WAGLAC Newsletter May 17th, 2021

Biden Administration Approves Nation’s First Major Offshore Wind Farm

The New York Times

May 12, 2021

"Construction on the nation’s first commercial-scale offshore wind farm is expected to begin this summer, after the Biden administration gave final approval Tuesday to a project it hopes will herald a new era of wind energy across the United States.

The Vineyard Wind project calls for up to 84 turbines to be installed in the Atlantic Ocean about 12 nautical miles off the coast of Martha’s Vineyard, Mass. Together, they could generate about 800 megawatts of electricity, enough to power about 400,000 homes.

The project would dwarf the scale of the country’s two existing wind farms, off the coasts of Virginia and Rhode Island. Together, they produce just 42 megawatts of electricity."

EPA Revokes Trump-Era Barrier To Climate Rules

E&E News

May 13, 2021

"The Biden administration has removed a potentially formidable barrier to its plans for addressing climate change and other goals by repealing a first-ever set of requirements for forecasting the expected gains and costs of future Clean Air Act regulations.

Those requirements, imposed by EPA last December during then-President Trump's final weeks in office, "were inadvisable, not needed and untethered" to the act, the agency said in an interim final rule released this morning.

The decision comes with an asterisk as the agency will collect public feedback for 30 days after its publication in tomorrow's Federal Register and hold a public hearing if requested. The odds of a reversal, however, appear remote."

Final Rule

As West Faces Drought, Attorney General Bonta Calls On Army Corps To Respect California's Authority To Protect State Waters

State of California Department of Justice

May 12, 2021

"California Attorney General Rob Bonta joined a coalition of six states and the California State Water Resources Control Board in calling on the U.S. Army Corps of Engineers (Army Corps) to respect state authority under Section 401 of the Clean Water Act to approve, impose conditions on, or deny certification for federally permitted projects that may result in discharges into waters of the United States. In their letter, the attorneys general expressed concern over the Army Corps’ recent decisions excluding state water quality certification conditions or finding that states have waived their authority to review and certify Nationwide Permits proposed for reissuance. As a result, states, including California, will be forced to adopt individual water quality certifications for dischargers, to the detriment of water quality and at significant cost to the states and their taxpayers."

EPA Relaunches Climate Indicators Website Showing How Climate Change Is Impacting Peoples’ Health And Environment

U.S. Environmental Protection Agency

May 12, 2021

"For the first time in four years, EPA is relaunching its Climate Change Indicators in the United States website for the public. This comprehensive resource presents compelling and clear evidence of changes to our climate reflected in rising temperatures, ocean acidity, sea level rise, river flooding, droughts, heat waves, and wildfires, among other indicators. The site also features an enhanced user experience with interactive data-exploration tools offering a closer look at graphs, maps, and figures, along with an overview of the importance of indicators and how climate change can affect human health and the environment."

Hardeman v. Monsanto Co.—Ninth Circuit Holds That FIFRA Did Not Preempt California Common-Law Failure-To Warn Claim

Clay R. Smith

Chief Editor, AILD

CWAG & AG Alliance

May 15, 2021

"The pesticide Roundup contains the active ingredient of glyphosate. Substantial scientific controversy exists over whether glyphosate causes cancer in humans. Beginning in 1974, EPA has registered products containing glyphosate as an active ingredient and “repeatedly approved the use of glyphosate as a pesticide, each time concluding that it is not likely to be carcinogenic to humans.” This determination is not shared by all researchers, including the International Agency for Research on Cancer that issued a 2017 report classifying glyphosate as an agent “‘probably carcinogenic to humans’ based on glyphosate’s ‘limited evidence’ of cancer in humans and ‘sufficient evidence’ of cancer in experimental animals.” Shortly thereafter, the California Office of Environmental Health Hazard Assessment categorized glyphosate pursuant to state Proposition 65 (1986) “as a chemical known to the state to cause cancer” and thereby “triggered a state law requirement to attach a warning label to glyphosate products.” In 2019, and five months after the jury verdict in this case, an EPA official issued a letter to glyphosate-containing pesticide registrants stating that “EPA ‘considers the Proposition 65 warning language’ that glyphosate is carcinogenic ‘to constitute a false and misleading statement’ that violates FIFRA’s prohibition against ‘misbranded’ substances” and “instructing registrants to remove such warning statements from labels of glyphosate-based pesticides.” The letter nevertheless “was not the product of any formal proceeding, was not published in the Federal Register, did not cite any new scientific findings, and took no position on whether Roundup causes cancer.”

