[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
EXAMINING SYSTEMIC GOVERNMENT OVERREACH AT CEQ
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OVERSIGHT HEARING
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
OF THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
Thursday, September 14, 2023
__________
Serial No. 118-59
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
53-402 PDF WASHINGTON : 2024
COMMITTEE ON NATURAL RESOURCES
BRUCE WESTERMAN, AR, Chairman
DOUG LAMBORN, CO, Vice Chairman
RAUL M. GRIJALVA, AZ, Ranking Member
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan, CNMI
Tom McClintock, CA Jared Huffman, CA
Paul Gosar, AZ Ruben Gallego, AZ
Garret Graves, LA Joe Neguse, CO
Aumua Amata C. Radewagen, AS Mike Levin, CA
Doug LaMalfa, CA Katie Porter, CA
Daniel Webster, FL Teresa Leger Fernandez, NM
Jenniffer Gonzalez-Colon, PR Melanie A. Stansbury, NM
Russ Fulcher, ID Mary Sattler Peltola, AK
Pete Stauber, MN Alexandria Ocasio-Cortez, NY
John R. Curtis, UT Kevin Mullin, CA
Tom Tiffany, WI Val T. Hoyle, OR
Jerry Carl, AL Sydney Kamlager-Dove, CA
Matt Rosendale, MT Seth Magaziner, RI
Lauren Boebert, CO Nydia M. Velazquez, NY
Cliff Bentz, OR Ed Case, HI
Jen Kiggans, VA Debbie Dingell, MI
Jim Moylan, GU Susie Lee, NV
Wesley P. Hunt, TX
Mike Collins, GA
Anna Paulina Luna, FL
John Duarte, CA
Harriet M. Hageman, WY
Vivian Moeglein, Staff Director
Tom Connally, Chief Counsel
Lora Snyder, Democratic Staff Director
http://naturalresources.house.gov
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SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
PAUL GOSAR, AZ, Chairman
MIKE COLLINS, GA, Vice Chair
MELANIE A. STANSBURY, NM, Ranking Member
Matt Rosendale, MT Ed Case, HI
Wesley P. Hunt, TX Ruben Gallego, AZ
Mike Collins, GA Susie Lee, NV
Anna Paulina Luna, FL Raul M. Grijalva, AZ, ex officio
Bruce Westerman, AR, ex officio
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CONTENTS
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Page
Hearing held on Thursday, September 14, 2023..................... 1
Statement of Members:
Gosar, Hon. Paul, a Representative in Congress from the State
of Arizona................................................. 1
Stansbury, Hon. Melanie A., a Representative in Congress from
the State of New Mexico.................................... 3
Westerman, Hon. Bruce, a Representative in Congress from the
State of Arkansas.......................................... 4
Statement of Witnesses:
Loyola, Mario, Research Assistant Professor, Environmental
Law, Florida International University, Miami, Florida...... 6
Prepared statement of.................................... 8
Heaps, Jill Witkowski, Senior Attorney, Earthjustice, New
York, New York............................................. 13
Prepared statement of.................................... 15
Questions submitted for the record....................... 21
Simms, Scott, CEO and Executive Director, Public Power
Council, Portland, Oregon.................................. 26
Prepared statement of.................................... 28
Lewis, Marlo, Senior Fellow, Competitive Enterprise
Institute, Washington, DC.................................. 31
Prepared statement of.................................... 32
Additional Materials Submitted for the Record:
Submissions for the Record by Representative Stansbury
Letters from various organizations in support of CEQ's
NEPA Phase 2 Rule...................................... 58
OVERSIGHT HEARING ON EXAMINING SYSTEMIC GOVERNMENT
OVERREACH AT CEQ
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Thursday, September 14, 2023
U.S. House of Representatives
Subcommittee on Oversight and Investigations
Committee on Natural Resources
Washington, DC
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The Subcommittee met, pursuant to notice, at 10:10 a.m. in
Room 1324, Longworth House Office Building, Hon. Paul Gosar
[Chairman of the Subcommittee] presiding.
Present: Representatives Gosar, Rosendale, Hunt, Collins,
Westerman; and Stansbury.
Also present: Representatives Bentz, Fulcher, Graves,
Newhouse; and Huffman.
Dr. Gosar. The Subcommittee on Oversight and Investigations
will come to order.
Without objection, the Chair is authorized to declare a
recess of the Subcommittee at any time.
The Subcommittee is meeting today to hear testimony on
examining systemic government overreach at CEQ.
I ask unanimous consent that all Members testifying today
will be allowed to sit with the Subcommittee, give their
testimony, and participate in the hearing from the dais. First,
the gentleman from Oregon, Mr. Bentz; the gentleman from
Louisiana, Mr. Graves; the gentleman here at the dais already
from California, Mr. Huffman; the gentleman from Idaho, Mr.
Fulcher; the gentlewoman from Washington, Mrs. McMorris
Rodgers; and the gentleman from Washington, Mr. Newhouse.
Without objection, so ordered.
Under Committee Rule 4(f), any oral opening statements at
the hearings are limited to the Chairman and the Ranking
Minority Member. I therefore ask unanimous consent that all
other Members' opening statements be part of the hearing record
if they are submitted in accordance with Committee Rule 3(o).
Without objection, so ordered.
I am now going to recognize myself for my opening
statement.
STATEMENT OF THE HON. PAUL GOSAR, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ARIZONA
Dr. Gosar. Thank you, Chairman Westerman, for joining us
today, and thank you also, Ranking Member Stansbury, for your
leadership on the Subcommittee. And thank all of the witnesses
for attending today.
Sadly, CEQ Chair Brenda Mallory refused to join us here
today, and she refused to provide the opportunity for someone
on her staff to testify on her behalf, which, quite honestly,
could have been a great opportunity. In the words of Supreme
Court Justice Louis D. Brandeis, ``Sunlight is said to be the
best of disinfectants.'' But as we have seen from the Biden
administration time and time again, they would prefer to
operate in darkness, insisting that Congress and the American
people take their word for it.
President Biden has repeatedly insisted that his actions
and the actions of his family are above reproach. Yet, over the
last several years, and largely thanks to the work of
congressional Republicans, we now know nothing can be further
from the truth. Nonetheless, the personal arrogance and lack of
accountability from President Biden has infected his entire
administration.
CEQ was once a small office charged with ensuring
compliance for the limited number of agency actions that
triggered the National Environmental Protection Act of 1969, or
NEPA. CEQ has a targeted role with a budget to match. Today,
President Biden has transformed CEQ's role from overseeing
NEPA's compliance to an agency with both a bloated budget and
role in government policy-making. It is an entity charged with
implementing his radical eco-agenda, remaking Federal agencies
as vehicles of social change, and leading the war on domestic
energy production.
As we will hear from some of our witnesses today, CEQ's
role in implementing Executive Orders and rulemaking vastly
exceeds the statutory role and prescribed authority. Examples
of this include: (1) refusing to implement bipartisan NEPA
reforms from the Fiscal Responsibility Act on a timely basis;
(2) improperly and arguably illegally imposing greenhouse gas
reduction requirements that deter investment in American energy
independence; (3) egregious favoritism toward radical eco-
activists pushing to breach the Lower Snake River Dams; and (4)
selecting an internal organization funded by one of the largest
left-leaning dark money groups as the sole arbiter of emission
reduction mandates for the Federal contractors.
On what now has become a routine matter, CEQ is ignoring
the will of Congress, whether it be refusing to provide a
witness for a hearing or to provide timely answers to routine
congressional inquiries. No other Federal agency has allowed
this lack of accountability, and this behavior is unacceptable.
It is Congress' responsibility to assess whether Federal
agencies and departments are operating in effective, efficient,
and economical manners, and to gather information that may
inform legislation.
Instead, before he was President, Democrat Woodrow Wilson
emphasized that Congress' oversight and informing function
should be preferred even to the lawmaking function. Woodrow
Wilson also added that unless Congress conducts oversight, the
country must remain in an embarrassing, crippling ignorance of
the very affairs which it is the most important that it should
understand and direct.
Time and time again, it appears that CEQ hopes that the
public remains in crippling ignorance of its work. Well, I have
news for Chair Mallory and President Biden. Not on my watch. We
will continue to hold CEQ accountable, and we will continue to
seek answers on the very questions CEQ refuses to answer. We
will ultimately use every tool at our disposal to obtain the
information we need from CEQ, including on rulemaking, on NEPA
reforms, on CEQ's relationships with radical eco-activist
organizations, and on CEQ's potential abuse of Federal
solicitation process to curry favor with dark money groups
supporting Democrats. Despite the best efforts from Chair
Mallory and President Biden, CEQ will not escape the watchful
eye of Congress' oversight.
Thank you to all of you, and I look forward to the hearing.
I now recognize the Ranking Member Stansbury for her
opening statement.
STATEMENT OF THE HON. MELANIE A. STANSBURY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW MEXICO
Ms. Stansbury. Good morning, and I want to just start by
welcoming all of our witnesses who are here to testify today.
And thank you to our Chair and to all of our colleagues who are
here today.
It is interesting to always have these debates, and to
discuss differing views of the world and how we see what is
happening in the world. And I think today really paints a stark
picture in the differences in how we view what is occurring on
our planet and in our country right now.
In the 1970s, in the late 1960s and 1970s, as they dawned,
our country had come to understand some of the damage that it
had inflicted upon itself. The Cuyahoga River was on fire.
Iconic rivers across the West were being dammed and causing
catastrophic results for communities that had relied on them
since time immemorial, tribal lands were being physically
damaged. Mines and other projects were being permitted in
proximity to vulnerable communities, and our food, water, and
air, which we thought, of course, would always be there to
sustain us, were in jeopardy.
And because of this, our nation came together and, in 1969,
passed one of the most fundamental bedrock environmental laws.
The National Environmental Policy Act was passed and signed
into law by Republican President Nixon on January 1, 1970, and
it was dubbed the Magna Carta of Environmental Laws as a direct
response to the environmental crises of the 1960s and 1970s
that was occurring.
Now, indeed, our planet, our country, our communities are
facing another crisis as we sit here today, and stands at
another global precipice. Last summer was the warmest summer in
recorded history. We are seeing tropical storms and hurricanes
stronger than ever, with flooding that is occurring all across
the planet, including in Libya, where over 5,000 people were
killed this last week and another 10,000 are missing. We are
seeing wildfires that are the worst wildfires ever in the
history of our planet that can be seen from space. And we are
seeing some of the biggest impacts of drought that we have ever
seen, including in my home state of New Mexico, where our
river, the Rio Grande, ran dry again this past week.
These are exactly the kinds of crises that Republicans and
Democrats had in mind when they came together and passed NEPA
on a bipartisan basis, because they understood that if we did
not empower our communities and stop the damage that we were
doing to our environment, that we could cause catastrophic
impacts for our communities. And that is the purpose for why we
passed NEPA.
But yet, here we are once again in this Committee, holding
another oversight hearing on the implementation of this
critical bedrock legislation at a time that our country is
standing at a precipice. And I will remind folks that this is
the third hearing that we have had on this specific topic.
But it is important to note that the President and
Democrats last Congress rose to the occasion. We are working
every single day to try to address this crisis. Last year, we
passed the largest and most significant legislation ever in the
history of the planet to address climate change with the
passage of the Inflation Reduction Act. Across the country, the
President, his cabinet, and Democrats are rolling out projects,
including in my home state in New Mexico, where we just started
and dug ground and cut ribbon on three new projects, including
one of the largest wind turbine factories in the United States,
the first solar manufacturer to repatriate to the United States
since the passage of the Inflation Reduction Act, and we cut
ribbon on the largest wind project in North America in the
Western Hemisphere just 2 weeks ago.
We are at the forefront of the clean energy revolution, and
understand that if we do not take urgent action now it will
have catastrophic and irrevocable impacts for our communities.
And that is also why the Chair of CEQ is not here today,
because she is out on the ground doing the work to ensure that
we prevent a catastrophic crisis for our planet and our
communities. And that is the work that we have been tasked with
as this body, as representatives of our communities, and as
people who serve this great nation.
So, I look forward to the discussion today. It is an
important discussion. It is a discussion about the role of
government in serving our communities in times of crisis,
helping our communities get through what is possibly one of the
most difficult chapters in American history, and addressing the
many faceted environmental crises that we are facing right now
in this country and on this planet.
Thank you, and I yield back.
Dr. Gosar. Thank you, Ranking Member Stansbury.
I now recognize the Chairman of the Full Committee on
Natural Resources, Mr. Bruce Westerman, for a statement.
STATEMENT OF THE HON. BRUCE WESTERMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARKANSAS
Mr. Westerman. Thank you, Chairman Gosar and Ranking Member
Stansbury, for holding this important hearing today, and thank
you to the witnesses for being here.
I do want to point out we have an empty seat in front of us
again. The Council on Environmental Quality is not exempt,
regardless of what they may think, from congressional
oversight. I want to make the record clear that we not only
invited Chair Mallory with plenty of notice, but also allowed
her to provide a designee for this hearing. And in response,
her staff stated and I quote, ``We do not have a designee for
Chair Mallory that will be available to testify on September
14.'' So, not only did she not show up, she couldn't find
anybody in the office over there to come by and visit with the
Committee that has jurisdiction over her agency's existence.
And to me, that is just quite simply unacceptable.
Moreover, in e-mail exchanges with my staff, CEQ staff
questioned the precedent of congressional oversight. The
Supreme Court has on multiple occasions clarified the power of
Congress to conduct oversight and investigations. Apparently,
the Chair thinks this doesn't apply to her tenure at CEQ.
And since her time as Chair of CEQ, Chair Mallory has now
twice refused to testify in our Committee, willfully ignored
questions from Members of Congress during the hearing. She
avoided the questions during the one hearing that she did show
up to, and missed deadlines for regular congressional inquiries
and questions for the record. And my staff informed me that
late last night they got a data dump of questions that were
answered from our last congressional hearing that had gone
unanswered up until this point.
So, while ignoring routine oversight, the Chair and her
employees at CEQ are continuing to do I don't know what,
because the purpose of oversight is to find out what they are
doing, why they are doing it, and how they are being stewards
of the taxpayer dollars. And are they following the laws that
Congress passed?
Again, I am not sure what they are doing with their time
and their massive overinflated budget that is nearly 70 times
their authorized amount. But it doesn't appear to be in
enforcing a bipartisan law that their boss, President Biden,
signed into law. And they were 100 days past the implementation
of the Fiscal Responsibility Act that passed with a majority of
votes in both the House and the Senate on a bipartisan measure,
and was signed into law by President Biden.
And the feedback I am getting from the outside world is
that not one bit of that policy is being implemented. So, I
think that is a reasonable request to have the Chair of CEQ to
come to this Committee and answer questions on how they are
implementing the law that, again, was a bipartisan law.
And from 2019 to 2023, CEQ's baseline budget more than
doubled, and they received an additional $62.5 million from the
Inflation Reduction Act to support environmental and climate
data collection. In short, the Administration is funneling
millions of taxpayer dollars to an agency whose, as best I can
tell, primary goal is ``environmental justice above all,''
while that agency refuses to answer questions from the
representatives of the American public.
Well, I can tell you that actions have consequences. And
those who don't show up to work generally don't get paid. And
to quote a President from long ago from the other side of the
aisle, the buck will stop here. It stops in Congress. We are
the ones that send the money to the Administration. And I will
be working with my counterparts in the Appropriations Committee
to ensure that we put a stop to egregious behavior and look to
fund CEQ at a level that is commensurate with its
accountability to the American people and its congressionally
authorized levels.
And something that is still true today, according to our
Constitution, is that Congress makes law and the Administration
enforces the law. And we may have a lot of great policy ideas,
we may have philosophies on society. There may be outside
activist groups who think the world should operate this way or
it should operate that way. But at the end of the day,
according to our Constitution, the law rules, and it is the law
that Congress passes and that the Administration signs. And
when we have an agency that deviates from that, it is Congress'
responsibility, it is our duty as representatives of the
people, to hold that Administration accountable. And that is
the purpose of this hearing today.
I do want to again thank the witnesses that are here. I
think you can provide important information about the real-
world impacts of the actions of CEQ, and I look forward to
hearing the testimony.
Again, Chairman, thank you, and I yield back.
Dr. Gosar. Thank you, Chairman Westerman. Now I will
introduce our witnesses.
As we have stated before, we invited Chair Mallory from the
White House's Council on Environmental Quality. While she
refused our invitation and she declined to send a designee, we
still did reserve her a chair in case she changes her mind.
We now have Mr. Mario Loyola, Director of the Environmental
Finance and Risk Management Program and Research Assistant
Professor at Florida International University Institute of
Environment, that is a mouthful; Ms. Jill Heaps, Senior
Attorney at Earthjustice; Mr. Scott Simms, CEO and Executive
Director, Public Power Council; and Mr. Marlo Lewis, Senior
Fellow at the Competitive Enterprise Institute.
Let me remind the witnesses that under Committee Rules,
they must limit their oral statements to 5 minutes, but their
entire statement will appear in the hearing record.
To begin your testimony, just press the on button on the
microphone. We use timing lights here. When you begin, the
light will turn green, and at the end of those 5 minutes, it
will turn red. I ask you to please summarize and complete your
statement if you start seeing the yellow.
I will also allow all witnesses to testify before having
Members ask their questions.
I now recognize Mr. Loyola for his first 5 minutes.
STATEMENT OF MARIO LOYOLA, RESEARCH ASSISTANT PROFESSOR,
ENVIRONMENTAL LAW, FLORIDA INTERNATIONAL UNIVERSITY, MIAMI,
FLORIDA
Mr. Loyola. Chairman Gosar, Ranking Member Stansbury,
members of the Committee, thank you for the honor of appearing
before you today.
My name is Mario Loyola. I teach environmental law at
Florida International University, and I am also a fellow at the
Heritage Foundation. Under President Donald Trump, I served as
Associate Director for Regulatory Reform at CEQ, where I was
intimately involved in developing the One Federal Decision
policy and the 2020 rule revision. I am appearing before you
today in my individual capacity, and not as a representative of
FIU or the Heritage Foundation. I have submitted more detailed
comments for the record, and will just make a few points now.
The delays and uncertainties of the Federal permitting and
environmental review process are an enormous burden for
American society, and a very dangerous, competitive
disadvantage compared with countries like China. Not only does
it deprive Americans of the modern infrastructure that they
need and deserve, but even the scale of the renewable energy
deployment that would be required for the clean energy
revolution that Ranking Member Stansbury mentioned is
completely impossible under current law because of the limits
to the amount and the speed at which renewable energy capacity
can be permitted.
Within the executive branch, Presidents Bush, Obama, and
Trump all tried to tackle this problem of inefficient
permitting. But President Biden, unfortunately, appears to have
thrown in the towel on permitting reform. One fact that is
incredible to me really bears this out. During the Trump
administration, the rate at which renewable energy capacity was
permitted actually doubled from 2017 to 2020. Under the Biden
administration, it has actually gone down. And the amount of
renewable energy capacity that was permitted last year was
lower than in 2020.
The Fiscal Responsibility Act's historic amendments to NEPA
were a huge step forward for permitting reform. But some of the
most important provisions are not self-executing and require
active implementation by CEQ. Unfortunately, CEQ appears to
have gone in the opposite direction. Perhaps to placate the
radical left or for whatever reason, CEQ has sought to undo the
Trump-era reforms, of which, ironically enough, the renewable
energy sector was arguably the primary beneficiary. I will name
a few examples.
Where the Fiscal Responsibility Act tries to clarify that
only a limited set of reasonable alternatives to the agency
action need to be studied in detail, CEQ has reintroduced the
concept of studying alternatives outside the agency's
jurisdiction. Even worse, it has created a new requirement that
the agency identify and study in detail the environmentally
preferable alternatives, which is not a statutory requirement
in NEPA for significance determinations. CEQ has again gone
back to the 1978 regulation, and revived the context and
intensity factors, thereby expanding what should be a single
factor inquiry for the agencies into a dozen or more factors
that they have to consider.
Likewise, CEQ has reintroduced the concept of cumulative
impacts into the definition of effects that must be studied.
And here I will just stop and make a point that is very
important for the Committee to be clear about, and for the
Committee to make clear for the American people, which is that
these added procedural burdens that CEQ has reintroduced into
the NEPA process are not judicially enforceable against Federal
agencies. CEQ has no rulemaking authority. The CEQ regulation
is really just an Executive Order, like Executive Order 12866.
