Coal Bed Methane Development Hurts Sage Grouse

Studies formally released this week by Dr. David Naugle of the University of Montana indicate that sage grouse populations are suffering drastically from Coal Bed Methane Development in the Powder River Basin of Wyoming, with populations in disturbed areas falling 86% from 2000 to 2005.



This is probably no surprise, except to the BLM, who says it will "take the information into account." BLM's issuance of thousands of coal-bed methane leases, in accordance with the administration's energy policy but maybe not the laws BLM is supposed to follow (FLPMA anyone?), has helped lead the sage grouse down this road.

The state of Wyoming recently held a sage grouse summit, called for by Governor Freudenthal and attended by members of industry, government, landowners, and environmental groups. Many in the state want to avoid listing of the grouse as an endangered species, because of the massive ramifications of such an action. As such, the state is currently trying to finagle industry and BLM into taking preemptive measures to protect the sage grouse. These measures have not yet worked, and it is now time to get serious about protection, as Naugle's study shows.

AP Story here.


CBM Development in the Powder River Basin

Schwarzenegger Names Environmental Lawyer (and Former Chair of ARB) as New Head of ARB

On Tuesday, Mary Nichols was named chair of the California Air Resources Board. She formerly held the same position under Gov. Jerry Brown and also served as resources secretary for Gov. Gray Davis. Nichols' designation comes in the wake of a week in which the previous chair Robert Sawyer was fired and Executive Officer Catherine Witherspoon resigned, both apparently in response to the Governator's meddling attempts to soften the implementation of AB 32, California's landmark greenhouse gas reduction laws.



SF Chron coverage of the appointment here.

More about the business leading to the Sawyer's firing and Witherspoon's resignation here.

Supreme Court Hates Endangered Species (Well, 5 Justices Do at Least)

The opinion in National Association of Home Builders v. Defenders of Wildlife came down from on high last week, and it was not really good news. The basic holding is something like EPA cannot deny Clean Water Act 402 state certification if the nine requirements in the statute are met, even if such approval may violate the Endangered Species Act's section 7 "no jeopardy" requirement. Put another way: section 7 consultation is not required for 402 certification, nor, in fact, for any mandatory federal action. You can read the full opinion for yourself here.

It is not a good ruling. And if you believe Steven dissent (which I do), it's pretty flawed reasoning. Alito framed the issue in a skewed way as whether section 7 imposes a 10th criterion for 402 certification, and it goes downhill from there, resting mostly on tired textualist drivel like the presumption against implied repeals. As Stevens points out, there's also a crazy reading of the regulations implementing section 7. The regulations state that section 7 consultation applies to discretionary federal actions, but Alito casually slipped an only before discretionary, and that was pretty much the end of it. Read the dissent for a better description of how wrong this is.

My favorite part, though, is Ali's disapproving statement (after noting "[s]ection 7(a)(2) by its terms applies to 'any action authorized, funded, or carried out by' a federal agency") that, "[r]eading [section 7(a)(2) broadly would thus partially override every federal statute mandating agency action by subjecting such action to the further condition that it pose no jeopardy to endangered species." Hmm...YEAH! That's the point!!!

I just don't see how they could hate something as cute as the cactus ferruginous pygmy owl.