if I happen to believe that two people passionate about removing wolves won’t do  everything in their power to ensure wolves can remain.

Evidently, the McIrvins do support some wolves. I’m not sure what the definition of some is. I mean, it isn’t as if people are tripping over the wolves on a daily basis in Washington state: there are less than 90 wolves now, and it’s a big state. Decrease the number of wolves much more, and you don’t have any wolves.

Contrary to the Washington Department of Fish & Wildlife diagram, wolf packs in Washington aren’t growing. In fact, they’ve shrunk by two. And I suspect the Ranchers McIrvin believe this is still too many.

graph of wolf packs in Washington

I also suspect that some wolves the McIrvins want, is more about geography than numbers. Some wolves are OK. Those wolves over there (and not here) are some wolves. Those wolves are OK.

Let’s Not Overly Impact the Ranchers

In 2012, Mitch Friedman from Conservation Northwest, discussed the McIrvin’s motives and processes.

Mitch Friedman, Conservation Northwest executive director, said he remains unconvinced about McIrvin’s efforts to manage his herd to reduce conflicts with wolves. He does not agree that there are no options for better herd management.

“We want to see more clarity, certainty, that wolves are responsible for these past incidences,” he said. “We’re aware there are experts raising questions and the field biologists are themselves not convinced that all, or perhaps even any, of these incidents are conclusively wolves.”

Friedman believes the state is under pressure and needs to take more time. He accused McIrvin of alerting the media first, then the local sheriff’s office, then the wildlife department while reaching out to county and state legislators to turn up the heat.

“Generally, when wolves are in the neighborhood, everything gets blamed on them,” he said. “But when the evidence is in, it’s a small portion of incidents that actually ends up involving wolves.”

If it’s not a wolf, Friedman isn’t certain what would be the cause. While he admitted to hemorrhaging on the rear flanks and groin in one of the recent calf attacks, there were no puncture wounds in the hide.

“We want to work collaboratively, we want to make this work so ranchers are not overly impacted by the presence of wolves,” he said.

How nice. Let’s ensure that the ranchers aren’t inconvenienced. That should be top priority for an animal welfare group.

By the way, this is the same Mitch Friedman who now exhorts us all to be respectful and civil about the killing of the Profanity Peak pack.

About Those Non-Lethal Measures

A couple of days after the decision to kill the Profanity Peak wolf pack was made, Robert Wielgus, of the Large Carnivore Lab at Washington State University, provided some surprising revelations.

“This livestock operator elected to put his livestock directly on top of their den site; we have pictures of cows swamping it, I just want people to know,” Wielgus said in an interview Thursday.

Evidently, the McIrvins deliberately introduced cattle directly into the den area for the Profanity Peak wolf pack.

The thing with cattle is they drive out most other animals in the area where they graze—they are inherently destructive of their surroundings. They decimate the plant life, damage the trees, churn up and damage the soil, and they muddy creeks and streams, as well as damage stream banks. Animals native to the land have no other choice but to leave.

Cause and effect: If all other prey animals are driven out, a wolf pack has little recourse but to hunt what animals remain. Though of course, they only do so for fun…not because they’re desperately trying to survive, and feed their young.

The Judas Wolves

The decision was made to kill the entire Profanity Peak wolf pack. All 6 adults and 5 cubs.

You know, wolves are hard to hunt. They’re intelligent and cunning. They know how to avoid hunters, even hunters using high-powered rifles from helicopters.

Helicopter and shooter

But the Profanity Peak pack was operating under a handicap: members of the pack were equipped with radio collars, allowing them to be tracked.

Such wolves are called “Judas wolves”, because their presence is a threat to the entire pack. I don’t know what’s more disturbing: that we allow hunting of a species that’s so rare, we actually equip them with tracking collars that cost thousands of dollars; or that wolves with such collars have been hunted so much, we actually have a term for them.

Thanks to the radio collars, the 11 member Profanity Peak pack is down to five remaining members. And the hunt still continues.

No, Washington State is Not “Better”

The wolf welfare organizations mentioned earlier have been receiving a great deal of heat in their Facebook posts related to the Profanity Peak pack.

If HSUS had a post with the Profanity Peak statement, it’s since removed it. But a post still remains in Conservation Northwest, Defenders of Wildlife, and Wolf Haven International.  In one comment to their post, Defenders of Wildlife stated:

Washington state has made it a requirement that ranchers use multiple nonlethal methods to deter wolves before the state will even consider a lethal option. Once a depredation has occurred, the state also steps in to help ramp up the nonlethal measures, with the goal of exhausting every possible nonlethal option. It is certainly not a perfect plan, but far better than the “shoot first” approach some other states have. As a member of the Wolf Advisory Group, we hope to continue to help revise the state’s protocols to better protect wolves. (emph. added)

The consensus among these groups is that, while its sad that the Profanity Peak pack is being killed, Washington State is still better than other states that have no advisory board. Animal welfare and conservation groups have a seat at the table. They have a hand in the decisions. This is better.

It’s an intellectual response to an emotional event…and it’s dead wrong.

We should be reacting emotionally to this event. We should be outraged. All those who support wolves should be speaking with one voice.

This isn’t a few animals killed among many: this is the deliberate extermination of 11 members of a group of 90, in the entire state. The number of wolves in Washington is so low, claiming they’ve recovered borders on the ludicrous. The State pontificates about “recovery” of the wolves, and how they’re no longer endangered, but we’re only talking about 90 wolves.

No. Now we’re only talking about 80. Well, unless those four cubs survive, which is doubtful.