And no matter what level of deference courts give CEQ,
whether it is substantial deference as the Supreme Court has
indicated, or more controlling deference as lower Federal
courts have mistakenly done, it simply cannot be the case that
the statutory term effects of the agency action can include the
effects of other actions that are not related to the agency
actions, which is, of course, the concept of cumulative
impacts.
Likewise, the time limits and page limits in the Fiscal
Responsibility Act are not self-executing, and require CEQ
guidance. Here it is very important that agencies not be
allowed unfettered discretion to start the clock ticking
whenever they want.
Finally, the definition of major Federal action, CEQ must
make clear that it is the action and its impacts that must be
within the agency's control for NEPA to be triggered.
There is more than enough capital in the private economy to
build all the infrastructure that America needs if government
would just make the process more predictable. Congress wouldn't
have to be borrowing trillions of dollars from our children and
grandchildren to subsidize infrastructure if we could just
remove the uncertainties that the process contains today.
I have made several recommendations to that effect in my
submitted testimony, and I look forward to answering your
questions. Thank you very much.
[The prepared statement of Mr. Loyola follows:]
Prepared Statement of Mario Loyola, Professor, Florida International
University, Senior Research Fellow, Heritage Foundation
Chairman Gosar, Ranking Member Stansbury, members of the Committee,
thank you for the honor of appearing before you today. My name is Mario
Loyola. I'm a research assistant professor at Florida International
University, where I teach environmental and administrative law. I'm
also a fellow at the Heritage Foundation, where I focus on energy,
climate, and environment issues.
Under President Donald Trump, I served as associate director for
regulatory reform at the White House Council on Environmental Quality
(CEQ). In that role I was one of the principal drafters of the One
Federal Decision policy and the revision to CEQ's Regulation of NEPA.
My testimony today reflects the insights gleaned from years of work on
these issues in and out of government. I'm appearing before you today
in my individual capacity and not as a representative of FIU or The
Heritage Foundation. The views I will express today are my own and not
necessarily those of FIU or The Heritage Foundation.
Many factors contribute to the enormous costs, delays, and
uncertainties of the federal process for permitting and environment
review of infrastructure projects. But the root of the problem is a
hydra-headed bureaucracy in which separate agencies enforce disparate
environmental laws with uncoordinated and inconsistent processes.
Charged with overseeing the National Environmental Policy Act (NEPA)
CEQ has tried to reform the process under presidents of both parties.
But all those efforts are just tinkering at the margins of a problem
that only Congress can solve. Congress took a major step towards reform
when it amended NEPA in the Fiscal Responsibility Act, and the members
of this committee are to be particularly commended for that
accomplishment. But much more needs to be done.
I. The Vital Importance of Efficient Permitting and Environmental
Review
The costs, delays, and uncertainties of the federal process for
permitting and environmental review of major infrastructure projects
are an enormous competitive disadvantage for the United States.
Permitting inefficiency deprives Americans of the modern infrastructure
they need and deserve. Leaving aside whether the goal of net zero is
even desirable, the American people need to understand that the goal of
net zero is a fantasy given the delays and uncertainties of the
permitting process.
The Biden administration has been remarkably slow to appreciate
this, which is surprising given that its highest priority is supposed
to be a transition to net zero. It's a remarkable contrast with the
Trump administration. The amount of renewable energy capacity permitted
has gone down in the Biden administration after doubling during the
Trump administration. Ten percent less renewable capacity was permitted
last year than in 2020. That should ring alarm bells in Congress. The
Trump administration's attitudes toward renewable energy ranged from
agnostic to hostile. Yet simply because of President Trump's commitment
to efficient permitting, the rate of renewable capacity permitting was
higher in his last year in office than it is now. This also highlights
the paradox that among the biggest obstacles to a clean energy
transition are the far-left environmental advocacy groups that block
the very permitting reforms that would be necessary to increase
deployment of renewable energy.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chart: U.S. Annual and Cumulative Utility-Scale Clean Power
Capacity Growth--Clean Power Annual Market Report 2022
We often hear complaints about the costs, delays, and uncertainties
of the permitting process, but of these, the worst by far is
uncertainty, which has an enormous impact on access to capital. This is
a key point for members of Congress to understand. There is more than
enough capital in the private economy to build all the infrastructure
that America needs. If we could only make the permitting process
predictable enough for private financing, Congress would not have to
borrow trillions from our children and grandchildren to subsidize
infrastructure.
II. CEQ's Revisions to its NEPA Implementing Regulations
A. The CEQ Regulation Does Not Create Judicially Enforceable Rights or
Obligations
In 1978, under President Jimmy Carter, CEQ published a set of so-
called regulations implementing NEPA. I say ``so-called'' because CEQ
has no rulemaking authority under NEPA. The authority cited in the
premises of the 1978 Regulation is a Nixon executive order, as amended
by a Carter executive order.\1\ The CEQ regulation is simply a White
House directive dressed up to look like a regulation. Its guidelines
are mandatory for executive branch agencies, just like E.O. 12866. But,
like E.O. 12866, it cannot add to the judicially enforceable rights and
obligations created by NEPA.
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\1\ Executive Order 11514 (March 5, 1970), as amended by E.O. 11991
(May 24, 1977).
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When made pursuant to executive authority and not in the exercise
of a congressional delegation of rulemaking authority, presidential
directives present the paradigmatic case for Skidmore deference, to wit
``substantial deference'' to agencies' interpretive rules. See,
Skidmore v. Swift & Co., 323 U.S. 134 (1944). While lower federal
courts have often treated the CEQ Regulation as controlling and
judicially enforceable, the Supreme Court has gotten this right. In
Andrus v. Sierra Club, the Court noted, ``CEQ's interpretation of NEPA
is entitled to substantial deference.'' 442 U.S. 347, 358 (1979). The
Court has reiterated that position several times, for example in
Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) and
Department of Transportation v. Public Citizen, 541 U.S. 752 (2004).
These cases need to be read with Vermont Yankee Nuclear Power Corp.
v. NRDC, in which the Supreme Court made clear: ``Agencies are free to
grant additional procedural rights in the exercise of their discretion,
but reviewing courts are generally not free to impose them if the
agencies have not chosen to grant them.'' 435 U.S. 519 (1978).
Hence, it is important to remember that neither CEQ nor federal
courts have the power to add enforceable procedural requirements to the
statutory requirements of NEPA.
B. Developments Since 2020
On July 16, 2020, CEQ finalized an extensive revision and update of
the 1978 regulation.\2\ The Trump-era rule revision was measured,
designed to reduce costs, delays, and uncertainties, while making the
NEPA process more inclusive for stakeholders and preserving
environmental protections.
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\2\ 85 Fed. Reg. 43,304, ``Update to the Regulations Implementing
the Procedural Provisions of the National Environmental Policy Act,''
(July 16, 2020).
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I was intimately involved in the process that produced that rule
revision, and I can attest that we bent over backwards to create an
inclusive, broad-based rule that could get bipartisan support and stand
the test of time. The worst thing that could happen is for the CEQ rule
to become politicized and for NEPA procedures to change with every new
administration. Like uncertainty in the NEPA process, instability in
NEPA procedures hurts everybody.
In my view, the Biden CEQ has not been sufficiently sensitive to
this danger. The rule proposed on July 31 and currently up for notice-
and-comment is called ``Phase 2,'' but it is actually the third time
CEQ has changed its regulation of NEPA since 2022.\3\
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\3\ 88 Fed. Reg. 49,924, ``National Environmental Policy Act
Implementing Regulations Revisions Phase 2,'' July 31, 2023.
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Fortunately, the Fiscal Responsibility Act (FRA) enacted important
amendments to NEPA. Those amendments will help anchor the NEPA process
and provide much-needed stability.
III. Issues in the Biden CEQ's Phase 2 Rewrite
This section highlights important issues in the Phase 2 rulemaking,
including CEQ's consistency with the FRA's NEPA amendments.
Statement of purpose and need. As amended, NEPA now requires
environmental documents to contain a statement of purpose and need for
the agency action. It's very important to distinguish between the
purpose and need for the agency action, and the purpose and need for
the underlying project. In a permitting decision subject to NEPA, the
purpose and need for the project is none of the agency's business. What
matters in the NEPA process is the purpose and need for the agency
action, which in a permitting decision is the statutory authority that
requires the agency to act on a permit application. This matters
because of the alternatives analysis, which is supposed to be cabined
by the purpose and need, and which often takes up a majority of the
EIS. The alternatives to a project may be infinitely many. But the
alternatives in a permitting decision will normally be just to grant or
deny the permit. Agencies routinely conflate the purpose and need for
the project with the purpose and need for the action, which leads to an
enormous waste of time and resources. All the time that FERC spends
studying design alternatives and routing alternatives--none of that is
required by NEPA. This is something that the Phase 2 rulemaking gets
right. The new Sec. 1502.13 would require that each EIS contain a
statement of the purpose and need for the proposed agency action.
Limitation on alternatives that must be considered. NEPA originally
required the agency to study ``alternatives'' to the proposed agency
action but gave little guidance on which alternatives the agency should
consider. The result has been a huge waste of time both in the NEPA
process and the ensuing litigation. The FRA amendments provided much
needed clarity and limiting principles here. Under Sec. 102(2)(C), the
alternatives that the agency is required to consider now are those that
constitute: (1) a ``reasonable number''; (2) are technically and
economically feasible; (3) are within the jurisdiction of the agency;
(4) meet the purpose and need of the proposed agency action; and (5)
meet the goals of the applicant.
This is a significant change. One of the biggest contributors to
the excessive length of NEPA documents is that agencies spend hundreds
of pages studying the impacts of a broad range of alternatives that the
developer can readily exclude for business reasons, and that the agency
can often readily exclude for policy reasons. But they study them
anyway, because of the lack of clarity of what alternatives the law
required them to study. A major problem has been the systematic
conflation of alternatives to the ``agency action'' with alternatives
to the project itself, alluded to above.
The Phase 2 rulemaking contains problematic language in this
regard. Sec. 1502.14(a) reintroduces the concept of ``alternatives not
within the jurisdiction the agency.'' As long as it is not an
enforceable requirement, such procedural add-ons are within the
prerogative of the president, but it could lead agencies to consider
factors that Congress did not intend them to consider, in violation of
the Administrative Procedure Act. An even bigger problem is the new
requirement in Sec. 1502.14(f) that the agency identify the
environmental preferable alternative. Federal courts have to be clear
that this language is precatory as far as they're concerned, and
definitely not judicially enforceable.
Significance determination. Sec. 1501.3(d) of the Phase 2
rulemaking reintroduces the ``context and intensity'' factors that the
1978 Regulation invented out of thin air to guide agencies in
determining when there is a significant impact requiring an EIS under
NEPA. The Trump-era CEQ eliminated these factors because we felt
because ``significantly'' is a simple statutory term whose meaning
should not require a Homeric odyssey of regulatory exploration. The
``context and intensity'' factors are an example of how the NEPA
process has expanded to consume enormous agency resources, and their
reintroduction in the Phase 2 rulemaking is a major step in the wrong
direction.
Reasonably foreseeable standard for impacts that must be studied.
The FRA changed NEPA Sec. 102(2)(C) to create a ``reasonably
foreseeable'' standard for the impacts and alternatives that must be
studied. This is a significant change, because the biggest expansion in
the scope of NEPA in recent years has been a series of court rulings
that require agencies to study impacts far upstream and far downstream
from the agency action, including climate-related impacts. ``Reasonably
foreseeable'' is a concept borrowed from the law of torts, in which
liability for negligence lies when the defendant's failure in his duty
of care was not just the cause-in-fact of the injury but also its
proximate cause. Proximate causation is limited to those injuries that
are reasonably foreseeable. This is one of several provisions adopted
from the 2020 NEPA rule revision and was borrowed from Justice Thomas's
majority opinion in Department of Transportation v. Public Citizen.
Agencies and developers should now be able to avail themselves of
proximate causation as developed in the common law of torts to limit
the downstream and upstream effects that must be considered in the NEPA
process.
The White House can still require agencies to account for
greenhouse gas emissions, but there is no way that greenhouse gas or
climate impacts of any particular agency action could be considered
``significant'' impacts within the meaning of Sec. 102(2)(C) of NEPA.
Permit decisions are not the place for agencies to be usurping
Congress's role in making national policy.
Cumulative Effects. Similarly, Sec. 1508(g) of the Phase 2
rulemaking defines effects or impacts to include ``cumulative
effects,'' which are effects on the environment that result from the
incremental effects of the action when added to the effects of other
past, present, and reasonably foreseeable actions regardless of what
agency or person undertakes such other action. This also should not be
treated as a judicially enforceable requirement. The environmental
baseline should always include important trends. But whatever level of
deference is given to the CEQ regulation, there is no possible way that
``effects of the proposed agency action'' in Sec. 102(2)(C) could be
read to include effects of actions totally unrelated to the proposed
agency action. Therefore, CEQ's inclusion of ``cumulative effects''
within the definition of ``effects'' should be considered precatory and
totally irrelevant to the legal sufficiency of an EIS.
Time limits. Under the FRA's NEPA amendments, the lead agency must
now complete the EIS in 2 years, and an EA in 1 year. The clock starts
ticking on the earlier of (a) the date that the agency determines that
an EIS or EA is required for the proposed action, (b) the date on which
the agency notifies the applicant that its application is complete, or
(c) the date on which the agency publishes a notice of intent to
prepare an EIS or EA.
This provision of the FRA creates a tight timetable that if
effectively implemented will make the process much faster and more
predictable. But it is not entirely self-executing. If left to their
own devices agencies will almost certainly game the system, just like
they gamed the time limits under One Federal Decision. The issue with
time limits in NEPA is always who controls the starting gun. If it is
the agency, then a real time limit is almost impossible to achieve. An
effective time limit requires putting the project proponent in charge
of when the clock starts ticking.
Hence, the time limits codified at Sec. 1501.10 in the Phase 2 NEPA
rulemaking are a missed opportunity. CEQ needs to create an automatic
trigger for when the agency ``determines that NEPA requires an EIS or
EA for the proposed action.'' That trigger should be in the hands of
the project proponent, not the agency. One possibility is for FPISC or
another entity outside the action agency to pass on the sufficiency of
a permit application.
Page limits. Similarly, agencies proved resourceful in gaming the
page limits of One Federal Decision. The FRA's NEPA amendments limit
EISs to 150 pages and EAs to 75 pages (350 and 150, respectively for
projects of ``extraordinary complexity''). These limits do not include
appendices. But if the page limits don't include appendices, then there
may be no real page limits, and we could start seeing executive
summaries 150 pages long presented as a complete EIS, with the other
however many hundreds or thousands of pages of EIS presented as
appendices. CEQ should establish the principle that the sufficiency of
the EIS is reinforced by, but does not require, any of the matter in
the appendices.
Applicant preparation of NEPA documents. As amended by the FRA,
Sec. 107(f) of NEPA requires agencies to prescribe procedures for
project proponents to draft their own EISs, subject to agency
verification and adoption. This is a very important change. One of the
greatest sources of delay and uncertainty in the NEPA process was the
requirement, invented by the 1978 CEQ Regulation, that the agency
prepare the EIS. The change brings U.S. environmental review procedures
in line with the general practice across developed industrial
economies. But once again, the FRA's NEPA amendment is not entirely
self-executing and looking at Sec. 1506.5 of the Phase 2 rulemaking,
this is another missed opportunity. CEQ should specify the procedures
to be adopted by agencies in compliance with Sec. 107(f) and should
give agencies a strict timeline to adopt them.
Major federal action. In the years after NEPA was first enacted,
there was considerable discussion about whether the word ``major'' in
``major federal action significantly impacting'' the environment (under
Section 102(2)(C)) created a separate standard that needed to be met
apart from ``significantly impacting'' for NEPA's core EIS requirement
to be triggered. The 1978 CEQ Regulation of NEPA tried to settle the
debate by providing that if a federal action had a ``significant
impact'' on the environment, it was ipso facto a ``major'' federal
action. This arguably violated an important canon of construction,
which is that words in a statute should not be presumed to mean
nothing.
In a new definition of ``major federal action'' the FRA made clear
that ``major'' is a separate standard that must be met independently of
``significantly impacting'' for NEPA to be triggered: ``The term `major
Federal action' means an action that the agency carrying out such
action determines is subject to substantial Federal control and
responsibility.'' CEQ should clarify that ``action'' in the statute
means an action and its impacts, such that the action is ``major'' if
its impacts are subject to substantial Federal control and
responsibility. Hence an agency action related to a project whose
ultimate outcome or impacts are under the control of a state government
should not qualify as a ``major federal action.''
IV. Recommendations
To address the problems of cost, delay, and uncertainty in the
permitting process, Congress should at a minimum:
Make the timing predictable. Agency officials drag their feet every
step of the way, leaving developers in limbo and driving up projects'
costs. If developers had more control over project timetables, it would
save enormous amounts of capital and time. Instead of allowing only
officials to assemble environmental documents, developers should be
allowed to prepare the materials for agency certification. If agencies
take too long issuing a permit or denial, developers should be given
provisional permits to start construction subject to monitoring and
mitigation.
Prioritize projects of national importance. NEPA has resulted in
the systemic subordination of the national interest in major
infrastructure projects to small pockets of local opposition. Courts
ruling on injunctive relief have often disregarded the national
interest in effective agency action.
Create a unified process. Every major infrastructure project
requires permits from a half dozen federal agencies all using
different, uncoordinated processes. There should be a uniform,
centralized process that gives priority to projects of national
importance. CEQ should make this a priority of its E-NEPA study under
Sec. 110 of NEPA as amended by the FRA.
Major infrastructure projects should have access to a single ``one-
stop-shop'' agency and single application process to obtain all needed
permits under a single environmental review document. The ``one-stop-
shop'' can either grant authorizations or act as a coordinator to
facilitate the interagency process with directive authority. The
Permitting Council created by FAST-41 could be the foundation for such
an agency.
Denmark and the Netherlands have consolidated all their
environmental laws into a single statute with a single permitting
agency, while preserving the enforcement and regulatory authorities of
traditional environmental agencies. Congress should begin the process
of studying whether federal environmental laws can be updated and
harmonized in a bipartisan process of consolidation.
Centralized data collection on infrastructure projects. A central
data collection platform that longitudinally tracks projects from
preapplication to completion or abandonment, on a sector-wide basis,
could vastly improve access to financing, by making the risks of
permitting more easily quantifiable. In the U.S., such information
exists only for EISs, which comprise only a small fraction of
infrastructure projects. A comprehensive database should cover all
major infrastructure projects, federal and state. It should be designed
in such a way as to serve as a common basis for official environmental
assessment and authorization decisions, private investment decisions,
and public comment. The data should be detailed enough to allow private
companies to provide ``predictive project analytics'' to potential
developers and investors. CEQ should also make this a priority of its
E-NEPA study under Sec. 110 of NEPA as amended by the FRA.
Reduce litigation risk. Important projects are held up by lawsuits
over minor omissions in environmental studies. Tightening the statute
of limitations is not enough. Agencies should be held to a substantial-
compliance standard, so that if reports are mostly right, a project can
still go forward while the environmental document is corrected.
Congress should tighten the rules on standing and revive procedural
protections for defendants so that activists cannot hold up safe
infrastructure over minor issues.
Empower agencies to establish programmatic and general permits.
Major categories of infrastructure projects with similar environmental
profiles should be subject to expedited programmatic or general
permits, with mitigation and monitoring requirements. Congress should
empower agencies to create programmatic and general permits when
necessary to advance national policy goals.
______
Dr. Gosar. Thank you, Mr. Loyola.
I now recognize Ms. Heaps for her 5 minutes.
STATEMENT OF JILL WITKOWSKI HEAPS, SENIOR ATTORNEY,
EARTHJUSTICE, NEW YORK, NEW YORK
Ms. Heaps. Good morning, Chair Gosar, Ranking Member
Stansbury, and members of the Subcommittee. My name is Jill
Witkowski Heaps. I am a public interest attorney at
Earthjustice and an expert on NEPA. I have been helping
communities navigate NEPA issues for almost two decades. I have
also been briefed by my Earthjustice colleagues in order to
provide testimony today on the Lower Snake River restoration.
I would like to start today with a story of how NEPA saved
the Lower Ninth Ward in New Orleans. Pam Dashiell and her
neighbors in the Holy Cross neighborhood were concerned when
they learned that the Army Corps of Engineers had a plan to
dredge toxic muck from the bottom of the Industrial Canal and
pile it up in the marsh next to the Lower Ninth Ward. The Corps
approved the dredging plan without figuring out exactly what
pollutants were at the bottom of the canal, how deep they were,
how toxic they were, and even if it was safe to put that
pollution in the marsh.