Opinon

OIL AND GAS

EPA Announces Public Listening Sessions And Trainings On Upcoming Oil And Natural Gas Methane Rule

U.S. Environmental Protection Agency

May 14, 2021

"The U.S. Environmental Protection Agency (EPA) is taking the first step to develop a proposed rule to reduce methane and other harmful pollutants from new and existing sources in the oil and natural gas industry, beginning with a broad public outreach effort to gather community and stakeholder input. These activities include holding training sessions on the rule making process and how to participate in it, convening listening sessions for stakeholders, and opening a public docket for pre-proposal comments.

The oil and natural gas industry is the largest industrial source of U.S. emissions of methane, a potent greenhouse gas, and its facilities and operations also emit smog-forming volatile organic compounds and toxic air pollutants such as benzene. Today’s actions are in response to President Biden’s Executive Order 13990, and are key steps toward EPA’s commitment to deliver public health protections from methane pollution for communities across America."

WATER

After ‘Water Wars’ Ruling, A Revived Push For States To Share

WABE

May 11, 2021

"Florida, Georgia and Alabama have been arguing for decades over water. Florida and Alabama accuse Georgia of using too much of it.

Even now that a major case in the 30-year fight ended earlier this year, with the U.S. Supreme Court siding with Georgia, the disagreements are far from resolved.

At stake are delicate habitats in Florida and a once-thriving oyster fishery, jobs and power generation in Alabama, and water supply for south Georgia farmers as well as for most of metro Atlanta.

While state and federal officials have not been able to come to an agreement over how to manage their shared river system, six years ago, a group representing industry, farmers, residents and environmentalists in all three states released a plan they say showed a way forward, with a set of recommendations they say can help ease the problems, without resorting to the courts.”

Biden Backs Disputed Trump Contract In Court

E&E News

May 13, 2021

'The Biden administration will defend controversial water delivery contracts to California farmers issued in the Trump era, according to a court filing yesterday, rejecting pleas from a tribe and environmentalists to rescind them.

At issue in the complicated case is an effort to convert periodic water delivery contracts from the Federal Central Valley Project, which ships water from California's wet North to farms in its drier South, to permanent agreements.

The Hoopa Valley Tribe of Northern California and environmentalists sued, claiming the conversions violate environmental provisions of the Central Valley Project Improvement Act."

How ‘Sustainable’ Is California’s Groundwater Sustainability Act?

High Country News

May 10, 2021

"Passed in 2014, SGMA is a complicated law that addresses what appears to be a straightforward problem: California doesn’t have enough groundwater. For decades, water users have taken out more than they put back in, with little statewide oversight. SGMA changes all that by drawing boundaries around the state’s groundwater basins (some, but not all, had been already defined and locally regulated) and requiring each one to create a local regulatory body and its own sustainability plan. These agencies must work with myriad stakeholders — public water systems, Indigenous nations, domestic and municipal well users and historically disadvantaged communities, as well as the ecosystems themselves."

The Gila River Indian Community Innovates For A Drought-Ridden Future

High Country News

May 13, 2021

"The revival of this small segment of the 649-mile (1045-kilometer) Gila River, which has served the tribes that make up the Gila River Indian Community — the Akimel O'odham (Pima) and the Pee-Posh (Maricopa) — for roughly 2,000 years, was an added benefit of a grassroots infrastructure overhaul, known as “managed aquifer recharge,” or MAR, which aimed to restore the local groundwater basin. The MAR project has not only secured a water supply for local agriculture, but it has also generated a stable source of income and strengthened the community’s ties to tradition.