Washington State allows 32,000 heads of cattle to graze on public land, and it won’t cut even a small break for the 90 wolves currently in its borders. It isn’t “better” than Idaho or Wyoming. Its process isn’t superior, or more humane. The only difference between the states, is optics.

Never Lose the Outrage

I had a strong scorched earth initial reaction to all of the animal welfare groups that issued such a passive, capitulating statement about the Profanity Peak wolves. I think there were some feelings of sowing salt into the ground at their feet, too.

I am calm enough today to know that ripping these organizations to shreds, while momentarily satisfying, doesn’t really address the problem. The problem is that our government doesn’t value us.

They value ranchers. They value farmers. They value hunters. They value people with guns. But they don’t value people who care about the animals just because the animals exist. In the great scheme of things, we’re expendable.  And so are the wolves.

Six cattle were supposedly killed and that’s enough to wipe out an entire wolf pack. By all that’s sane, this isn’t equitable, balanced, decent, humane, or right. Washington State, for all of its high mindedness, is no better than Idaho or Alaska or any other state that advocates killing off wolves so ranchers, hunters, and farmers aren’t inconvenienced. Let’s lose this feel-good facade.

What also wasn’t right was the statement the Humane Society of the US, Conservation Northwest, Wolf Haven International, and Defenders of Wildlife made. They were profoundly wrong to urge restraint. They have allowed their participation in the Advisory Board to file down their teeth, blunt their claws, and to remove the only weapons they have to fight for real change.

Membership on the Board or not, they should have howled, as loud as the wolves howled before death. They should have said to all of us, “Don’t accept this! Fight this!”

They should have embraced outrage, instead of trying to damp it down. If they can’t be outraged and serve on the Board, then they have no place on this board. Or they have no place in the animal welfare movement.

I’m not ready to abandon the groups, but I’m not ready to embrace them, either. They screwed up.

Don’t accept this. Get in people’s faces. Be mad. Be vocal. Be loud. And if being loud means to hell with respectful and civil discourse, so be it.

Photos, public domain by US Fish & Wildlife

 

 

 

Picture of Andy Johnson's dam

Andy Johnson EPA Consent Decree

Previous coverage here and here

Andy Johnson created a “stockpond” by building a dam on a creek that is covered under the Clean Water Act. The EPA issued a violation to him for not getting a permit for unauthorized dumping in said creek. The solution outlined in the violation was to work with the agency to remediate the damage. If he didn’t comply, he could face significant fines.

Rather than work with the EPA, Johnson sued, to the accompaniment of press conferences, news storiesCongressional hearings, op-ed pieces by Paul Ryan, and videos featuring a plethora of American flags and small children.

March 22, lawyers with the US Department of Justice and representing Andy Johnson filed a consent decree in court to resolve the court case of Andy Johnson V EPA. The consent decree outlines steps that Johnson must take in order to settle the matter. These are:

  1. Plant dormant willows partially around the pond he created, and ensure they live until September of 2017.
  2. The site must be monitored for invasive species until September of 2017.
  3. Fence the north side of the pond to keep livestock away from the planted areas. The fence must be maintained until September 2017.

That’s it.

I obtained the Administrative Records for this case from the EPA. These are records the EPA maintains for any violation or possible violation, which are then submitted to the courts if the violation results in a court case. In the Administrative Records we discover:

  • That a neighbor warned Johnson he needed a permit to build the dam he was building. He was warned before he started, and again during the work. The same neighbor also asked to be notified when Johnson was informed of the complaint, as the neighbor wanted to notify the Sheriff’s office ahead of time because of other unspecified actions Johnson had taken against the neighbor.
  • That same neighbor, or neighbors, had significant problems with the work, detailed in photos showing potential points of erosion and problems with shared driveways, and silt contamination of surrounding areas.
  • Wyoming gave Johnson a stockpond permit, even though the State knew Johnson was really building a fish pond, “with the understanding that the local official could use it”. Which “local offical”? This isn’t given, but if I lived in that area, I sure would like to know which “local official”.
  • Regardless of the “local official” who would also benefit from the pond, the general feeling in the  local community was that they did not like the pond and felt “if this type of project is allowed to happen“, it would set a precedent that would then be followed by others in the area.
  • Johnson had one single horse, which is sufficient for Wyoming to give a stockpond permit, but the neighbor never saw the horse actually use the “stockpond”.
  • The construction of the simple “stockpond” required a heavy construction plow, and what looked like a whole lot of rock and concrete.
  • The resulting pond easily exceeded the State mandated 20 acre feet as maximum size for a “stockpond”.
  • The “stockpond” is an “ongoing source of irritation between neighbors“. Yeah, we caught that.
  • The County was concerned about the “stockpond”: that it was misrepresented, that it would cause problems with neighbors and an adjacent county road, and that the public wasn’t given an opportunity to comment. “It would appear from the permit that this reservoir has been constructed under the pretense of providing waters to livestock or wildlife although this is an eight (8) acre, residential subdivision.”
  • It’s necessary to maintain the same flow of water for downstream fisheries, even in low-flow times. A dam with a spillway can adversely impact this flow.
  • Though the dam doesn’t look it might blow and take out the roadways (knock on wood) it did puzzle the State engineers as to why it didn’t match the permit request to the State.
  • Andy feels entitled

Well, then. Seems there is much more to this “stockpond” than Mr. Paul Ryan mentioned in his opinion piece, or reflected in the video with all those American flags.

I’m disappointed in the consent decree. Johnson’s actions were an egregious violation of the CWA. I have received documents from the Justice Department in response to a FOIA about the communications leading to this decree, and will post an update.

 

 

 

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