Pam and her neighbors from the Holy Cross Neighborhood
Association sued the Corps for failing to comply with NEPA.
While the suit was pending, on August 29, 2005, Hurricane
Katrina slammed into New Orleans. The area where the Corps
planned to put the toxic muck was inundated with 19 feet of
high-velocity erosional water. Had the toxic material been
stockpiled in the marsh when Katrina hit, that toxic material
would have spread all over the Ninth Ward, and likely other
parts of New Orleans, potentially rendering them unsalvageable
after the storm.
The court agreed that the Corps failed to take a hard look
at the environmental consequences of its action. And this is
how NEPA and a community's ability to hold agencies to comply
with its mandates saved the Lower Ninth Ward so Holy Cross
neighborhood could rebuild after the storm.
Many of the communities and environmental justice leaders I
have worked with over the course of my career recognized NEPA's
unfulfilled promise. NEPA's primary purpose is for agencies to
take a hard look at the effects of a project. But in practice,
agencies treat the affected community as an afterthought, a box
to check. If no one bothers to sit down and have a conversation
with the community until the project is a done deal, then the
NEPA document is a paperwork exercise.
Many communities suffer because they are literal and
figurative dumping grounds so the rest of us can live in
neighborhoods free from air and water pollution, noise, and
traffic that they are saddled with. These communities are dying
of death by a thousand cuts. And here is where NEPA, a law
where the Federal agencies are supposed to be looking at
cumulative impacts of a project, a law that could alleviate
more harm to already overburdened communities. But in practice,
agencies sometimes overlook, ignore, and downplay the
cumulative environmental impacts to the community, or, if they
do look at the impacts, the agency may claim the impacts are
not disproportionate, as if the communities had the exact
amount of pollution that they deserved.
The Phase 2 regulations are a step in the right direction
to fulfilling NEPA's promise of better Federal decisions that
involve the public in the decision-making process. The
regulations codify what many courts have already told us:
environmental justice and climate change analysis are key
elements of NEPA reviews.
If an agency relies on mitigation measures to determine
that impacts are not significant, then provide certainty that
mitigation will occur, use plain language in the documents,
involve affected communities early in the process. All of these
things will lead to more clarity in the rules, early and more
meaningful community participation, and ultimately quicker and
better decisions.
As for the issues with the Lower Snake River, the four
federally owned and operated dams on the Lower Snake River have
decimated salmon populations. This has had enormous impacts on
the four Columbia River Basin Treaty Tribes who reserved their
right to fish in treaties with the U.S. Government in exchange
for 13.2 million acres of land. It is time for a comprehensive,
basin-wide solution that restores the Lower Snake River, honors
the treaties, and makes stakeholders whole.
Thank you for the opportunity to speak with you today, and
I welcome your questions.
[The prepared statement of Ms. Heaps follows:]
Prepared Statement of Jill Witkowski Heaps, Senior Attorney,
Earthjustice
Good morning, Chair Gosar, Ranking Member Stansbury, and members of
the Subcommittee. I am Jill Witkowski Heaps, Senior Attorney at
Earthjustice. Prior to my time at Earthjustice, I was a law professor
at the University at Buffalo, at Vermont Law School, and at Tulane Law
School. I have spent almost two decades of my career working on
National Environmental Policy Act (NEPA) cases. From 2013-2019, I
served on the National Environmental Justice Advisory Council, serving
as Vice-Chair for three years. After my term on the NEJAC ended, I
continued to serve as an at-large member of the NEJAC committee on the
NEPA. I am familiar with the 2020 regulation changes and the proposed
Phase Two Regulations. I also have been briefed by my Earthjustice
colleagues in order to provide this testimony related to the Lower
Snake River restoration.
Summary of Testimony
NEPA
The National Environmental Policy Act, our Nation's bedrock
environmental law, mandates that agencies ``look before they leap,''
with the intent that a hard look at the environmental consequences of
an action will lead to better decision making. When NEPA is not
robustly and fully implemented, it can lead to disaster. Community
members in the Lower Ninth Ward and Hold Cross neighborhoods in New
Orleans learned this firsthand. The Army Corps of Engineers planned to
dredge the Industrial Canal and place the sediment in a marshy area
next to the Lower Ninth Ward neighborhood. The Corps knew the sediment
was contaminated with various toxins, but it did not know exactly where
the contamination was or how severe it was. The Corps approved the
dredging project and the neighbors sued, objecting that the Corps
failed to take a hard look at the risks from putting toxic materials in
the marsh near the neighborhood. On August 29, 2005, Hurricane Katrina
slammed New Orleans. The area where the Corps planned to put the toxic
materials was inundated with 19 feet of high-velocity, erosional
waters. Had the Corps moved forward with their plan, the toxic dirt
would have been spread all over the Lower Ninth Ward, the Holy Cross
neighborhood, and other parts of New Orleans, making them potentially
uninhabitable. The court agreed that the Corps failed to take a hard
look at the environmental consequences of its action. NEPA--and the
community's ability to challenge the analysis in court--saved those New
Orleans neighborhoods so that they could be rebuilt in the hurricane's
aftermath.
The Council on Environmental Quality (CEQ) shoulders the critical
task of implementing the National Environmental Policy Act. As our
Nation's bedrock environmental law, NEPA was adopted by a bipartisan
Congress and signed into law by President Nixon to ensure that federal
agencies make better decisions by ``looking before they leap.'' NEPA
created CEQ to set the backstop of minimum requirements for NEPA
compliance. Then individual agencies adopt their own regulations to
implement NEPA that are consistent with the CEQ regulations.
Over the more than fifty years of implementing NEPA, federal
agencies have addressed emerging issues--like climate change and
environmental justice--with varying degrees of focus and intention. The
2020 revisions to the 1978 NEPA Regulations in many ways undermined,
rather than buttressed, NEPA. Left in place, the 2020 Regulations would
have created massive uncertainty that would have required endless
litigation to determine how they should be interpreted by agencies,
project proponents, and stakeholders. The CEQ's Phase One Regulations,
finalized in April 2022, and the proposed Phase Two Regulations are
squarely within CEQ's regulatory authority and do not represent
``systemic government overreach.'' On the contrary, these regulatory
changes modernize NEPA to ensure that environmental reviews address key
issues like climate change and environmental justice. The new
regulations provide clarity to promote faster, more efficient decision
making. They also promote meaningful participation in federal decision
making to facilitate better choices, reduce environmental harms, and
ensure more responsible use of taxpayer dollars.
1. The Phase Two Regulations Provide Much-Needed Clarity on How
Agencies Should Address Environmental Justice Issues in NEPA
Reviews.
NEPA mandates agencies consider an action's impacts on the human
and natural environment. Environmental justice is defined as the just
treatment and meaningful involvement of all people so that they are
fully protected from disproportionate and adverse human health and
environmental effects and hazards, and have equitable access to a
healthy, sustainable, and resilient environment. NEPA itself therefore
has required that agencies consider issues of environmental justice in
their environmental reviews since at least 1994 and the issuance of
Executive Order 12,898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations.\1\
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\1\ Exec. Order No. 12,898 mandates ``each Federal agency shall
make achieving environmental justice part of its mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of its programs, policies, and
activities on minority populations and low-income populations in the
United States,'' 59 Fed. Reg. 7629, 7629, 7632 (Feb. 11, 1994). See
also Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs, 440 F.
Supp. 3d 1, 9 (D.D.C. 2020), aff'd, 985 F.3d 1032 (D.C. Cir. 2021)
(``NEPA creates, through the Administrative Procedure Act, a right of
action deriving from Executive Order 12,898.'').
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In 2019, the National Environmental Justice Advisory Council
(NEJAC) submitted a letter to then-EPA Administrator Wheeler, detailing
problems with NEPA from an environmental justice standpoint and
recommending changes.\2\ The NEJAC identified three specific areas
where NEPA was failing communities with environmental justice concerns.
The letter observed that ``[t]o the extent that the analysts now
address environmental justice at all, they often do it in a sanitized,
checklist-driven manner.'' \3\ This approach fails to meaningfully
address cumulative impacts on the community and identify reasonable
alternatives and therefore ``adds little if any value to the resulting
documents.'' \4\ The NEJAC criticized that NEPA analysis often is
little more than an effort to justify a preferred alternative and
discount others, which fundamentally undermines the purpose of NEPA.
The NEJAC also observed that analysts rarely ``consider the hard
connection between the economic benefit of an action and the health and
welfare of workers, especially those in environmental justice
communities.'' \5\
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\2\ Letter from the Richard Moore, NEJAC, to EPA Administrator
Wheeler, ``National Environmental Policy Act and Environmental
Justice,'' Aug. 19, 2019 https://www.epa.gov/sites/default/files/2019-
10/documents/nejac_letter_nepa.pdf
\3\ Id.
\4\ Id.
\5\ Id.
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The NEJAC crafted recommendations based on members' ``wealth of
ground-level experiences in the use and misuse of NEPA'' and were
subject to a ``broad, inquiring discussion'' before they were
submitted. The recommendations emphasized the need for more robust,
high-quality information related to environmental justice in order to
develop better decisions. The recommendations provided detailed
examples of how NEPA analyses could effectively assess and mitigate
harm to the human environment, how cumulative impacts analyses
impacting communities should involve the communities in identifying the
impacts, and ensuring community questions and concerns were addressed
in meaningful, substantive ways. The NEJAC letter also requested that
EPA work with CEQ and NEPA leadership across the federal family to
encourage agencies to adopt and consistently use the Federal
Interagency Working Group on Environmental Justice's report ``Promising
Practices for EJ Methodologies in NEPA Reviews.''
For too long communities with environmental justice concerns have
been treated as a ``check the box'' afterthought in the NEPA process or
left out altogether. For example, in the 362-page NEPA document the
Federal Highway Administration approved in 2020 for the Erie Bayfront
Parkway Project, the environmental justice analysis spanned just over
one page, despite vocal opposition by impacted community members and
the local NAACP chapter. In the U.S. Fish & Wildlife Service's 2020
environmental assessment for a sewage pipeline right of way through the
Iroquois National Wildlife Refuge, the document concluded there were no
environmental justice communities in the affected area, even though the
Tonawanda Seneca Nation's reservation is in the affected area.
The Phase Two Regulations address long-running shortcomings in
environmental justice analysis spanning nearly 30 years since Executive
Order 12,898 was finalized. The Phase Two Regulations clarify that
NEPA's policy requires federal agencies, to the fullest extent
possible, to encourage and facilitate public engagement in decision
making through ``meaningful engagement with communities with
environmental justice concerns, which often include communities of
color, low-income communities, Indigenous communities, and Tribal
communities.'' The proposed regulations are a critical step to ensure
all federal agencies conduct an environmental justice analysis that
meaningful involves the impacted communities and lead to better
decisions for the entire community.
2. The Phase Two Regulations Direct Agencies To Address Climate Change
in NEPA Reviews.
While courts have long recognized that NEPA reviews must address
climate impacts, various federal agencies have been slow or reticent to
meaningfully tackle climate change issues in NEPA documents. While
agencies preparing NEPA documents for fossil fuel projects have been
incorporating climate change analysis to some extent, agencies
preparing environmental reviews for other types of projects have been
myopic in their failure to meaningful look at an action's impacts on
climate change and the likely impacts on the action from climate
change. While we know that transportation is both a key contributor to
climate change and has the potential to be greatly impacted by climate
change--like sea level rise and the increased frequency and severity of
storms--the Federal Highway Administration has mostly refused to
meaningfully address climate change in its reviews. For example, the
Federal Highway Administration's 360-page NEPA review from 2020 for the
Erie Bayfront Parkway failed to even use the words ``climate change.''
The project proposed lowering an elevated waterfront roadway in a
flood-prone area, ignoring the possibility of increased flooding of the
underpass, despite seeing real-life examples from New York City and
Philadelphia during recent flooding events. Similarly, the Federal
Highway Administration has failed to examine whether a project will
increase or maintain vehicle miles traveled, when there is consensus
that we must reduce vehicle miles traveled to meet our climate
goals.\6\
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\6\ See 2021 Pennsylvania Climate Action Plan, which includes as a
goal ``reduced vehicle miles traveled for single occupancy vehicles.''
PA Climate Action Plan (2021) at 57. The plan explains that vehicle
miles traveled ``reduction efforts are paired with land-use and
development policies that promote and incentivize sustainable
transportation modes (e.g., walking, biking, transit) in densely
populated urban areas and assume the expansion of options for
sustainable mobility to and from urban centers (bus rapid transit,
carpool) in the medium and long terms.'' Id.
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Also missing from NEPA analyses are meaningful looks at things like
extreme heat, sea level rise, coastal and inland flooding, and severe
weather events. Examining all the potential climate change effects are
critical to a full and meaningful examining of environmental justice
impacts as well. A recent EPA report, Climate Change and Social
Vulnerability in the United States: A Focus on Six Impacts, found that
Black and African American individuals are projected to face higher
impacts of climate change for all six impacts analyzed in the report,
compared to all other demographic groups.\7\ The report also noted that
Hispanic and Latino individuals are about 50% more likely to currently
live in areas with the highest estimated increases in traffic delays
due to increases in coastal flooding.\8\
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\7\ EPA. 2021. Climate Change and Social Vulnerability in the
United States: A Focus on Six Impacts. U.S. Environmental Protection
Agency, EPA 430-R-21-003.
\8\ Id.
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Climate change is the quintessential environmental impact. It is
long settled that agencies consider not only the impacts of a project
on climate, but also the impacts of climate on species and critical
infrastructure.\9\ The failure to clarify exactly how agencies should
consider these puts communities, critical infrastructure, and taxpayer
dollars at risk.
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\9\ See, e.g WildEarth Guardians v. Zinke, 368 F. Supp.3d 41 (Dist.
D.C. 2019)(finding BLM's failure to quantify greenhouse gas emissions
that were reasonably foreseeable effects of oil and gas development on
public land, during the leasing stage of the development process, was
arbitrary and capricious); Pac. Coast Fed. of Fishermen's Ass'ns v,
Gutierrez, 606 F.Supp.2d 1122, 1184 (E.D. Cal. 2008) (rejecting NEPA
analysis based on NMFS' ``total failure to address, adequately explain,
and analyze the effects of global climate change on the species.'')
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The Phase Two Regulations clarify that ``agencies should consider
reasonably foreseeable future climate conditions on affected areas
rather than merely describing general climate change trends at the
global or national level.'' \10\ CEQ directs that a NEPA analysis
``should incorporate forward looking climate projections rather than
relying on historical data alone.'' \11\ Also, the description of
baseline conditions and reasonably foreseeable trends in an analysis
should be incorporated into to an agency's ``analysis of environmental
consequences and mitigation measures.''
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\10\ 88 Fed. Reg 49967, 49949 (July 31, 2023).
\11\ Id.
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3. The Phase Two Regulations Fix Problems Created by the 2020
Regulations.
The 2020 Regulations made several changes that undermined NEPA and
its purpose and made it more difficult for affected communities to
participate in the NEPA process. The Phase Two Regulations fix these
problems in several ways. The Phase Two Regulations remove the barriers
to community participation by eliminating the changes around the bond
requirement, the comment specificity requirements, and the exhaustion
requirements. The Phase Two Regulations also remove language that
undermines the purpose of NEPA, which is better decisions, not merely
more paperwork.
Many of the changes made in the 2020 Regulations reflected a view
that the NEPA process is merely a paperwork exercise with minimal
connection to substantive environmental protection. But the text of the
law explains that NEPA's purpose is to ``declare a national policy
which will encourage productive and enjoyable harmony between man and
his environment; to promote efforts which will prevent or eliminate
damage to the environment and biosphere and stimulate the health and
welfare of man.'' \12\
---------------------------------------------------------------------------
\12\ Id.
---------------------------------------------------------------------------
The Phase Two Regulations make clear the linkages between our
national environmental policies and the NEPA process,\13\ emphasize
federal agencies' responsibilities to interpret and administer their
policies and regulations and authorizing legislation in accordance with
NEPA's policies and the CEQ regulations,\14\ and restore the mandate to
comply with the Act ``to the fullest extent possible.'' \15\ The Phase
Two Regulations also rightly reject the assertion from the 2020
Regulations that the purpose and function of NEPA is satisfied if the
agencies consider information that is presented through the
environmental impact assessment process and if the public is informed
of the process. In fact, the purpose of NEPA is not just to consider
information--even good quality information--but to act on it. And the
public wishes to participate in the process, not just be informed.
---------------------------------------------------------------------------
\13\ 88 Fed. Reg. at 49968.
\14\ Id.
\15\ Id. at 49968.
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The Phase Two Regulations correctly restore to federal courts
questions related to bonds, exhaustion, ripeness, remedies, causes of
actions and defenses, and other issues associated with litigation.
These limitations overstepped CEQ's authority in order to limit the
ability of communities to challenge bad NEPA environmental reviews in
court. CEQ has appropriately restored these questions of administrative
law to the courts.
The 2020 Regulations narrowed the factors agencies should consider
when determining the appropriate level of environmental review for a
federal action. The Phase Two Regulations seek to reinstate
``intensity'' as a factor in determining significance. The Phase Two
Regulations also will restore the broader definition of ``context'' in
determining significance, which is important to ensure full and fair
consideration of an action's indirect and cumulative impacts.
In sum, the CEQ has been carrying out its duties to fulfill that
the National Environmental Policy Act's purpose ``to use all
practicable means and measures, including financial and technical
assistance, . . . to foster and promote the general welfare, to create
and maintain conditions under which man and nature can exist in
productive harmony, and fulfill the social, economic, and other
requirements of present and future generations of Americans.'' \16\ In
the Phase Two Regulations, CEQ is adding much needed certainty to the
environmental review process under NEPA taking a welcome first step
towards ensuring that critical infrastructure is built not only
quickly, but equitably, with an eye towards ensuring taxpayer dollars
are spent responsibly.
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\16\ 42 U.S.C. 4331(a).
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LOWER SNAKE RIVER RESTORATION
Salmon are in crisis. Up and down the West Coast, salmon
populations are dwindling, commercial, recreational, and tribal
fisheries are closing, and the chances of recovery appear to be
shrinking. In the Columbia-Snake River system, once the primary source
for salmon in the Pacific Northwest, four federal dams on the Lower
Snake River are pushing those populations to the brink of extinction.
For more than two decades, conservation and fishing groups have called
for breaching those dams in order to save the region's salmon and
steelhead. Courts have found five separate biological opinions for dam
operations to be fundamentally flawed for failing to adequately
consider the impact of the dams on salmon. In the intervening years,
the necessity and feasibility of dam breaching has only become clearer.
But salmon cannot wait much longer. We must restore the Lower Snake
River before it is too late.
1. Salmon Recovery in the Columbia River Basin
The Columbia River Basin was historically one of the most
productive salmon fisheries in the world. Estimates suggest that 7.5
million to 16 million salmon and steelhead historically returned to
spawn across the Columbia River Basin every year.\17\ Now, less than
250,000 wild salmon and steelhead make that same journey. The decline
is even worse on the Snake River, a tributary which traditionally
produced a significant portion of the Columbia River Basin's salmon. Of
the more than 2 million salmon that used to spawn in the Snake River,
just 40,000 do today. Thirteen species of Columbia and Snake River
Salmon are currently listed under the Endangered Species Act as
threatened or endangered. Since Snake River Sockeye were listed in
1991, the Northwest has spent nearly $20 billion on salmon recovery,
and yet wild salmon populations continue to stagnate and decline. Put
simply, the status quo is failing salmon, Tribal Nations, and the
entire region.