Hauter credits Lewis and his colleagues for ensuring that community members have long-term access to their own resources while helping solve broader water supply problems in the region through innovative partnerships and exchanges with neighbors."

Colorado Is Examining Water Speculation, And Finding It’s ‘All The Problems’ In One

PostIndependent

May 9, 2021

"Melting snow and flowing irrigation ditches mean spring has finally arrived at the base of Grand Mesa in western Colorado.

Harts Basin Ranch, a 3,400-acre expanse of hayfields and pasture just south of Cedaredge, in Delta County, is coming back to life with the return of water.

Twelve hundred of the ranch’s acres are irrigated with water from Alfalfa Ditch, diverted from Surface Creek, which flows down the south slopes of the Grand Mesa. The ranch has the No. 1 priority water right — meaning the oldest, which comes with the ability to use the creek’s water first — dating to 1881.

The conversation around water speculation has been heating up in Colorado in recent months. At the direction of state lawmakers, a work group has been meeting regularly to explore ways to strengthen the state’s anti-speculation law. The topic frequently comes up at meetings of Western Slope water managers: the Colorado River Water Conservation District, basin roundtables and boards of county commissioners."

FISH AND WILDLIFE

Friends of Animals v. Haaland

Justia US Law

May 17, 2021

"The Ninth Circuit reversed the district court's grant of summary judgment for the FWS in an action brought by Friends of Animals, challenging FWS's rule, 50 C.F.R. 424.14(b), which required that affected states receive 30-day notice of an intent to file a petition to list an endangered species. Friends alleges that the FWS used the "pre-file notice rule" to improperly reject Friends' petition to list the Pryor Mountain wild horse as a threatened or endangered distinct population segment, and argues that the rule revision violates the Endangered Species Act's (ESA) requirements for review of petitions and is inconsistent with the Administrative Procedure Act (APA).

The panel concluded that the pre-file notice rule is inconsistent with the statutory scheme of the ESA and thus does not survive the second step of the Chevron test. The panel explained that the FWS used the pre-file notice rule to create a procedural hurdle to petitioners that does not comport with the ESA. In this case, the FWS used the pre-file notice rule to consider a petition that was properly submitted, complied with the substantive requirements in all other respects, and was otherwise entitled to a 90-day finding, while relying on an unreasonable justification that does not accord with the aims of the ESA. Therefore, FWS's denial of the petition was arbitrary and in excess of its statutory jurisdiction. Accordingly, the court remanded to the district court to enter summary judgment in favor of Friends."

Opinion

INDIAN LAW DESKBOOK

Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision.

Please reach out to Clay for questions regarding obtaining a copy of the American Indian Law Deskbook.

Indian Law Case Summaries

All summaries are posted in CWAG's google docs account, accessible through the link below. Should you have any issues with the links, contact Andrea Friedman with any questions.

United States v. Still, ___ F. Supp. 3d ___, 2021 WL 1914217 (N.D. Okl. May 12, 2021): Defendant’s motion to dismiss a federal indictment for failure to register as a sex offender given the subsequent vacatur of his state court rape conviction on the basis of McGirt v. Oklahoma was denied.

Loonsfoot v. Brogan, ___ F. Supp. 3d ___, 2021 WL 1940400 (W.D. Mich. May 14, 2021): Petition for writ of habeas corpus under 25 U.S.C. § 1303 by two tribal members was dismissed for failure to exhaust tribal court remedies.

Stand Up for California! v. State, ___ Cal. Rptr. 3d ___, 2021 WL 193336 (Ct. App. 5th Dist. May 13, 2021): Governor’s inherent, but defeasible, authority to concur in a decision by the Secretary of the Interior under Section 20 of the Indian Gaming Regulatory Act to take land into trust for gaming purposes was withdrawn implicitly by a statewide referendum vote disapproving legislative ratification of a class III gaming compact that authorized gaming on such land.