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\17\ NOAA & NMFS. September 30, 2023. Rebuilding Interior Columbia
Basin Salmon and Steelhead. https://www.fisheries.noaa.gov/resource/
document/rebuilding-interior-columbia-basin-salmon-and-steelhead
---------------------------------------------------------------------------
2. The Columbia River Basin Tribes and Salmon
Salmon have held a position of central importance to the Indigenous
people in the Pacific Northwest since time immemorial. For millennia,
the ancestors of today's Columbia River Treaty Tribes (the Yakama, Warm
Spring, Umatilla, and Nez Perce) and other Tribal Nations hunted,
gathered, and fished within the basin. Of all their traditional foods,
``salmon was the most important.'' \18\
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\18\ Meyer Resources. Developed for the Columbia River Inter-Tribal
Fish Commission. April 1999. Tribal Circumstances and Impacts of the
Lower Snake River Project on the Nez Perce, Yakama, Umatilla, Warm
Springs and Shoshone Bannock Tribes. https://critfc.org/wp-content/
uploads/2021/10/circum.pdf
---------------------------------------------------------------------------
When each of the four Columbia River Basin Tribes signed treaties
with United States in 1855, they explicitly reserved their right to
fish in perpetuity. They did this while under considerable pressure and
while ceding significant portions of their traditional territory to the
United States. Provisions in each of the four treaties contains nearly
identical language reserving to the Tribes ``the exclusive right of
taking fish in all the streams where running through or bordering said
reservation is further secured to said Indians: as also the right of
taking fish at all usual and accustomed places in common with citizens
of the territory.'' \19\
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\19\ U.S.-Nez Perce Indians. Treaty between the United States of
America and the Nez Perce Indians. June 11, 1855. 12 Stat. 957.
---------------------------------------------------------------------------
In the years since the treaties were signed, salmon populations
have declined dramatically. Tribal members today can harvest only a
fraction of their historical catch of salmon, despite years of effort
by the Tribes, state and federal agencies, and others to raise
additional fish in hatcheries, restore habitat, increase spill over the
dams, and even barge juvenile salmon below the dams. Everything has
been tried to recover the salmon that are guaranteed to the Tribes,
except for breaching the dams.
3. The Impact of the Four Lower Snake River Dams
The four federally owned and operated dams on the Lower Snake River
are the greatest impediments to salmon recovery in the Columbia River
Basin. These four dams (Ice Harbor, Lower Monumental, Little Goose, and
Ice Harbor) are part of the Federal Columbia River Power System of 31
total dams that provide power, navigation, and other services to the
Pacific Northwest.\20\ However, those benefits have come at the
explicit cost of reduced salmon populations and hardship for the Tribal
nations who depend on them.
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\20\ Northwest Power and Conservation Council. A Brief History of
the Federal Columbia River Power System and Power Planning in the
Northwest. April 22, 2011. https://www.nwcouncil.org/media/
filer_public/dc/c3/dcc38ff6-6572-4ce6-ac1d-395eb9c9e3a3/2011_10.pdf
---------------------------------------------------------------------------
The construction of the Lower Snake River dams transformed 140
miles of free-flowing river into a series of large, slow-moving,
reservoirs that prevent countless salmon from reaching their spawning
habitat. Salmon that hatch in these waters must make it past not just
the four Lower Snake River Dams but also the four Lower Columbia River
Dams in order to reach the ocean, and then make it past those eight
dams again to return as adults. According to the National Oceanic and
Atmospheric Administration and National Marine Fisheries Service,
direct and indirect impacts from hydropower infrastructure are the
largest limiting factor for ten of the 16 Interior Columbia River
stocks, including all of the Snake River stocks.\21\ Juvenile salmon
that enter the Lower Snake River regularly encounter lethally hot
water, an abundance of predators, and other stressors.\22\ Those that
do make it through the dams do so by expending much more energy and
over a much longer time frame than they would have in a natural river,
leading to delayed mortality lower down the river or in the ocean.
Adult fish face additional challenges navigating back up the river and
past the dams, further reducing the number of salmon who survive the
journey to the ocean and back. The Lower Snake River dams also drowned
countless areas that were used by Tribes for generations to fish, hunt,
gather foods, practice ceremonies, bury their ancestors, and live the
lives they wished to live.\23\
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\21\ NOAA & NMFS. September 30, 2023. Rebuilding Interior Columbia
Basin Salmon and Steelhead. https://www.fisheries.noaa.gov/resource/
document/rebuilding-interior-columbia-basin-salmon-and-steelhead
\22\ 68 Scientists send letter to NW policymakers on Snake River
salmon and dams. February 22, 2021. https://www.orcaconservancy.org/
blog/68-scientists-send-letter-to-nw-policymakers-on-snake-river-
salmon-and-dams
\23\ Meyer Resources. Developed for the Columbia River Inter-Tribal
Fish Commission. April 1999. Tribal Circumstances and Impacts of the
Lower Snake River Project on the Nez Perce, Yakama, Umatilla, Warm
Springs and Shoshone Bannock Tribes. https://critfc.org/wp-content/
uploads/2021/10/circum.pdf
---------------------------------------------------------------------------
Breaching the dams is not only a matter of biological imperative
for the salmon, but also a necessity if the government is to honor the
treaties it signed with Columbia River Basin Tribes.
4. A Comprehensive, Basin-Wide Solution for Salmon
Restoring salmon and steelhead in the Columbia River Basin to
healthy and harvestable levels will require a comprehensive, basin-wide
solution with breaching the Lower Snake River dams at its center. Dam
breaching would draw down the reservoirs and allow the river to
naturally reestablish itself around the remaining powerhouse and
associated structures. It would ease the migration of salmon up and
down the river and increase access to more than 5,000 miles of pristine
cold-water spawning habitat. Other important actions that will help
restore salmon populations if implemented alongside breaching include
reducing predation and competition, restoring habitat and water
quality, and reintroducing stocks into currently blocked areas.
Breaching the dams should also be accompanied with investments to
replace and improve upon the services currently provided by the dams
such as electricity generation, transportation via barges, and
irrigation. Proposals from Rep. Mike Simpson (R-ID) \24\ and a report
from Gov. Jay Inslee (D-WA) and Sen. Patty Murray (D-WA) \25\ have
shown that the services the dams currently provide can be replaced.
Other studies have even shown that their benefits such as electricity
can be improved upon with alternatives that would be even more reliable
than hydropower and at minimal cost.\26\ Earlier this year, the State
of Washington enacted a budget with funding for studies to help plan
for the replacement of the transportation, energy, and irrigation
services provided by the dams. It is no longer a question of if we can
replace the dams, but rather how best to replace the services provided
by the dams on a timeline that avoids extinction of salmon and
steelhead.
---------------------------------------------------------------------------
\24\ Rep. Mike Simpson. The Columbia Basin Initiative. https://
simpson.house.gov/salmon/
\25\ Lower Snake River Dams: Benefit Replacement Report.
Commissioned by Sen. Murray & Gov. Inslee. August 2022. https://
governor.wa.gov/sites/default/files/2022-11/LSRD%20Benefit
%20Replacement%20Final%20Report_August%202022.pdf
\26\ Energy Strategies. Commissioned by NW Energy Coalition. Lower
Snake River Dams Power Replacement Study. March 2018. https://
nwenergy.org/featured/lsrdstudy/
---------------------------------------------------------------------------
5. Conclusion
The Columbia River Basin, once one of the most productive river
systems in the world for salmon, is dangerously close to losing them
altogether. Continuing with the status quo is effectively choosing
extinction. It is time to choose a better future for the region that
includes restoring the Lower Snake River, honoring the treaties, saving
salmon, and securing prosperity for the entire region.
______
Questions Submitted for the Record to Ms. Jill Heaps, Senior Attorney,
Earthjustice
Questions Submitted by Representative Gosar
Question 1. Please list any current or pending litigation that
Earthjustice is involved in against the Federal Government. This
includes, but is not limited to, litigation in which Earthjustice
serves as counsel and/or represents a party to the litigation. As
applicable, please disclose the case name, docket number, court, and
subject matter of the litigation.
Answer. Earthjustice is a non-profit public interest law
organization providing legal counsel and representation to clients, as
many other non-profit public interest law organizations so provide to
their clients. As indicated in my disclosure form, dated September 14,
2023, Earthjustice is not a party in any pending litigation to which
the federal government is a party.
Questions Submitted by Representative Grijalva
Question 1. Based on your experience as an attorney, can you speak
to specific instances in which NEPA regulations have successfully
protected a community from harm?
Answer. As I explained in my written testimony, NEPA litigation
challenging the Army Corps' plan to widen and deepen the Industrial
Canal helped protect communities in New Orleans from catastrophic toxic
contamination during Hurricane Katrina. The court determined that the
Army Corps of Engineers failed to take a hard look at the impacts of
placing contaminated sediment in the wetlands adjacent to the Lower 9th
Ward, given the whole area is susceptible to hurricanes. Holy Cross
Neighborhood Ass'n v. U.S. Army Corps of Eng'rs, 455 F. Supp.2d 532
(E.D. La. 2006).
The Corps' additional environmental review was also insufficient.
The Corps proposed a deep-draft dredging project on the Industrial
Canal. However, the Industrial Canal serves to connect the Mississippi
River and the Mississippi River--Gulf Outlet, which was no longer open
to deep-draft traffic. The community again challenged the NEPA analysis
and the Corps' failure to analyze a shallow-draft dredging project, as
required by NEPA regulations. 40 C.F.R. Sec. 1502.14. The court agreed
with the community and found the NEPA alternatives analysis
insufficient. Holy Cross Neighborhood Ass'n v. U.S. Army Corps of
Eng'rs, 2011 WL 4015694 (E.D. La. 2011). The NEPA litigation saved the
community from the harms of disposing millions of tons of contaminated
sediment and from having their taxpayer dollars spent on a project that
was not needed.
Also in Louisiana, residents in St. Tammany Parish concerned about
aggregate wetland loss due to unchecked development were able to use
NEPA to protect their community. See O'Reilly v. U.S. Army Corps of
Eng'rs, 477 F.3d 225 (5th Cir. 2007). The Fifth Circuit required the
Army Corps of Engineers to take a hard look at cumulative wetland loss
and its consequences, including flooding and stormwater runoff, as the
CEQ regulations require. 40 C.F.R. Sec. 1508.7. The court also
concluded that the Corps failed to demonstrate how the mitigation
measures would succeed and render the adverse effects insignificant.
While the court's decision about mitigation measures were not yet
incorporated into the CEQ regulations, the proposed Phase 2 regulations
aim to ensure that mitigation measures identified in a NEPA process are
completed and reduce the environmental impacts of the action.
Question 2. Can you speak to instances in which a failure to follow
a comprehensive environmental review process has negatively impacted a
community?
Answer. The Army Corps of Engineers' failure to consider climate
change impacts when approving deep-draft dredging of the lower
Mississippi River is having disastrous consequences for Louisiana
residents and threatens the drinking water of nearly 1 million people.
A wedge of saltwater is making its way up the Mississippi River from
the Gulf of Mexico and is slated to reach the New Orleans metro area's
Algiers plant by October 22, 2023. If the saltwater wedge reaches the
drinking water intake, the water supply from New Orleans will likely
become undrinkable.\1\ When evaluating deep draft dredging, the Corps
recognized that such dredging would facilitate saltwater intrusion into
the Mississippi River. In the Corps' latest NEPA analysis of the
dredging from 2018, the Corps acknowledged that the dredging would
force water plants to ``shut down operations as saltwater reaches their
water intake facilities.'' \2\ The Corps also acknowledged, ``For
communities at the lower reaches of the river, this shutdown could last
longer than their storage reserves can accommodate.'' \3\ However, the
Corps only acknowledged that the saltwater intrusion issue could affect
residents of Plaquemines Parish. The Corps failed to analyze how
climate change-driven changes in precipitation could lead to drought
conditions, meaning that saltwater intrusion could leave nearly 1
million people without safe drinking water. The Corps' mitigation plan
to protect drinking water from encroaching saltwater was an underwater
sill, which was overtopped on September 20.\4\ The Corps never
identified the risk of the sill being overtopped or whether the plan to
raise the sill, but leave a ``notch'' in the saltwater barrier sill to
allow continued deep draft navigation, will actually protect affect
drinking water intakes.\5\ This impending drinking water crisis in New
Orleans stems directly from the Corps' lax NEPA review.
---------------------------------------------------------------------------
\1\ Mike Smith, ``Pricey pipeline plan to protect New Orleans
drinking water detailed. Officials say there's time,'' NOLA.com, Oct.3,
2023.
\2\ U.S. Army Corps of Engineers, ``Mississippi River Ship Channel
Gulf to Baton Rouge, LA, Integrated General Reevaluation Report and
Supplemental Environmental Impact Statement,'' April 2018, Page 2-23
available at https://www.mvn.usace.army.mil/Portals/56/docs/Projects/
Miss%20Deep/ 01_MRSC_Main%20Report.pdf.
\3\ Id.
\4\ See Smith, ``Pricey pipeline plan to protect New Orleans
drinking water detailed. Officials say there's time.''
\5\ See id. (``The Corps is now raising the sill to 30 feet below
the surface, but will keep a notice in the middle at the original
depth'' to allow enough draft for passing ships.'').
---------------------------------------------------------------------------
In Western New York, the U.S. Fish and Wildlife Service completed
an environmental assessment and issued a Finding of No Significant
Impact for an industrial wastewater pipeline through the Iroquois
National Wildlife Refuge. The purpose of the pipeline is to incentivize
industrial manufacturers to build on a 1,250 acre ``mega industrial
site'' directly adjacent to the Tonawanda Seneca Nation's reservation.
During the NEPA process, the U.S. Fish and Wildlife Service failed to
conduct any outreach to the Tonawanda Seneca Nation and excluded them
from the NEPA process. The NEPA process also failed to examine the
cumulative impacts of the industrial development on the Tonawanda
Seneca Nation, the local wildlife, and the environment. The NEPA
process also failed to examine whether the soils in the Iroquois
National Wildlife Refuge were appropriate for directional drilling and
examine the risk to the Refuge from spills of drilling fluid. Despite
the Tonawanda Seneca Nation asking the U.S. Fish and Wildlife Service
and Secretary of the Interior Deb Haaland to withdraw the pipeline
permit until they consulted with the Tonawanda Seneca Nation and
completed a full environmental review, the U.S. Fish and Wildlife
Service rejected that request and allowed the drilling to begin in late
July 2023. In less than two months of drilling, there have already been
two major spills of fracking fluid that have entered wetlands in the
Iroquois National Wildlife Refuge and have had untold damage to the
Refuge and the Tonawanda Seneca Nation, whose citizens use and enjoy
the Refuge. The drilling is currently paused, but the U.S. Fish and
Wildlife Service has refused to rescind the permit.
In New Orleans after Hurricane Katrina, the Department of Veterans
Affairs wanted to build a new hospital. The VA entered into an
agreement with Mayor Ray Nagin to obtain a large plot of land where it
wanted to build the hospital, even though the land encompassed an
entire neighborhood. The neighborhood was primarily populated with
Black residents and contained gabled Victorian homes constructed in the
late 19th century. After the agreement was executed, the VA began the
NEPA process for the new hospital. The VA claimed that the new
hospital, which would have 200 beds, needed to be built on 60 acres of
land, even though other local hospitals with the same number of beds
were built on just a few acres. Although community groups came forward
with other options where the hospital could be built or abandoned
hospitals that could be modernized, the VA's NEPA analysis ignored
those alternatives and concluded the preferred land was the only place
where the hospital could be built. The neighborhood was destroyed, and
the residents were relocated so that the hospital could be built in the
VA's preferred location.
In Erie, Pennsylvania, the failure to follow a comprehensive
environmental review process for a highway expansion in downtown Erie
has been devastating for local residents. The Bayfront Parkway
separates Erie residents living downtown from the bus station, library,
restaurants, a museum, and other recreational opportunities. Because
many drivers use the Bayfront Parkway as a short-cut across the city,
crossing the road was dangerous for pedestrians and cyclists. In the
process to reimagine the Bayfront Parkway, many residents were eager to
see a pedestrian and cyclist-friendly corridor with slower traffic and
a narrower roadway. Instead, the Pennsylvania Department of
Transportation, backed by local business interests, proposed an
expanded roadway, to move cars across the waterfront quicker but making
it even more perilous for pedestrians and cyclists. To make up for the
increased traffic, the Department of Transportation proposed that
someone should build a pedestrian bridge. But the pedestrian bridge was
unfunded and not a part of the widening plan, and there was no plan of
who would maintain the bridge during the snowy winter--or that
residents would use the pedestrian bridge. The residents geared up to
participate in the public comment process for the environmental
assessment and share their frustration in the hopes of swaying the
decision. Instead, the Federal Highway Administration signed off on
``downscoping'' the NEPA document from an environmental assessment to a
categorical exclusion--and then skipped the public review process and
approved the project. The Pennsylvania Department of Transportation has
begun expanding the roadway, which will cut off the downtown Erie
residents from the waterfront.
Question 3. How does and can NEPA play a positive role in advancing
our energy development and responsibly utilizing American tax dollars?
Answer. NEPA plays a positive role in advancing our energy
development and responsibly using tax dollars. First, at its heart,
NEPA's mandate that agencies ``look before they leap'' and engage in a
robust public process means that agencies must research alternatives
and quantify environmental harms to make more informed, better
decisions. NEPA's requirement that agencies examine cumulative impacts
of the action together with past, present, and reasonably foreseeable
future actions forces agencies to take the long view in approving
projects, like energy development, which may look individually like a
minor issue but when taken collectively cause a significant impact.
This directs agencies towards approving a suite of energy development
projects that, taken together, are better for our communities, our
environment, and our country.
NEPA's requirements that agencies examine the direct, indirect, and
cumulative impacts of the project on climate change, while also
examining the impact climate change may have on the project can also
save taxpayers money in the long run. We know that costs to adapt to
climate change and mitigate climate change's effects will run in the
billions of dollars. NEPA incentivizes smart, long term financial
choices that take into account not just financial benefits of energy
development, but the financial costs of climate harms to which the
development may cause or contribute.
Question 4. My friends on the other side of the aisle have claimed
that litigation slows energy projects. What effect does NEPA have on
litigation of major energy projects?
Answer. The 2022 Clean Power Annual Market Report identified causes
of delays in clean power projects. The report acknowledges that ``Solar
accounts for 68% of delayed clean power capacity, due primarily to
difficulty sourcing panels as a result of trade restrictions.'' \6\
Wind projects represent 18% of total delays, and ``causes of wind
delays range from ongoing supply chain constraints to grid
interconnection delays.'' \7\ The report did not identify NEPA
litigation as a significant cause of delays in implementing clean
energy projects.
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\6\ American Clean Power, Clean Power Annual Market Report 2022,
https://cleanpower.org/wp-content/uploads/2023/05/2022-ACP-Annual-
Report_Public.pdf
\7\ Id.
---------------------------------------------------------------------------
NEPA encourages meaningful community engagement and public
participation early and often during the NEPA review process. My
experience with NEPA has taught me that when there is early engagement
and meaningful opportunities to participate in decision-making, parties
can reach consensus, make better decisions, and get projects built
faster. Recent research by MIT bears this out. A 2022 MIT study
examined fifty-three large-scale clean energy projects that were
delayed or canceled.\8\ The study concluded that ``early engagement
with potential local opponents can avoid extended delays or project
cancellations.'' Robust, upfront engagement in Maryland was key to
securing both approval for 1654 MW of offshore wind and commitments to
ensure that the projects are constructed and operated in a responsible
manner.
---------------------------------------------------------------------------
\8\ Lawrence Susskind et. al. ``Sources of opposition to renewable
energy projects in the United States,'' Energy Policy, vol 165, June
2022 available at https://www.sciencedirect.com/science/article/pii/
S0301421522001471.
---------------------------------------------------------------------------
Our experience at Earthjustice shows that permitting processes that
include thorough, upfront engagement can actually speed up the
transmission build-out and ensure that we are developing in a way that
does not cause undue harm to communities, sensitive ecosystems, and
cultural resources. The proposed Phase 2 regulations promote strong
environmental review and meaningful public engagement processes to
avoid harming communities while effectively speeding up development of
much-needed infrastructure to enable a rapid clean energy transition.
Question 5. How have President Biden's Permitting Action Plan and
investments in the Inflation Reduction Act to help expedite federal
agency permitting impacted timelines for completing environmental
reviews and permitting processes? How are CEQ's NEPA Phase 2 revisions
expected to affect permitting timelines?
Answer. The Inflation Reduction Act reflects an unprecedented
national commitment to clean power and is the largest policy investment
in clean energy on record. As the 2022 Clean Power Annual Market Report
predicts, ``The IRA is set to catalyze clean energy growth, ultimately
more than tripling annual installations of wind, solar, and battery
storage by the end of the decade.'' \9\
---------------------------------------------------------------------------
\9\ American Clean Power, Clean Power Annual Market Report 2022,
https://cleanpower.org/wp-content/uploads/2023/05/2022-ACP-Annual-
Report_Public.pdf
---------------------------------------------------------------------------
The Phase 2 regulations direct agencies to actively reach out to
Tribal governments and affected and interested members of the public.
The Phase 2 regulations direct agencies to ``conduct early engagement
with likely affected or interested members of the public (including
those who might not be in accord with the action).'' By directing
agencies to engage early with those who oppose the project or action,
the Phase 2 regulations will reduce the likelihood that concerns can be
addressed during the NEPA process, a better decision will be made, and
permitting timelines can be sped up.
Question 6. Republicans have claimed that the Biden administration
has permitted fewer renewable energy projects than the Trump
administration. Is this claim accurate?
Answer. This claim is not accurate, as is reflected in the chart
from the 2022 Clean Power Annual Market Report Mr. Loyola included in
his testimony. The chart reflects the following ``Annual Clean Power
Capacity Additions (MW)''
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
In the first two years of President Biden's term, his
administration permitted 55,000 MW of clean power. of the Trump
administration permitted approximately 67,000 MW of clean power over
four years. On an annual basis, President Trump's administration
permitted approximately 16,750 MW per year during his term, compared to
27,750 MW per year during President Biden's administration.
Question 7. Is there anything else you would like to add?
Answer. Yes, when agencies and project proponents meaningfully
involve the affected community in the decision-making process and the
NEPA review, we have seen outcomes that work for everyone. For example,
in North Charleston, South Carolina, the City of North Charleston, the
South Carolina State Ports Authority, and community groups like
Lowcountry Alliance for Model Communities came together to during a
NEPA process to ensure the community received mitigation for the
negative impacts from development of a new container terminal at the
former Navy base. After negotiations, the Port Authority made a $4
million mitigation commitment to impacted North Charleston residents,
who used the funds to hire experts to assist with environmental justice
projects around air pollution, brownfields redevelopment, and other
issues related to community health and safety. Involving the community
early in the process and mitigating negative effects of projects are
two key points in the Phase 2 Regulations. The North Charleston example
shows how this approach can work to lead to better projects, stronger
communities, and faster project completion.
Questions Submitted by Representative Huffman
Question 1. As you mentioned in your testimony, 13 species of
salmon or steelhead in the Columbia River Basin are currently listed
under the Endangered Species Act, including all remaining populations
in the Snake River. The Columbia River Basin Treaty Tribes reserved the
right to fish for these salmon forever in their treaties with the
United States government, and yet the Nez Perce Tribe recently found
that many sub-populations are at imminent risk of extinction. Can you
elaborate on how the declines in salmon populations have impacted
Tribes and the consequences of salmon extinction for those Tribes?
Answer. The four Columbia River Basin Treaty Tribes (now known as
the Yakama, Warm Springs, Umatilla, and Nez Perce) and other Tribal
Nations have hunted, gathered, and fished within the Columbia River
Basin since time immemorial. Of all the traditional foods eaten by the
Tribes, ``salmon was the most important.'' \10\ But salmon are not just
a source of sustenance for Indigenous peoples in the Pacific Northwest,
they are a critical component of their culture and life ways. According
to Donald Sampson, a former executive director of the Confederated
Tribes of the Umatilla Indian Reservation and Columbia River Inter-
Tribal Fish Commission, ``Salmon are the centerpiece of our culture,
religion, spirit, and indeed, our very existence . . . Our people's
desire is simple--to preserve the fish, to preserve our way of life,
now and for future generations.'' \11\ To guarantee their ability to
fish for salmon in perpetuity, each of the four Columbia River Basin
Treaty Tribes reserved the right to fish at ``all usual and accustomed
places'' in treaties with the United States in 1855.
---------------------------------------------------------------------------
\10\ Meyer Resources. Developed for the Columbia River Inter-Tribal
Fish Commission. April 1999. Tribal Circumstances and Impacts of the
Lower Snake River Project on the Nez Perce, Yakama, Umatilla, Warm
Springs and Shoshone Bannock Tribes. https://critfc.org/wp-content/
uploads/2021/10/circum.pdf
\11\ Id.
---------------------------------------------------------------------------
Since the construction of the four lower Snake River dams, wild
salmon populations have declined precipitously. Just a fraction of the
fish that used to return to the Columbia River Basin each year do so
today, severely limiting the number of salmon that can be harvested by
Tribal members. Two reports published by the Columbia River Inter-
Tribal Fish Commission--the 1999 Tribal Circumstances Report and the
2019 Tribal Perspectives Report--describe the importance of salmon and
other native fish species to the Columbia River Basin Treaty Tribes and
the Shoshone-Bannock Tribe and the impacts that the four lower Snake
River dams have had on the fisheries, cultures, and economies of those
Tribes. Importantly, they do so by highlighting the voices of Tribal
members themselves.
Below is a table from the 1999 report that reveals the stark
declines in salmon harvested by each of the Tribes from contact with
Europeans to the present day.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The impact of these immense declines have been great, affecting
not only food resources but the cultural, social, and economic well-
being of the Tribes. According to Chris Walsh, a Yakama Psycho-Social
Nursing Specialist: ``If you lose your foods, you lose part of your
culture--and it has a devastating effect on the psyche. You also lose
the social interaction. When you fish, you spend time together--you
share all the things that impact your life--and you plan together for
the next year. Salmon is more important than just food.'' \12\ Today,
Tribal members who would otherwise fish for economic or cultural
benefits struggle to do so. Current poverty rates within the Columbia
River Basin Treaty Tribes far exceed the national average and are
actually higher for three of the four Tribes than they were in
1999.\13\ The decrease in salmon populations already experienced by the
Tribes has been devastating.
---------------------------------------------------------------------------
\12\ Meyer Resources. Developed for the Columbia River Inter-Tribal
Fish Commission. April 1999. Tribal Circumstances and Impacts of the
Lower Snake River Project on the Nez Perce, Yakama, Umatilla, Warm
Springs and Shoshone Bannock Tribes. https://critfc.org/wp-content/
uploads/2021/10/circum.pdf
\13\ Columbia River Inter-Tribal Fish Commission. June 2019. Tribal
Perspectives Report. https://critfc.org/documents/tribal-perspective-
report/
---------------------------------------------------------------------------
Salmon extinction is not an option for the Columbia River Basin
Treaty Tribes. In 2021, the Nez Perce Tribe presented a call to action
to the Northwest Power and Conservation Council based on new analyses
that found 42% of Snake River spring/summer Chinook populations are at
or below quasi-extinction levels.\14\ It is imperative that we act now
to avoid an irreversible decline in salmon abundance. The United States
must do everything in its power to stop salmon extinction to save these
incredible species and honor its treaty obligations. That includes
breaching the lower Snake River dams.
---------------------------------------------------------------------------
\14\ Nez Perce Tribe Department of Fisheries Resource Management.
Snake Basin Chinook and Steelhead Quasi-Extinction Threshold Alarm and
Call to Action. May 2021. https://www.nwcouncil.org/sites/default/
files/2021_05_4.pdf
---------------------------------------------------------------------------
______
Dr. Gosar. I thank the gentlewoman.
I now recognize Mr. Simms for his 5 minutes.
STATEMENT OF SCOTT SIMMS, CEO AND EXECUTIVE DIRECTOR, PUBLIC
POWER COUNCIL, PORTLAND, OREGON
Mr. Simms. Good morning, Chairman Gosar, Ranking Member
Stansbury, and members of the Subcommittee. My name is Scott
Simms, and I serve as the CEO and Executive Director of the
Public Power Council, or PPC.
PPC represents a majority of non-profit, consumer-owned
electric utilities operating in rural and urban areas of the
great Pacific Northwest that purchase electricity and
transmission services from the Bonneville Power Administration,
or BPA. And they collectively pay 70 percent of BPA's $3.9
billion annual revenue requirement.
Our utilities fund the nation's largest ESA effort. We have
a keen interest in ensuring that fish mitigation measures are
science based, cost effective, and have a clear nexus with the
operations of the Federal Columbia River Power System, or
FCRPS.
We are fully committed to paying our share of mitigation
responsibilities, but no more and no less. This balance is what
enables PPC members to offer affordable, reliable, clean, and
environmentally responsible power to the communities they
serve.
Unfortunately, the FCRPS operations have been mired by
long-running litigation. Roughly 13 months ago, the Federal
District Court judge overseeing litigation in the Columbia
Basin operations approved a stay while the CEQ engaged the
Federal Mediation and Conciliation Service, FMCS, to resolve
the issues being litigated. While the stay was set to expire on
August 31, 2023, the U.S. Government and the plaintiffs
requested and the court subsequently granted a 60-day extension
of the stay until October 31, 2023.
So, PPC entered the CEQ-led negotiations with guarded
optimism that the mediation process would be finally pursued in
a fair, confidential, and collaborative manner led by skilled
third-party mediators. Regretfully, our experience has been to
the contrary. It has been a frustrating bureaucratic process
with little discussion of new ideas and much less progress
toward regional compromise. Labeling any of this as mediation
was a sham from the beginning, and it is quite an abuse of the
very word.
What CEQ has done is put a thumb squarely on the scale for
certain parties. That was evidenced by the sideboards set for
the stay and litigation and subsequent mediation. PPC has
repeatedly raised new ideas and proposed tangible solutions,
yet no substantive action has come of these efforts because CEQ
refused all offers. At most, we have basically received a pat
on the head.
We have serious concerns that many of the topics being
discussed are likely outside the plaintiffs' areas of
expertise, or, at a minimum, are topics where we have immense
expertise that we could share. In any event, we should be in
these discussions early, not as a last step to sign on. We are
dismayed at what was sold to us as a solutions-based mediation
process.
This is detailed more explicitly in my submitted report,
but let me just share here that we at PPC recruited credible
third-party biologists to point out the serious flaws in a
report CEQ conveniently floated as NOAA's so-called ``latest
science,'' for which CEQ uses as a basis to push a specific
agenda. This new NOAA report, ``Rebuilding Interior Columbia
Basin Salmon and Steelhead,'' has apparently paved over NOAA's
prior decades of established scientific evidence and record.
CEQ probably didn't like us raising the issue of a sudden 180-
degree shift at NOAA, so we were just ignored when we first
raised the issue, and continue to be ignored to this day.
Let me be clear for everyone as a witness here today at
this hearing. This so-called new NOAA report is the flimsy
house of cards CEQ built and is trying to keep upright in order
to justify its biased approach in this process.
The challenges of supplying affordable, reliable
electricity services, which is now widely considered a basic
need for human survival, is only becoming more difficult for
today's utilities. We also have a growing concern about
adequately meeting the needs of vulnerable communities, which
are intensifying in rural and urban areas alike.
As I work toward my conclusion, let me connect some dots
here. While this Administration contemplates operational
changes to the dams, I must emphasize that this also has a
devastatingly detrimental impact on system reliability.
Ironically, it would also have a huge negative impact on
meeting the Administration's climate goals by reducing the
amount of clean, renewable hydropower produced. Simply put, any
operational changes this Administration might suggest that
would breach dams, increase spill, or draw down water would
have grave implications for communities in the Northwest.
A crucial component of BPA's predominant hydropower fleet
is a target by some in this process, and that is the Lower
Snake River dams. These dams are some of the biggest producers
and lowest cost hydro units in BPA's Federal system. They are
an invaluable resource for the entire West, even beyond BPA's
territory. They also help integrate wind and solar power into
the grid and, importantly, come to the rescue when power crises
hit the West, which is a dynamic we are seeing more and more
often, certainly mentioned this morning by Ranking Member
Stansbury.
Despite the invaluable role played by these dams, various
special interests continue to fuel a campaign to devalue and
even destroy them.
Thank you for your leadership in hosting this hearing
today. We greatly appreciate the Committee's focus on this
critical set of issues, and seeking transparency from CEQ for
all Americans. I would gladly answer any questions.
[The prepared statement of Mr. Simms follows:]
Prepared Statement of Scott Simms, CEO & Executive Director, Public
Power Council
Good morning, Chairman Gosar, Ranking Member Stansbury, and members
of the Subcommittee. My name is Scott Simms, and I serve as the CEO and
Executive Director of the Public Power Council (PPC).
PPC represents the majority of the non-profit, consumer-owned
electric utilities in the Pacific Northwest, serving people and
businesses in Washington, Oregon, Idaho, western Montana, and parts of
Nevada and Wyoming. These large and small utilities in rural and urban
areas of the Great Pacific Northwest purchase electricity and
transmission services from the Bonneville Power Administration, or
BPA--the largest Power Marketing Agency of the four under the U.S.
Department of Energy. These consumer-owned utilities collectively pay
70 percent of BPA's $3.9 billion-dollar annual revenue requirement,
with the remainder of BPA's budget covered from sales to others. All of
BPA's consumer-owned utility customers are committed to ensuring BPA
complies with its statutory obligation to provide the lowest possible
rates to consumers consistent with sound business principles.
BPA markets power from 31 federal hydroelectric dams on the
Columbia River and its tributaries and from the Columbia Generating
Station--a nuclear power plant located on the Hanford Site in Eastern
Washington. BPA has more than 15,000 miles of high voltage transmission
lines and 261 substations, operating about 75% of the total
transmission system in the Northwest.
As stewards focused on affordability and reliability of BPA's power
and transmission services, PPC utilities also have a strong
environmental interest and are committed to mitigating the impacts of
Federal Columbia River Power System (FCRPS) operations. As the largest
single contributor to the nation's largest ESA effort, we have a keen
interest in ensuring that fish mitigation measures are science based,
cost effective, and have a clear nexus with the operations of the
FCRPS. Such measures serve dual purposes--they promote the restoration
of the region's valued endangered and threatened species, and
ultimately, reduce the fish and wildlife impacts and costs associated
with FCRPS operations. We are committed to paying our full mitigation
share--no more and no less. This balance is what enables PPC members to
offer affordable, reliable, clean, and environmentally-responsible
power to the communities they serve. Unfortunately, the FCRPS
operations have been mired by long-running litigation. Roughly 13
months ago, the federal district court judge overseeing litigation on
the Columbia Basin System Operations approved a stay, while the Council
on Environmental Quality (CEQ) engaged the Federal Mediation and
Conciliation Service (FMCS) to resolve the issues being litigated.
While the stay was set to expire on August 31, 2023, the U.S.
government and the plaintiffs requested, and the court subsequently
granted, a 60-day extension of the stay, until October 31, 2023.
PPC entered these negotiations with guarded optimism that the
mediation process would be finally pursued in a fair, confidential and
collaborative manner, led by skilled third-party mediators.
Regretfully, our experience has been to the contrary. It has been a
frustrating bureaucratic process with little discussion of new ideas
and much less progress toward a regional compromise. Confidentiality
has been conveniently used to protect ``private caucuses'' between CEQ
and select parties, consistently described by several credible sources
as the states of Oregon, Washington, various Northwest tribes, and
environmental NGO plaintiffs.
Non-sovereign stakeholders have been left in the dark and have not
been equal parties, despite our best efforts to advance new ideas and
share new information, and despite the dire financial and operational
consequences--and even health and human safety risks--we could face
from ill-conceived ``agreements.'' Again, it's worth noting here that
public power utilities pay the lion's share of FCRPS costs and are the
real parties in interest. And yet, we've been walled off from the
conversations between the CEQ and plaintiffs that inevitably involve
future cost obligations of Northwest ratepayers either from further
operational constraints, direct cash outlays--or both. Worse still, it
appears that the U.S. Government is making private piecemeal deals with
one or two parties rather than pursuing the promised balanced,
sustainable solutions designed to bring our region--and the federal
resources we use to keep the lights on--the much needed operational
certainty.
It is critical that you as members of Congress learn about this
dynamic, because, after all, this is an oversight hearing, so here is
my opinion and observation on the process, especially since I have been
through a number of federal and state processes in my 25+ year career
in the Northwest energy industry. Our plea is for you to get involved.
First, branding any of this as ``mediation'' was a sham from the
beginning, with CEQ putting its thumb squarely on the scale for certain
parties. That was evidenced by the ``sideboards'' set for the stay and
subsequent ``mediation.'' I can also tell you that PPC has repeatedly
raised new ideas and proposed solutions. While those have been aired in
two ``private caucuses'' with the federal government, at no time have
they been scheduled for discussion among the broader group, nor has an
anonymous survey been held to assess broader interest. At most, we feel
like we have received a pat on the head and are then expected to sit
quietly and watch.
While we are not among the ``inner circle'' despite being the
obvious funders of any commitments placed on BPA, we have learned from
public sources that some of the favored parties were engaging in
private sessions with the U.S. Government (USG) and even ``exchanging
papers'' in recent months on some of the issues within the broader
agenda. We have serious concerns that these topics are likely outside
the plaintiffs' areas of expertise or, at a minimum, are topics where
we have immense expertise that we could share and, therefore, should be
involved in the discussions early on, not as a last step to ``sign
on.'' We're dismayed at what was sold to us as a solutions-based
mediation process.
A second, especially problematic issue in this process is that we
are uncertain whether the inputs PPC has worked tirelessly to provide
in good faith throughout the many months of work are being reviewed or
considered by the USG. For instance, in our collective utility industry
and river navigation interest efforts to engage in the process, two
detailed reports and a technical letter raising extensive issues and
considerations were among the materials PPC submitted to the USG: one
recent report was a scientific literature review addressing the
``delayed mortality'' hypothesis, and the other report was a
comprehensive study on the potential impacts of breaching, titled:
``Regional & National Impacts Triggered by Breaching Lower Snake River
Dams: Summary of Transportation, Climate and Social Justice Concerns.''
Additionally, a little more than one year ago, PPC submitted (and has
received no response to) a detailed letter citing official technical
and scientific documents that pointed out the many inaccuracies and
shortcomings of NOAA's ``Rebuilding Interior Columbia Basin Salmon and
Steelhead'' draft report, which has been used extensively as a basis
for CEQ's breaching advocacy efforts during the stay in litigation.
My job is to represent the utilities of the Northwest and let me be
clear that the impact of BPA power rates is not a matter of dry
economics for us. It is about the people in our communities and the
ability to supply this human need. The Northwest public power utilities
I represent are not-for-profit organizations dedicated to providing
their communities with affordable, reliable, and environmentally
responsible electricity at cost. Unlike investor-owned utilities, there
are no profit margins or shareholders to absorb increased costs.
Any costs passed to the utility are passed on to the customers, in
many cases, the most economically vulnerable communities in the
Northwest. Given our diverse membership, this hits differently
throughout the region. But whether urban or rural, and no matter which
Northwest state, our communities and their utilities are feeling the
pressure. PPC member utilities aren't monolith, faceless corporations.
They are non-profit entities run by the communities they serve and
today are managing far more than the bystander might see. For instance,
our utilities are handling such critical issues as balancing tens of
millions of dollars unpaid bills from tens of thousands of customers.
They also are trying to keep the power flowing while addressing needs
of vulnerable communities, including Tribal communities throughout the
Columbia River Basin and in places physically distant from the Columbia
River, but still highly dependent on its reliable, low-cost power.
Every utility we work with has a list of gut-wrenching stories in which
families and businesses are making incredibly difficult decisions--such
as choosing to pay a past-due bill or choosing to serve their kids a
meal.
Meanwhile, the challenges of supplying affordable, reliable
electricity services--which is now widely considered a basic need for
human survival--is only becoming more difficult for today's utilities.
Supply chain and labor challenges are just the tip of the iceberg, as
our industry is also battling a dwindling supply of dependable 24/7
electricity sources at a time when fleet electrification and other new
consumer demands are growing and while new clean energy regulations are
being phased in. And if that weren't enough, extreme heat and wildfires
and dangerous cold weather events are now more regularly gripping our
country's communities, and we've only begun to see the devastating
impacts of this dangerous combination of factors as our utilities
struggle to deliver this basic human need.
To fully understand the gravity of what we face if our electricity
services become less reliable and/or more expensive, I would encourage
you to turn to CEQ's own interactive ``Climate and Economic Justice
Screen Tool,'' which identifies census tracts that are ``overburdened
and underserved.'' While we understand this Administration's commitment
to environmental stewardship, I would be remiss if I did not emphasize
that the direction we are headed in the FMCS/CEQ mediation contradicts
these goals. I must stress any increased funding from BPA comes on the
backs of those who can least afford to pay. I should also note that the
vast majority of fish mitigation efforts in the Columbia-Snake River
Systems is paid for by electric ratepayers--despite the considerable
economic benefits to the broader taxpayers, like flood control and
commercial salmon harvest.
I mentioned briefly that reliability is paramount in these
communities. Let's connect some dots here. While this Administration
contemplates operational changes to the dams, I must emphasize that
this also has a devastatingly detrimental impact on system reliability.
Ironically, it would also have a huge negative impact on meeting the
Administration's climate goals by reducing the amount of clean,
renewable hydropower produced. Any operational changes this
Administration might suggest that would breach dams, increase spill, or
draw down water would have grave implications for communities in the
Northwest.
A crucial component of BPA's predominant hydropower fleet is the
role of the Lower Snake River Dams (LSRDs). Completed in the 1970s,
these dams are some of the biggest producers and lowest-cost hydro
units in BPA's federal system. At 1,000 average megawatts and an
ability to generate for peak periods at about double that, they are an
invaluable resource for not just consumer-owned utilities but for
integrating wind and solar and, importantly, for coming to the rescue
when power crises hit the West.
Despite the invaluable role played by these dams, various special
interests continue to fuel a campaign that seeks to convince the
Administration to remove or devalue these vital resources. Rash
decisions to remove these hydro projects pose devastating consequences.
The LSRDs regularly are the defining line between keeping the power
flowing and parts of the West being plunged into rolling blackouts.
Case in point: last Labor Day--just over a year ago--the West was
locked in a heatwave, and the Northwest was exporting electricity to
the full extent it could to California and the Southwest. If the LSRDs
were taken out of the mix, that part of the West would have gone into
rolling blackouts, and things would have been more critical for us in
the Northwest. We estimate that if the Northwest had been just ten
degrees warmer that weekend--we were hot but not scorching--we wouldn't
have been able to help the Southwest, surely sealing their fate for no
air conditioning and total darkness. This is how close we are getting
to the system we have--it's an annual gamble in the winter and summer
extremes. We need more stable, available generation capacity, not less
of it. Remember this point, too, as our nation explores relying on
electricity to play an even more prominent role in our lives, such as
through vehicle electrification.
The Biden Administration has recently released two documents
regarding the Lower Snake River Dams. In July 2022, an analysis was
prepared by outside consultants on behalf of the Bonneville Power
Administration, exploring the costs and environmental impacts of grid
reliability through several scenarios, including the removal of the
LSRDs. The result would require tens of billions of dollars in funding
and an expected 65% rate increase to power customers in the Northwest.
The report concluded that there was no possible way to remove the LSRDs
without jeopardizing grid reliability. The National Oceanic and
Atmospheric Administration (NOAA) released the second report and called
for at least partial removal of the LSRDs. The NOAA report was prepared
in conjunction with plaintiffs who sought removal of the LSRDs, was
anonymously produced, was not peer-reviewed, and had glaring biological
errors. Yet that report is increasingly cited as the ``best and latest
science.'' I mentioned that report earlier--we have consistently raised
questions about the integrity and purpose of that report, yet have only
been met with silence from CEQ.
Thank you for your leadership and for hosting this hearing today.
We greatly appreciate the Committee's focus on this critical set of
issues and seeking transparency for CEQ for all Americans. I would
gladly answer any questions.
______
Dr. Gosar. Thank you, Mr. Simms.
I now recognize Mr. Lewis for his 5 minutes.
STATEMENT OF MARLO LEWIS, SENIOR FELLOW, COMPETITIVE ENTERPRISE
INSTITUTE, WASHINGTON, DC
Mr. Lewis. Chairman Gosar, Ranking Member Stansbury, and
honorable members of this Subcommittee, thank you for the
opportunity to testify on government overreach at CEQ. I am
Marlo Lewis, an energy policy analyst at the non-profit Free
Market Competitive Enterprise Institute. My testimony develops
three main points.
First, CEQ's attempt to align NEPA project reviews with the
Administration's climate policy agenda is unlawful under the
Supreme Court's Major Questions Doctrine. The proposed
alignment entails a major shift in national policy, yet it
lacks anything like a clear congressional authorization. The
terms ``climate,'' ``global warming,'' ``greenhouse,'' or
``carbon'' occur nowhere in NEPA.
CEQ's January 2023 proposed guidance on greenhouse gas
emissions concedes that NEPA does not require agencies to
prioritize climate change mitigation. But then, in the same
breath, CEQ gives agencies their marching orders: ``In line
with the urgency of the climate crisis, agencies should use
NEPA to help inform decisions that align with climate change
commitments and goals.'' Footnotes to this and similar passages
reveals that agencies are to align NEPA proceedings with
President Biden's Paris Agreement pledge to reduce U.S.
emissions 50 to 52 percent below 2005 levels by 2030, and with
the net-zero 2050 target.
Now, someone might say, well, that is just guidance, it is
not legally binding. But executive agencies typically follow
presidential orders. Thus, when finalized, the guidance will,
in practice, bind agency actions until it is overturned in
court or repealed by a future administration. Moreover, CEQ has
big plans for the GHG guidance. In the Council's July 2023
proposed NEPA implementing regulations, CEQ proposes ``to
codify the guidance in whole or part.''
Thus, both effectively and formally, CEQ aims to require
agencies to vet project proposals in light of the
Administration's aggressive GHG reduction targets. A net-zero
aligned permitting process would be adverse to any project
anticipated to increase emissions, either directly or by
inducing economic growth.
CEQ flouts West Virginia v. EPA. Just as the EPA's Clean
Power Plan attempted without clear authorization to suppress
investment in GHG-emitting power plants, so CEQ's proposed
guidance attempts without clear authorization to suppress
investment in GHG-emitting infrastructure. No statute passed by
Congress makes the President's Paris pledge the law of the
land. None authorizes agencies to use net-zero as a factor in
permitting decisions.
My testimony's second point is that a net-zero aligned NEPA
process is unlawful on statutory grounds. NEPA is concerned
with agency actions ``significantly affecting the quality of
the human environment.'' It is well known, and CEQ has
acknowledged since 2010, that the GHG emissions of even the
largest infrastructure project have no significant impact on
the quality of the human environment.
Finally, my testimony disputes CEQ's claim that America
``faces a profound climate crisis, allowing little time left to
avoid a dangerous, potentially catastrophic climate
trajectory.'' That claim conflicts with 50 years of dramatic
improvements in global life expectancy, per capita income, food
security, and various health-related metrics.
Of particular relevance, the global annual average number
of climate-related deaths per decade has declined by 96 percent
since the 1920s. Factoring in population growth, the average
person's risk of dying from extreme weather has declined by
more than 99 percent. Similarly, global weather-related losses
per exposed GDP have declined about fivefold since the 1980s.
In short, there is no bona fide emergency, such as might seem
to justify the Council's overreach as ``a desperate measure for
desperate times.''
Thank you very much, and I look forward to your questions.
[The prepared statement of Mr. Lewis follows:]
Prepared Statement of Marlo Lewis, Jr., Senior Fellow in Energy and
Environmental Policy, Competitive Enterprise Institute (CEI)
Summary
CEQ's strategy to shift investment away from fossil-fuel
infrastructure by `aligning' project reviews with the Biden
administration's climate agenda lacks a clear congressional
authorization. It is unlawful and vulnerable to challenge
under the Supreme Court's major-questions doctrine.
The greenhouse gas emissions of even the largest
infrastructure projects have no detectable climate change
impacts. Consequently, such emissions are not
``significant'' effects under NEPA.
Climate change is not a crisis. Hence, no bona fide
emergency exists such as might justify the Council's
overreach as a `desperate measure for desperate times.'
I. Introduction
Chair Gosar, Ranking Member Stansbury, and Members of the
Subcommittee on Oversight and Investigations, thank you for inviting me
to testify on ``systemic government overreach'' at the Council on
Environmental Quality (CEQ). Today's hearing spotlights a current
example of a ``recurring problem'' identified by the Supreme Court in
West Virginia v. EPA: ``agencies asserting highly consequential power
beyond what Congress could reasonably be understood to have granted.''
\1\
---------------------------------------------------------------------------
\1\ West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022).
---------------------------------------------------------------------------
The National Environmental Policy Act (NEPA),\2\ enacted on January
1, 1970, is a procedural statute intended to ensure that federal
agencies examine the potential environmental impacts of proposed
actions before deciding, for example, to approve construction of
infrastructure projects.\3\
---------------------------------------------------------------------------
\2\ The text of NEPA as amended through P.L. 118-5, Enacted June 3,
2023, is available at https://www.energy.gov/sites/default/files/2023-
08/NEPA%20reg%20amend%2006-2023.pdf.
\3\ Code of Federal Regulations, Title 40, Chapter V, Subchapter A,
Part 1500, https://www.ecfr.gov/current/title-40/chapter-V/subchapter-
A/part-1500.
---------------------------------------------------------------------------
Through its proposed January 9 NEPA guidance on consideration of
greenhouse gases and climate change (``Proposed Guidance'') \4\ and
July 31 proposed Phase 2 NEPA implementing regulations (``Proposed
Rule''),\5\ CEQ directs agencies to use NEPA as a climate policy
framework--a purpose for which the statute was not designed and which
Congress has not subsequently authorized.
---------------------------------------------------------------------------
\4\ Council on Environmental Quality (CEQ), National Environmental
Policy Act Guidance on Consideration of Greenhouse Gas Emissions and
Climate Change, 88 FR 1196, January 9, 2023, https://www.govinfo.gov/
content/pkg/FR-2023-01-09/pdf/2023-00158.pdf.
\5\ CEQ, National Environmental Policy Act Implementing Regulations
Phase 2, Proposed Rule, 88 FR 49924, July 31, 2023, https://
www.govinfo.gov/content/pkg/FR-2023-07-31/pdf/2023-15405.pdf.
---------------------------------------------------------------------------
II. Flouting West Virginia v. EPA
CEQ acknowledges that ``Neither NEPA, the CEQ Regulations, or this
guidance require the decision maker to select the alternative with the
lowest net GHG emissions or climate costs or the greatest net climate
benefit.'' But then, in the same breath, CEQ proceeds to give agencies
their marching orders: ``in line with the urgency of the climate
crisis, agencies should use the information provided through the NEPA
process to help inform decisions that align with climate change
commitments and goals.'' \6\
---------------------------------------------------------------------------
\6\ 88 FR 1196, 1204.
---------------------------------------------------------------------------
Which commitments and goals? The footnote at the end of the
sentence just quoted references the April 22, 2021 White House Fact
Sheet setting forth President Biden's Paris Agreement pledge to reduce
U.S. emissions 50-52 percent below 2005 levels by 2030. The same
document reaffirms the President's goal of achieving economy-wide net-
zero emissions by 2050.\7\
---------------------------------------------------------------------------
\7\ White House, FACT Sheet: President Biden Sets 2030 Greenhouse
Gas Pollution Reduction Target Aimed at Creating Good-Paying Union Jobs
and Securing U.S. Leadership on Clean Energy Technologies, April 22,
2021, https://www.whitehouse.gov/briefing-room/statements-releases/
2021/04/22/fact-sheet-president-biden-sets-2030-greenhouse-gas-
pollution-reduction-target-aimed-at-creating-good-paying-union-jobs-
and-securing-u-s-leadership-on-clean-energy-technologies/.
---------------------------------------------------------------------------
In another passage, the Proposed Guidance ``encourages agencies to
mitigate GHG emissions associated with their proposed actions to the
greatest extent possible, consistent with national, science-based GHG
reduction policies established to avoid the worst impacts of climate
change.'' \8\ The footnote at the end of that sentence also references
the April 22, 2021 White House Fact Sheet.
---------------------------------------------------------------------------
\8\ 88 FR 1196, 1197.
---------------------------------------------------------------------------
Note also that the phrase ``science-based GHG reduction policies
established to avoid the worst impacts of climate change'' is code for
NetZero agenda, which seeks to virtually eliminate economy-wide
greenhouse gas emissions by 2050 (IPCC).\9\ There is as yet no known
way to achieve net-zero emissions by 2050 without compromising economic
growth, household purchasing power, affordable automobility, and
electric power reliability.\10\
---------------------------------------------------------------------------
\9\ IPCC, Special Report on Global Warming of 1.5+C, Chapter 2, p.
2, https://www.ipcc.ch/site/assets/uploads/sites/2/2022/06/
SR15_Chapter_2_LR.pdf.
\10\ Kevin Dayaratna, Katie Tubb, and David Kreutzer, ``The
Unsustainable Costs of President Biden's Climate Agenda,'' Heritage
Foundation, June 16, 2022, https://www.heritage.org/energy-economics/
report/the-unsustainable-costs-president-bidens-climate-agenda; Daniel
Turner and Kent Lassman, ``What the Green New Deal Could Cost a Typical
Household,'' Competitive Enterprise Institute, July 29, 2019, https://
cei.org/sites/default/files/Daniel_Turner_and_Kent_
Lassman_What_the_Green_New_Deal_Could_Cost_a_Typical_Family.pdf;
Francis Menton, The Energy Storage Conundrum, The Global Warming Policy
Foundation, Briefing 61, 2022, https://www.thegwpf.org/content/uploads/
2022/11/Menton-Energy-Storage-Conundrum.pdf.
---------------------------------------------------------------------------
A bit later on the same page, CEQ suggests that by promoting
``Accurate and clear climate change analysis,'' the guidance ``Enables
agencies to make informed decisions to help meet applicable Federal,
State, Tribal, regional, and local climate action goals.'' \11\ The
footnote at the end of that sentence states: ``For example, the United
States has set an economy-wide target of reducing its net GHG emissions
by 50 to 52 percent below 2005 levels in 2030. See United Nations
Framework Convention on Climate Change (UNFCC), U.S. Nationally
Determined Contribution (Apr. 20, 2021), https://unfccc.int/NDCREG.''
---------------------------------------------------------------------------
\11\ 88 FR 1196, 1197.
---------------------------------------------------------------------------
Some may say that guidance is just a statement of administration
policy and lacks the binding force of a regulation. But executive
agencies are expected to follow the President's orders. Moreover,
Proposed Rule reveals that CEQ has big plans for the Proposed Guidance.
Namely, ``CEQ proposes to incorporate some or all of the 2023 GHG
guidance, which would require making additional changes in the final
rule to codify the guidance in whole or part, as is or with changes,
based on the comments CEQ receives on this proposed rule.'' \12\
---------------------------------------------------------------------------
\12\ 88 FR 49924, 49945.
---------------------------------------------------------------------------
This is a clear case of systemic overreach. President Biden's
pledges under the Paris Agreement, a treaty never submitted to the
Senate for its constitutional advice and consent, do not enlarge or
modify any federal agency's statutory powers or obligations. No statute
passed by Congress, including the Inflation Reduction Act, makes the
President's Paris pledges the law of the land. None authorizes agencies
to use project reviews and permitting decisions to advance the NetZero
agenda.
In West Virginia v. EPA (2022), the Supreme Court vacated the
Environmental Protection Agency's Clean Power Plan (CPP) on major-
questions grounds. The CPP attempted to settle a major question of
public policy--whether the U.S. government should force a national
shift from fossil fuel-generation to renewable-generation--without a
clear authorization from Congress. The Court granted Cert due to the
obvious fact that the EPA had claimed to find in a long-extant statute
an unheralded power to restructure the U.S. electricity sector but
could identify no language in the CPP's putative statutory basis--
section 111(d) of the Clean Air Act--clearly authorizing such a
policy.\13\
---------------------------------------------------------------------------
\13\ W. Virginia v. EPA, 142 S. Ct. 2587 (2022).
---------------------------------------------------------------------------
NEPA, too, is a long-extant statute. Claims that NEPA proceedings
should suppress investment in fossil fuel infrastructure are of recent
vintage, and cannot be squared with public convenience and necessity
determinations under the Natural Gas Act (NGA). The NGA directs the
Federal Energy Regulatory Commission (FERC) to follow NEPA when
reviewing proposed natural gas infrastructure projects. Using NEPA to
reject natural gas infrastructure projects based on climate concerns
would conflict with the NGA's ``principal purpose,'' which is to
``encourage the orderly development of plentiful supplies of
electricity and natural gas at reasonable prices.'' \14\
---------------------------------------------------------------------------
\14\ NAACP v. FPC, 425 U.S. 662 (1976).
---------------------------------------------------------------------------
Far from NEPA containing a clear statement authorizing its use to
make climate policy, the words ``climate,'' ``carbon,'' ``greenhouse,''
``global,'' and ``warming'' do not occur in the statute. Just as the
CPP attempted without clear authorization to block investment in GHG-
emitting powerplants, so CEQ's Proposed Guidance and Proposed Rule
attempt without clear authorization to block investment in GHG-emitting
infrastructure projects. Such projects include gas and oil pipelines,
obviously, but also potentially any infrastructure that increases
emissions by inducing economic growth.\15\
---------------------------------------------------------------------------
\15\ ``Indirect [environmental] effects may include growth-inducing
effects and other effects related to induced changes in the pattern of
land use, population density or growth rate, and related effects on air
and water and other natural systems, including ecosystems.'' 88 FR
49924, 49986.
---------------------------------------------------------------------------
III. Project-Specific GHG Emissions Are Not ``Significant'' Effects
under NEPA
CEQ contends that ``Climate change is a fundamental environmental
issue, and its effects on the human environment fall squarely within
NEPA's purview.'' \16\ However, NEPA is concerned with agency actions
``significantly affecting the quality of the human environment.'' 42
U.S.C. Sec. 4332. It is well-known--and CEQ has acknowledged many
times--that the GHG emissions of even the largest infrastructure
project has no measurable, traceable, or verifiable impacts on the
quality of the human environment, much less a significant impact.
---------------------------------------------------------------------------
\16\ 88 FR 1196, 1197.
---------------------------------------------------------------------------
Illusory Thresholds of Meaningfulness and Significance
Both the Obama and Trump CEQs acknowledged that individual projects
do not discernibly influence global climate change, beginning with
CEQ's 2010 Draft NEPA Guidance on Greenhouse Gas Emissions and Climate
Change Effects. The document noted a stark difference between GHG
emission sources and non-GHG emission sources: ``From a quantitative
perspective, there are no dominating sources and fewer sources that
would even be close to dominating total GHG emissions.'' \17\ Which of
the large universe of non-dominating sources should be covered?
---------------------------------------------------------------------------
\17\ CEQ, Draft NEPA Guidance on Consideration of the Effects of
Climate Change and Greenhouse Gas Emissions February 18, 2010, p. 2,
https://obamawhitehouse.archives.gov/sites/default/files/microsites/
ceq/20100218-nepa-consideration-effects-ghg-draft-guidance.pdf
(hereafter CEQ, 2010 Draft GHG Guidance).
---------------------------------------------------------------------------
The 2010 Draft GHG Guidance proposed that 25,000 tons or more of
annual carbon dioxide-equivalent (CO2e) emissions could
provide ``an indicator that a quantitative and qualitative assessment
may be meaningful to decision makers and the public.'' \18\ However,
CEQ immediately clarified that it was not making a claim about climatic
impact: ``CEQ does not propose this as an indicator of a threshold of
significant effects, but rather as an indicator of a minimum level of
GHG emissions that may warrant some description in the appropriate NEPA
analysis for agency actions involving direct emissions of GHGs.'' \19\
---------------------------------------------------------------------------
\18\ CEQ, 2010 Draft GHG Guidance, p. 2.
\19\ CEQ, 2010 Draft GHG Guidance, p. 2.
---------------------------------------------------------------------------
The 2010 Draft Guidance further stated: ``CEQ does not propose this
[25,000 ton] reference point as an indicator of a level of GHG
emissions that may significantly affect the quality of the human
environment.'' Lest anyone mistakenly infer climatic significance, CEQ
reiterated: ``However, it is not currently useful for the NEPA analysis
to attempt to link [proposed projects to] specific climatological
changes, as such direct linkage is difficult to isolate and to
understand.'' \20\
---------------------------------------------------------------------------
\20\ CEQ, 2010 Draft GHG Guidance, p. 3.
---------------------------------------------------------------------------
Stakeholders were confused. How can NEPA analysis of a project
emitting 25,000 tons of greenhouse gases per year be ``meaningful'' if
that quantity of emissions is not environmentally significant? \21\
---------------------------------------------------------------------------
\21\ CEQ, Revised Draft Guidance for Federal Departments and
Agencies on Consideration of Greenhouse Gas Emissions and the Effects
of Climate Change in NEPA Reviews, 79 FR 77802, 77825, December 24,
2014, https://www.govinfo.gov/content/pkg/FR-2014-12-24/pdf/2014-
30035.pdf.
---------------------------------------------------------------------------
CEQ's 2014 Draft GHG Guidance devoted several pages to the issue
without resolving it. CEQ again proposed a 25,000 metric ton reference
point while disclaiming an intent to make a ``determination of
significance.'' \22\ Rather, the significance of an agency action
depends on multiple factors, such as ``the degree to which the proposal
affects public health or safety, the degree to which its effects on the
quality of the human environment are likely to be highly controversial,
and the degree to which its possible effects on the human environment
are highly uncertain or involve unique unknown risks.'' \23\
---------------------------------------------------------------------------
\22\ 79 FR 77802, 77810.
\23\ 79 FR 77802, 77810.
---------------------------------------------------------------------------
However, that restates rather than resolves the perplexity. The
degree to which GHG emissions from an individual project affect public
health and safety is for all practical purposes zero. The climatic
insignificance of individual projects is non-controversial and highly
certain. Greenhouse gas emissions from individual projects are not
suspected of posing unique unknown risks.
After wrestling with comments ranging from `no project-level
emissions are big enough to quantify' to `no project-level emissions
are too small to quantify,' CEQ judged that a 25,000-ton disclosure
threshold is ``1) low enough to pull in the majority of large
stationary sources of greenhouse gas emissions, but also 2) high enough
to limit the number of sources covered that state and local air
pollution permitting agencies could feasibly handle.'' \24\ In other
words, administrative convenience rather than science would determine
the cutoff.
---------------------------------------------------------------------------
\24\ 79 FR 77802, 77818.
---------------------------------------------------------------------------
Then, two years later, the final 2016 GHG guidance silently dropped
the 25,000-ton threshold. The whole topic disappeared without a word of
explanation or comment. Perhaps CEQ just gave up trying to explain how
quantifying emissions that are not climatically ``significant'' could
still be ``meaningful.'' \25\
---------------------------------------------------------------------------
\25\ CEQ, Final Guidance for Federal Departments and Agencies on
Consideration of Greenhouse Gas Emissions and the Effects of Climate
Change in National Environmental Policy Act Reviews, August 1, 2016,
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/nepa_final_ghg_
guidance.pdf (hereafter CEQ, 2016 Final GHG Guidance).
---------------------------------------------------------------------------
False Proxies
Although the climatic insignificance of project-related emissions
has been Council's consistent view since 2010, CEQ in 2014 continued to
propose and in 2016 required agencies to quantify facility-level GHG
emissions, and use that information to evaluate proposed actions,
alternatives, and mitigation measures.
Based on what scientific rationale? CEQ argued that ``projection of
a proposed action's direct and reasonably foreseeable indirect GHG
emissions may be used as a proxy for assessing potential climate
effects.'' \26\ That is misleading at best.
---------------------------------------------------------------------------
\26\ CEQ, 2010 Draft GHG Guidance, p. 3; 79 FR 77825; CEQ, 2016
Final GHG Guidance, pp. 4, 10.
---------------------------------------------------------------------------
A proxy voter can cast a real, countable, ballot for an absentee
voter. Data from tree rings, ice cores, fossil pollen, ocean sediments,
and corals can be calibrated to instrumental data and then serve
(albeit imperfectly) as proxies for climatic conditions in pre-
industrial times. In contrast, no testable, measurable, or otherwise
observable relationship exists between project-level GHG emissions and
climate change effects. Imaginary proxies are not proxies.
CEI has made that point in previous comments to the CEQ. Maybe that
is why the Proposed Guidance says nothing about proxies.
The Proposed Guidance declines to propose ``any particular quantity
of GHG emissions as `significantly' affecting the quality of the human
environment.'' \27\ That avoids the problem of having to defend the
climatic ``significance'' of whatever reporting threshold is chosen.
But that raises another problem. The absence of any tonnage threshold
would seem to imply that no quantity of CO2 emissions is too
small to be estimated, reported, and mitigated. Neither science nor
benefit-cost analysis supports such a policy.
---------------------------------------------------------------------------
\27\ 88 FR 1196, 1200.
---------------------------------------------------------------------------
Permitting Policy Is Not Climatically Significant
Perhaps CEQ believes that a GHG-focused permitting policy could
significantly affect the quality of the human environment, even if
individual permitting decisions cannot. The Proposed Guidance states:
``Major Federal actions may result in substantial GHG emissions or
emissions reductions, so Federal leadership that is informed by sound
analysis is crucial to addressing the climate crisis.'' \28\ In fact,
not even adoption of a GHG-centric permitting regime would discernibly
affect global warming and any associated climate impacts.
---------------------------------------------------------------------------
\28\ 88 FR 1196, 1197.
---------------------------------------------------------------------------
For example, a 2022 Heritage Foundation analysis shows that a
complete ban on the construction of new natural gas pipelines would
achieve a negligible 0.74 percent reduction in U.S. annual
CO2 emissions through 2050 and an undetectable 0.069+C
reduction in global temperatures through 2100.\29\ Those conclusions
are based on a clone of the U.S. Energy Information Administration's
(EIA's) National Energy Modeling System (NEMS) and the EPA's Model for
the Assessment of Greenhouse Induced Climate Change (MAGICC).\30\
---------------------------------------------------------------------------
\29\ 0.069+C is smaller than the 0.11+C standard deviation for
estimating changes in annual average global surface temperatures. J.
Hansen, et. al. 1999. GISS Analysis of Surface Temperature Change.
Journal of Geophysical Research, Vol. 104, No. D24, 30,997-31,022,
https://agupubs.onlinelibrary.wiley.com/doi/pdf/10.1029/1999JD900835.
\30\ Comments submitted by Patrick Michaels, Kevin Dayaratna, and
Marlo Lewis, Federal Energy Regulatory Commission, Order on Draft
Policy Statements, Docket No. PL21-3-000, March 24, 2022, https://
cei.org/wp-content/uploads/2022/04/CEI-Comments-Michaels-Dayaratna-
Lewis-Docket-No.-PL21-3-000-April-25-2022.pdf.
---------------------------------------------------------------------------
CEQ's Rebuttal: A Response
While disavowing an attempt to establish a particular quantity of
emissions as climatically significant, CEQ insists that NEPA ``requires
more than a statement that emissions from a proposed Federal action or
its alternatives represent only a small fraction of global or domestic
emissions.'' That tells us nothing ``beyond the nature of the climate
change challenge itself--the fact that diverse individual sources of
emissions each make a relatively small addition to global atmospheric
GHG concentrations that collectively have a large effect.'' \31\
---------------------------------------------------------------------------
\31\ 88 FR 1196, 1201.
---------------------------------------------------------------------------
Respectfully, CEQ ignores the obvious. The ``nature of the climate
challenge'' is what renders scrutiny of project-level GHGs a waste of
time and effort. Attempting to solve the ``climate change challenge''
one project at a time is like trying to drain a swimming pool one
thimbleful at a time. It is a fool's errand.
Unless the real objectives are political, such as promoting climate
angst, mobilizing activists, and expanding government control of the
economy.
CEQ states that although ``individual sources of emissions each
make relatively small additions to global atmospheric GHG
concentrations,'' the myriad diverse sources ``collectively have large
effect.'' \32\ The policy implication is obvious: To mitigate ``large
effect,'' permission should be denied to as many sources as possible--
ideally to all.
---------------------------------------------------------------------------
\32\ 88 FR 1196, 1201.
---------------------------------------------------------------------------
The chief problem with that policy--aside from the enormous
economic losses it would entail--is that Congress has not authorized
it. CEQ should take great care not to encourage agencies to do
piecemeal what they clearly lack authority to do at the pace and scale
dictated by the NetZero agenda.
IV. No Bona Fide Climate Emergency
CEQ's core rationale for requiring agencies to consider GHG
emissions in NEPA proceedings is the opinion that America ``faces a
``profound climate crisis and there is little time left to avoid a
dangerous--potentially catastrophic--climate trajectory.'' \33\
---------------------------------------------------------------------------
\33\ 88 FR 1196, 1197; 88 FR 49924, 49928.
---------------------------------------------------------------------------
That is incorrect. If climate change were a global ecological and
economic crisis, we would expect to find evidence of declining health,
welfare, and environmental quality over the past 50 years. Instead, we
find dramatic improvements in global life expectancy, per capita
income, food security, crop yields, and various health-related
metrics.\34\ Disease mortality rates increased after January 2020 but
that was due to the COVID-19 pandemic,\35\ not climate change.
---------------------------------------------------------------------------
\34\ Our World in Data, https://ourworldindata.org/.
\35\ Our World in Data, Cumulative Deaths from All Causes Compared
to Projection Based on Previous Years, Per Million People, Sep. 11,
2022, https://ourworldindata.org/grapher/cumulative-excess-deaths-per-
million-covid?time=2022-09-11&country=MEXPERFRABRA
USAGBRBGRISRAUS.
---------------------------------------------------------------------------
Increasing Climate Safety
Of particular relevance, the average annual number of climate-
related deaths per decade has declined by 96 percent during the past
hundred years--from about 485,000 deaths annually in the 1920s to
18,362 per year in 2010-2019.\36\ This spectacular decrease in
aggregate climate-related mortality occurred despite a fourfold
increase in global population. That means the individual risk of dying
from extreme weather events declined by 99.4 percent over the past 100
years.\37\ Far from being an impediment to such progress, fossil fuels
were its chief energy source.\38\
---------------------------------------------------------------------------
\36\ Bjorn Lomborg, ``We're Safer from Climate Disasters than Ever
Before,'' Wall Street Journal, November 3, 2021, https://www.wsj.com/
articles/climate-activists-disasters-fire-storms-deaths-change-cop26-
glasgow-global-warming-11635973538; ``Fewer and Fewer People Die from
Climate-Related Disasters,'' Facebook, https://www.facebook.com/
bjornlomborg/posts/4757029 43914714/.
\37\ Bjorn Lomborg, ``The risk of dying from climate-related
disasters has declined precipitously.'' Twitter, January 1, 2023,
https://twitter.com/BjornLomborg/status/161279015 2539131904.
\38\ Alex Epstein, Fossil Future: Why Human Flourishing Requires
More Oil, Coal, and Natural Gas--Not Less (New York: Penguin Random
House, 2022).
---------------------------------------------------------------------------
Decreasing Climate Vulnerability
We often hear that the weather is becoming increasingly
destructive. For example, the National Oceanic and Atmospheric
Administration (NOAA) recently reported that, ``In 2020 alone, a record
22 separate climate-related disasters with at least $1 billion in
damages struck across the United States, surpassing the previous annual
highs of 16 such events set in 2011 and 2017.'' \39\ Citing NOAA's
report, the Securities and Exchange Commission's (SEC's) climate risk
disclosure proposal asserts that ``the impact of climate-related risks
on both individual businesses and the financial system as a whole are
well documented.'' \40\ Similarly, the Financial Stability Oversight
Council cites the trend in billion-dollar weather disasters as evidence
that climate change is a ``threat to financial stability.'' \41\
---------------------------------------------------------------------------
\39\ NOAA, National Centers for Environmental Information (NCEI)
U.S. Billion-Dollar Weather and Climate Disasters (2022), https://
www.ncei.noaa.gov/access/billions/.
\40\ SEC, The Enhancement and Standardization of Climate-Related
Disclosures for Investors, 87 FR 21334, 21336, April 11, 2022, https://
www.govinfo.gov/content/pkg/FR-2022-04-11/pdf/2022-06342.pdf. 87 FR
21336.
\41\ FSOC, Report on Climate-Related Financial Risk 2021, p. 12,
https://home.treasury.gov/system/files/261/FSOC-Climate-Report.pdf.
---------------------------------------------------------------------------
In reality, not only is the increasing number of billion-dollar
disasters not evidence of a climate crisis, it is not even evidence of
climate change.\42\
---------------------------------------------------------------------------
\42\ Lest anyone mistake my meaning, greenhouse gases are radiative
(climate warming) gases, and anthropogenic warming is real.
---------------------------------------------------------------------------
NOAA's billion-dollar disaster charts adjust climate-related
damages for inflation but not for population growth and exposed wealth.
NOAA--and, thus, the SEC and FSOC--ignore what Danish economist Bjorn
Lomborg calls the ``expanding bull's eye.'' More people and more stuff
in harm's way lead to bigger climate-related damages even if there is
no change in the weather.
Since 1900, Lomborg notes, Florida's coastal population has
``increased a phenomenal 67 times.'' In fact, just two Florida
counties, Dade and Broward, have a larger population today than lived
along the entire coast from Texas to Virginia in 1940. Consequently,
``For a hurricane in 1940 to hit the same number of people as a modern
hurricane ripping through Dade and Broward today, it would have had to
tear through the entire Gulf of Mexico and Atlantic coastline.'' \43\
---------------------------------------------------------------------------
\43\ Bjorn Lomborg, Bjorn Lomborg, False Alarm: How Climate Change
Panic Costs Us Trillions, Hurts the Poor, and Fails to Fix the Planet
(New York: Basic Books, 2020), pp. 70-71 (original emphasis).
---------------------------------------------------------------------------
Normalizing the damages--estimating the economic losses from an
historic extreme weather event if the same event were to occur under
present societal conditions--creates a very different picture from that
touted by federal agencies. Consider hurricane damages, which
constitute the largest portion of U.S. weather-related damages. There
has been no trend in normalized U.S. hurricane damages since 1900.
Consistent with that data, there has been no trend in the frequency and
severity of U.S. landfalling hurricanes since 1900.\44\
---------------------------------------------------------------------------
\44\ Philip J. Klotzbach, Steven G. Bowen, Roger Pielke Jr., and
Michael Bell. 2018. Continental U.S. Hurricane Landfall Frequency and
Associated Damage: Observations and Future Risks. Bulletin of the
American Meteorological Society Vol. 99, Issue 7, https://
journals.ametsoc.org/view/journals/bams/99/7/bams-d-17-
0184.1.xml?tab_body=pdf.
---------------------------------------------------------------------------
From a sustainability perspective, what matters most is not total
damages but relative economic impact--extreme weather damages as a
share of GDP. Globally, weather-related losses per exposed GDP declined
nearly five-fold from 1980-1989 to 2007-2016.\45\ In both rich and poor
countries, economic growth outpaced the increase in climate-related
damages.
---------------------------------------------------------------------------
\45\ Giuseppe Formetta and Luc Feyen. 2019. Empirical Evidence of
Declining Global Vulnerability to Climate-Related Hazards, Global
Environmental Change, 57: 1-9, https://www.researchgate.net/
publication/333507964_Empirical_evidence_of_declining_global_
vulnerability_to_climate-related_hazards.
---------------------------------------------------------------------------
Methodological Bias: Inflated Emission Scenarios
One often hears that climate change is happening so fast it will
overwhelm humanity's adaptive capabilities. In CEQ's words, ``there is
little time left to avoid a dangerous--potentially catastrophic--
climate trajectory.'' \46\ That assessment clashes with the positive
trends discussed above. Three other key facts weigh against the alleged
urgency for ``climate action.''
---------------------------------------------------------------------------
\46\ 88 FR 1196, 1197.
---------------------------------------------------------------------------
First, the rate of warming in the lower-troposphere, as measured by
satellites and weather balloons, has not accelerated over the past 44
years. In the University of Alabama in Huntsville satellite record, the
warming rate is 0.14+C per decade.\47\
---------------------------------------------------------------------------
\47\ Roy Spencer, UAH Global Temperature Update for August, 2023:
+0.69 deg. C, RoySpencer.Com, September 4, 2023, https://
www.drroyspencer.com/2023/09/uah-global-temperature-update-for-august-
2023-0-69-deg-c/.
---------------------------------------------------------------------------
A second major reason is that the emission baselines long used to
project global warming and sea-level rise are wildly inflated. Those
scenarios assume the world ``returns to coal'' absent aggressive
political interventions to suppress the exploration, production, and
utilization of fossil fuels.\48\ That assumption underlies the high-end
``radiative forcing'' scenarios,\49\ notably RCP8.5 and SSP5-8.5,
featured in official and academic climate change impact estimates. Such
scenarios are no longer credible.\50\
---------------------------------------------------------------------------
\48\ Justin Ritchie and Hadi Dowlatabi. 2017. Why Do Climate Change
Scenarios Return to Coal? Energy 140: 1276-1291, https://
www.sciencedirect.com/science/article/abs/pii/S036054421 7314597.
\49\ RCP stands for ``Representative Concentration Pathway''; SSP
stands for Shared Socioeconomic Pathway. In both RCP8.5 and SSP5-8.5,
the rise in GHG concentrations between 2000 and 2100 increases the
preindustrial greenhouse effect by 8.5 watts per square meter (W/
m2).
\50\ Roger Pielke, Jr. and Justin Ritchie, ``How Climate Scenarios
Lost Touch with Reality,'' Issues in Science & Technology, Vol. XXXVII,
No. 4, Summary 2021, https://issues.org/climate-change-scenarios-lost-
touch-reality-pielke-ritchie/.
---------------------------------------------------------------------------
It is difficult to exaggerate the extent to which RCP8.5 and SSP5-
8.5 distort climate science, needlessly scare the public, and mislead
policymakers. According to Google Scholar, since 2019, researchers
published 17,400 papers featuring RCP8.5 and 3,800 papers featuring
SSP5-8.5.\51\ One or both of those scenarios was the source of the
scary-sounding climate impact projections in the Intergovernmental
Panel on Climate Change's (IPCC's) 2013 Fifth Assessment Report (AR5),
the IPCC's 2018 Special Report on Global Warming of 1.5+C, the IPCC's
2021 Sixth Assessment Report (AR6), and the U.S. Global Change Research
Program's 2018 Fourth U.S. National Climate Assessment.
---------------------------------------------------------------------------
\51\ Some of those papers could, of course, be critical of high-end
emission scenarios. However, the first 50 entries on SSP5-8.5 are
exclusively studies that use the scenario to project climate change
impacts. Hardly an exhaustive survey but quite suggestive.
---------------------------------------------------------------------------
At its zenith, the academic ``consensus'' endorsing those scenarios
may have reached the fabled 97 percent.\52\ It is now crumbling.
---------------------------------------------------------------------------
\52\ David R. Legates et al. 2015. Climate Consensus and
`Misinformation': A Rejoinder to Agnotology, Scientific Consensus, and
the Teaching and Learning of Climate Change. Sci & Educ 24: 299-318,
https://lweb.cfa.harvard.edu/wsoon/myownPapers-d/LegatesSoonBriggs
Monckton15-ScienceandEducation-FINAL.pdf.
---------------------------------------------------------------------------
SSP5-8.5 is a ``socioeconomic pathway'' calibrated to match the
forcing trajectory of RCP8.5. RCP8.5, in turn, derives from an earlier
storyline (A2r) from the IPCC's 2007 Fourth Assessment Report.\53\ Such
scenarios assumed that learning-by-extraction would make coal the
increasingly affordable backstop energy for the global economy.\54\ In
fact, nominal coal producer prices in July 2023 were 221 percent higher
than in July 2001.\55\ RCP8.5 was based on the expectation that global
coal consumption would increase almost tenfold during 2000-2100.\56\
That is not happening and there is no evidence that it will.
---------------------------------------------------------------------------
\53\ Kewan Riahi et al. 2011. RCP8.5--A Scenario of Comparatively
High Greenhouse Gas Emissions. Climate Change 109: 33-57, https://
link.springer.com/article/10.1007/s10584-011-0149-y.
\54\ Justin Ritchie and Hadi Dowlatabadi, The 1,000 GtC Coal
Question: Are Cases of High Future Coal Combustion Plausible? Resources
for the Future, RFF DP 16-45, 2016, https://media.rff.org/documents/
RFF-DP-16-45.pdf.
\55\ St. Louis FED, Producer Price Index by Industry: Coal, https:/
/fred.stlouisfed.org/series/PCU21212121 (accessed 9/11/2023).
\56\ Riahi et al. Op. cit.
---------------------------------------------------------------------------
In the International Energy Agency's (IEA's) baseline scenarios
(``current policies'' and ``pledged policies''), global CO2
emissions in 2050 are less than half those projected by SSP5-8.5.\57\
Strikingly, in Resources for the Future's (RFF's) baseline scenario,
global CO2 emissions in 2100 are less than one-fifth of
those projected by SSP5-8.5.\58\ These dramatic reductions in baseline
emission estimates decrease the urgency for ``climate action.''
---------------------------------------------------------------------------
\57\ Zeke Hausfather and Glenn P. Peters, ``Emissions--the
`business as usual' story is misleading,'' Nature, January 29, 2020,
https://www.nature.com/articles/d41586-020-00177-3.
\58\ Kevin Rennert et al. The Social Cost of Carbon: Advances in
Long-Term Probabilistic Projections of Population, GDP, Emissions, and
Discount Rates, Resources for the Future, October 2021, https://
www.rff.org/publications/working-papers/the-social-cost-of-carbon-
advances-in-long-term-probabilistic-projections-of-population-gdp-
emissions-and-discount-rates/.
---------------------------------------------------------------------------
Methodological Bias: Overheated Models
CEQ's Proposed Rule requires agencies to use ``projections when
evaluating reasonably foreseeable effects, including climate change-
related effects,'' and ``expects that modeling techniques will continue
to improve in the future, resulting in more precise climate
projections.'' \59\ This brings us to the third reason to doubt the
urgency for ``climate action'': the persistent mismatch between modeled
and observed warming in the troposphere, the atmospheric layer where
most of the greenhouse effect occurs. The IPCC used the CMIP5
generation of climate models in AR5 and the CMIP6 generation of models
in AR6. According to Google Scholar, since 2019, researchers published
68,000 papers featuring CMIP5 models and 22,600 papers featuring CMIP6
models.
---------------------------------------------------------------------------
\59\ 88 FR 49924, 49951.
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The CMIP5 models hindcast about 2.5 times the observed warming in
the tropical troposphere since 1979.\60\ About one-third of the AR6
models have higher equilibrium climate sensitivities than any model in
the AR5 ensemble.\61\ Equilibrium climate sensitivity (ECS) is the term
used to describe how much warming will occur after the climate system
fully adjusts to a doubling of atmospheric CO2
concentrations.
---------------------------------------------------------------------------
\60\ John R. Christy and Richard T. McNider. 2017. Satellite Bulk
Tropospheric Temperatures as a Metric for Climate Sensitivity. Asia-
Pac. J. Atmos. Sci., 53(4), 511-518, https://www.sealevel.info/
christymcnider2017.pdf.
\61\ Zeke Hausfather, ``Cold Water on Hot Models,'' The
Breakthrough Institute, February 11, 2020, https://thebreakthrough.org/
issues/energy/cold-water-hot-models.
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CEQ believes climate models are improving. If anything, the CMIP6
models are less accurate than the CMIP5 models. One CMIP5 model (INM-
CM4) accurately hindcasts global temperatures in the topical
troposphere. No CMIP6 model does. All overestimate warming in that
atmospheric region.\62\ Why is that significant? All models predict a
strong warming signal in that region (the tropics at 300-200 hPa). The
region is well monitored by satellites and weather balloons. Most
importantly, climate models are not ``tuned'' to match temperature
trends in that region, so the model simulations are genuinely
independent of the data used to test them.\63\
---------------------------------------------------------------------------
\62\ McKitrick and J. Christy. 2020. Pervasive Warming Bias in
CMIP6 Tropospheric Layers. Earth and Space Science, 7, Issue 9, https:/
/agupubs.onlinelibrary.wiley.com/doi/10.1029/2020EA001281.
\63\ Ross McKitrick and John Christy. 2018. A Test of the Tropical
200- to 300-hPa Warming Rate in Climate Models. Earth and Space
Science, 5: 529-536, https://agupubs. onlinelibrary.wiley.com/doi/epdf/
10.1029/2018EA000401.
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V. Conclusion
CEQ should withdraw the proposed GHG emission guidelines, which
would require agencies to use NEPA as a climate policy framework--a
purpose for which it was not designed and which Congress has not
subsequently authorized. Language in the Proposed Rule requiring NEPA-
based scrutiny and mitigation of project-specific climate effects
should be deleted.
Far from NEPA containing a clear statement authorizing its use to
make climate policy, the words ``climate,'' ``carbon,'' ``greenhouse,''
``global,'' and ``warming'' do not occur in the statute.
NEPA is centrally concerned with ``major'' federal actions
``significantly affecting the quality of the human environment.'' The
GHG emissions of even the largest infrastructure project have no
discernible, traceable, or verifiable impacts on the quality of the
human environment.
CEQ proceeds as if the ``climate crisis'' is important enough to
make any level of GHG emissions climatically significant, and dire
enough to compel NEPA's alignment with Paris Agreement and NetZero 2050
emission reduction targets. If so, CEQ unlawfully attempts to settle a
major question of public policy without clear congressional
authorization.
CEQ should question the climate crisis narrative, which conflicts
with ongoing long-term improvements in global life expectancy, per
capita income, crop yields, and health; dramatic declines in climate-
related mortality; and substantial declines in the relative economic
impact of damaging weather.
Finally, CEQ should question the ``science'' underpinning the
crisis narrative--a doubly-biased methodology in which overheated
models are run with inflated emission scenarios. Absent those biases,
climate change assessments would project less warming, smaller climate
impacts, and lower tipping point risks.
______
Dr. Gosar. Thank you, Mr. Lewis. I am now going to go to
the dais. I recognize the gentleman from Oregon, Mr. Bentz, for
his 5 minutes.
Mr. Bentz. Thank you, Mr. Chair.
Mr. Simms, I held a hearing as the Chair of the Water
Subcommittee of Natural Resources up in Richland, Washington
back in June. And it became apparent from the testimony of some
of the witnesses from various government agencies, that we
weren't going to get the straight of what was really going on,
and that is a blatant attempt to circumvent congressional
authority to breach or remove those four Lower Snake River
dams.
And by blatant attempt I mean an attempt to use operational
neutering, as I have chosen to call it, of those four projects,
as opposed to actual breaching of the dams. That was the
conclusion I reached in that hearing. Can you comment?
Mr. Simms. Well, good morning, Congressman Bentz. Thank you
for that opportunity to respond.
The situation in the region is exactly as you described and
what has been provided by testimony and others. These dams are
being hobbled operationally. The folks that are pushing an
agenda for their breaching or the removal are trying to make
them less significant, less operationally significant than what
they have done historically. And I think that has been an
effort by folks to be continued on a single-focused path of
breaching or de-optimizing them, no matter which way they can
work that.
And you are right, Congress does have the authority, and I
appreciate you, as a Member of Congress, stressing that
authority. It has been affirmed by both the Democrats and the
Republicans that Congress is the single writing authority on
those Lower Snake River dams, and the dams in general, and
their authorizations.
I will conclude by saying that there is an established
record by the U.S. Government, the Columbia River System
Operations Environmental Impact Statement issued in September
2020. And that was the U.S. Government's view after an
exhaustive, multi-million dollar effort involving stakeholders
across the basin that those dams can and should exist with some
very minimal efforts and investments around them because, of
course, we are paying the world's largest Endangered Species
Act mitigation program currently, and that was and is the
government's record that stands today, despite the shenanigans
from CEQ.
Mr. Bentz. Right, and these shenanigans are being driven by
CEQ, as you just said, as I understand it. But that was
certainly not clear from my questions to, I think it was NOAA
or the Corps. And there seemed to be a huge reluctance to share
with the public exactly how this incredibly important decision
to the Northwest was going to be made.
Do I have that right, that this is being conducted in
secret, this attempt to operationally destroy those four
projects?
And we will learn, I guess, when Judge Simon issues his
order, if he does, on October 31. So, how can one justify, if
you are part of the CEQ, such an approach to such an incredibly
damaging activity in the Northwest?
Mr. Simms. Well, sir, it is a great, great question, and I
would say I am not standing in the shoes of CEQ. And having
been witness to 25 years of Federal, state, and regional
process around these Federal facilities and around the power
system in the Pacific Northwest, it is incredibly difficult and
very complex, and requires the involvement of a lot of
stakeholders. That is typically how we have moved policy in our
region is by transparent involvement of all sectors, making
sure that folks are read in and understanding where things are
headed and when they have a voice. And that has been completely
the opposite, unfortunately, in this situation with CEQ.
And as I outlined in my brief comments today, but also
submitted comments, the NOAA report that CEQ had a hand in and
has essentially put its basis upon is completely different than
the decades of NOAA research and science on these issues to
date. And we believe that has been the fuel, essentially, for
the CEQ fire to burn down our region and effectively sidestep
any kind of public process.
Mr. Bentz. Right, and I thank you for that.
And Mr. Lewis, what, in your opinion, is the most
egregious, expansive CEQ power under the Biden administration?
Mr. Simms. What specifically is, sir?
Mr. Bentz. Yes, just give me one. Give me the one you think
is the worst.
Mr. Simms. Well, I believe that having----
Mr. Bentz. That was actually for Mr. Lewis.
Mr. Simms. Oh, I am sorry.
Mr. Bentz. That is OK.
Mr. Simms. Pardon me. I will yield to Mr. Lewis.
Mr. Bentz. Sure.
Mr. Lewis. I am not sure I can give you an example, because
I am not really following CEQ's actions with respect to
particular projects or locations the way Mr. Simms is. He is
really the expert here.
The abuse of power that I was looking at was the way they
are trying to stretch a statute that was never intended to be a
framework for climate policy into such a framework. And it is
well known that NEPA does not even require agencies to elevate
environmental concerns above other considerations when they
deliberate on whether or not to grant a permit or approve the
construction of a project.
And what I am finding is that CEQ wants to elevate the
President's very specific climate goals and commitments, which
are not commitments in law, but just of Administration policy,
into a make-or-break factor for deciding on whether projects
should be allowed.
Mr. Bentz. And we are going to have to stop there. My time
has been exhausted, but thank you so much.
Mr. Lewis. Yes. That is basically my notion of what their
abuse is that I was concerned with.
Mr. Bentz. Thank you. I yield back.
Dr. Gosar. I thank the gentleman. The gentleman from
California, Mr. Huffman, is recognized.
Mr. Huffman. Thank you, Mr. Chairman. Mr. Chairman, forgive
me for being a little bit cynical about the work of this
Subcommittee this morning, because I just see an awful lot of
gaslighting and projection, and performative partisan theater.
Ranting about dark money environmental groups while trotting
out witnesses from the darkest of dark money right-wing groups
in this hearing? Give me a break.
Getting us started by climbing on a high horse, thesaurus
in hand, and calling the Biden administration and CEQ Chair
Mallory every name in the book because she dares to undo some
really wrongheaded Trump administration policies, because she
is trying to make sure we consider climate change and impacts
to disadvantaged communities when we move forward with
projects?
I am old enough to remember during the 4 years of the Trump
administration, when we tried to do oversight, which apparently
suddenly the Republican Majority thinks is really important,
and what we got back from the Interior Secretary when we wanted
to find out if he was still doing business with his former oil
and gas industry clients, because we, unfortunately, confirmed
an Interior Secretary that was a lobbyist for the oil and gas
industry, when we wanted to ask about that we got pages and
pages of fully redacted empty calendar entries. We got nothing.
But that was just fine with the Republican Majority during the
Trump administration, because they knew that that Secretary of
the Interior was doing the bidding of their puppet masters in
the oil and gas industry.
It is also rich to hear the Chairman of the Full Committee
wax sanctimonious about the Fiscal Responsibility Act. And
apparently, the CEQ Chair is not being forceful enough in
implementing the gimmicky NEPA reforms that were in that piece
of legislation. And they were nothing more than gimmicks.
While at the same time, our Republican colleagues are
proceeding to tear the Fiscal Responsibility Act into tiny
little pieces as they push our country to the brink of a
government shutdown in violation of the agreement behind that
legislation.
So, this is all a lot of partisan theater, and that goes
for the discussion about the Lower Snake River dams, as well.
We know that our Republican colleagues recently said that the
NMFS 2022 report was untethered from scientific standards and
statutory authority. Mr. Simms added a rhetorical flourish,
saying that it was a house of cards, a flimsy house of cards
that CEQ built.
Well, we have had 20 years of litigation over biological
opinions on these Lower Snake River dams, and every single
lawsuit has found that we are not doing enough to meet the
standard of avoiding jeopardy, much less getting the salmon in
the Columbia River Basin on a path toward recovery.
So, based on all of this science, it sure looks to me like
this is more than a house of cards. It looks like seriously
considering what these Lower Snake River dams are doing to
salmon in the Columbia River Basin is inevitable, certainly
under the Endangered Species Act.
And also, if you give a damn about salmon, if you give a
damn about tribes, if you give a damn about the dwindling orca
populations in Puget Sound, let me just ask Ms. Heaps, what am
I missing here?
Ms. Heaps. Congressman Huffman, I think you are right on
the point. CEQ's undoing what happened in 2020 with the regs
and taking the step forward to really implement NEPA for what
we need today to address climate change, to address
environmental justice.
And I would also like to say that voices are missing here,
where is the tribal representation? I mean, that perhaps is the
most stark point that hasn't been made yet, is that we have a
government obligation to the tribes, that they have treaty
rights to these fish. And that is our No. 1 thing that we have
done wrong, and that should be the priority here, is centering
the tribes and fixing these salmon runs so that they have their
tribal treaty rights.
Mr. Huffman. Thank you. The salmon in this basin are
trending toward extinction, despite all the money that we have
been spending on mitigation, correct?
Ms. Heaps. Yes, that is true. The Nez Perce actually, in
fact, said extinction is imminent if we don't do something.
Mr. Huffman. So, rather than just the usual thoughts and
prayers we hear from our colleagues across the aisle, shouldn't
we follow the science and do what we need to do if we care
about salmon, and tribes, and all of the economic benefits?
We heard the world would end if these dams came out. But
aren't there a lot of economic considerations when it comes to
salmon in the Columbia River Basin?
Ms. Heaps. Yes, absolutely. And also breaching the dams
would give an opportunity to actually diversify the power
system, and actually increase reliability of the power system,
and open up additional recreational opportunities as well.
Mr. Huffman. I thank the witness and yield back.
Dr. Gosar. I think it is kind of rich of what we want, and
to understand the Constitution is about the law.
I now recognize the Chairman of the Full Committee, Mr.
Westerman.
Mr. Westerman. Thank you, Mr. Gosar, and thank you to the
witnesses.
And Mr. Huffman, I honestly don't know if you voted for the
Fiscal Responsibility Act, but regardless, it is still the law.
I know you might want to call it a gimmick, but it is a gimmick
that had bipartisan support, and President Biden signed it. And
the point is, it is the law.
And Ms. Heaps, I appreciate your testimony because it was
passionate. It was a plea for policies, but it was a plea for
policies that have never been passed into law by Congress. It
would be fitting for a testimony at a hearing on legislation.
But I think it is somewhat irrelevant on a hearing for
oversight of an agency regarding established law. And I think
this gets to the root of the problem. It illustrates where the
breakdown is in the process.
Ms. Heaps, a July 5 Earthjustice blog post stated, and I
quote, ``Radical Republicans are actively trying to weaken
NEPA. They are trying to make it easier for industry to build
toxic facilities in communities already overburdened by the
worst impacts of climate change and pollution.''
Now, I want to point out that that post goes on to talk
about how the NEPA Phase 2 requirements should focus on
environmental justice and ensure climate change is part of the
review process. This was published on July 5, 2023.
The CEQ proposed Phase 2 NEPA regulations were published in
the Federal Register on July 31, 2023. Those regulations more
closely mirrored recommendations in the Earthjustice blog post,
not the reforms agreed upon in what has been called gimmicky
bipartisan Fiscal Responsibility Act.
So, yes or no, Ms. Heaps, did you or a member of the
Earthjustice team meet with CEQ regarding the development of
the proposed Phase 2 NEPA process?
Ms. Heaps. I am one employee at a very large organization
that has 500 employees, so I am not familiar with who was
meeting with who.
Mr. Westerman. So, you didn't----
Ms. Heaps. I did not personally meet with CEQ, no. That is
all I could speak to.
Mr. Westerman. Did you or a member of Earthjustice
participate in drafting the Phase 2 regulations?
Ms. Heaps. I do not have knowledge to that. I did not.
Mr. Westerman. Is there somebody at Earthjustice that would
have knowledge of that?
Ms. Heaps. Can you explain what you mean by writing the
Phase 2 regulations? Because my understanding is this is an
administrative process in which all of America actually
participates in the regulation writing because there are draft
regulations, and then it goes through----
Mr. Westerman. Did you or an employee meet with CEQ
regarding these Phase 2----
Ms. Heaps. I have not met with CEQ about----
Mr. Westerman. Did you or a staff member of Earthjustice
have access to an advanced copy of the CEQ proposed Phase 2
regulations prior to their publication in the Federal Register?
Ms. Heaps. CEQ does a notice of advanced proposed
rulemaking. So, all of America had an idea of what Phase 2 was
going to look like.
Mr. Westerman. So, you had an advance copy?
Ms. Heaps. No, I didn't say I had an advance copy.
Mr. Westerman. So----
Ms. Heaps. I said the rulemaking procedures allow----
Mr. Westerman. Are you or Earthjustice, as a non-profit,
currently a party and/or representing a party in litigation
against the Federal Government?
Ms. Heaps. We are not a party, no. We are lawyers.
Mr. Westerman. Are you representing a party in litigation
against the Federal Government?
Ms. Heaps. Are we representing a party in litigation? Yes.
Mr. Westerman. Do any of these lawsuits involve NEPA?
Ms. Heaps. I have personally represented parties on NEPA at
Earthjustice. I don't know what----
Mr. Westerman. So, is this a potential conflict of interest
for Earthjustice and/or its employees?
Ms. Heaps. Absolutely not.
Mr. Westerman. OK. For the record, Ms. Heaps, I would like
to note that your disclosure for the Committee states that
Earthjustice is not a party to any litigation against the
Federal Government, despite the fact that it uses this as an
advertising tool in its tagline and on your website.
So, do you feel, again, yes or no, is falsification of
information to Congress acceptable?
Ms. Stansbury. Will the gentleman yield, please?
Mr. Westerman. No.
Dr. Gosar. The gentleman's question will stand. We need an
answer.
Ms. Heaps. I answered that question truthfully.
Earthjustice is not a party to litigation, and that is what the
question asks for.
Mr. Westerman. The question was a party to or representing
a party in litigation.
Ms. Heaps. That is not what the question asked. It was a
party to litigation.
If you would like a list of the litigation to which
Earthjustice is currently in litigation, I am sure we could
find----
Mr. Westerman. I have a whole list of other questions. If I
am out of time, we will submit those questions. I also have
questions for the other witnesses. But I am out of time, and I
yield back.
Dr. Gosar. The gentleman from Montana is recognized for 5
minutes.
Mr. Rosendale. Thank you very much, Mr. Chair and Ranking
Member Stansbury, for holding this hearing today.
President Biden's big-government, climate-activist agenda
has wholly captured the once small Council on Environmental
Quality, transforming it into a compliance council, or an
activist organization. President Biden's CEQ is hell bent on
implementing climate and social policies that are destroying
our country's energy production and jobs.
CEQ Chair Brenda Mallory, who was too scared to face this
Committee today, has previously described her role as focusing
on addressing the environmental justice and climate change
challenges. Nowhere in CEQ's authorizing charter does it
mention environmental justice. Nor did Congress grant CEQ the
power to focus on climate justice and climate change
challenges.
CEQ's purpose is to ensure compliance with NEPA, nothing
more. Nothing more, nothing less. Yet, we have President Biden
using this Council to push through his outrageous and harmful
Executive Orders and rulemaking with CEQ's Chief of Staff
describing the power Biden has given CEQ as ``unprecedented.''
This isn't just our words.
During his presidency, Biden has signed Executive Orders
providing CEQ with more and more power over American citizens'
lives, no longer solely focused on NEPA compliance, but instead
on environmental justice per the President's orders. We have
just begun to see the damage this rogue, relatively unknown
agency can wreak on this country and our economy.
Last July, we saw the results of this agency's activism at
the Lower Snake River dams. The CEQ has been working behind
closed doors with plaintiffs in an ongoing lawsuit over the
Columbia River System Operation's EIS, all while promoting a
supposedly open and transparent stakeholder listening process
meant to develop a regional solution for salmon and the river
system. This action by CEQ shows their goal is not a cleaner
and more efficient economy and power generation, but instead
forwarding their climate goals and trying to destroy any power
generation that they cannot control directly.
Mr. Loyola, we can all see the significant differences in
how CEQ was run under the Trump administration versus the
current one: permitting delays, a focus on climate justice, et
cetera. However, are there lesser understood or seen
differences influencing our country that my constituents would
be surprised to hear about?
Mr. Loyola. Well, if I was to name one, Congressman, I
would say that in the Trump administration we were building on
the work of previous administrations, including the Obama
administration. We recognized that doing a rule revision
carries risks of inserting instability into a process that is
already so unpredictable that Americans across the spectrum
suffer from it.
So, we tried to have a very inclusive process and produce
very common-sense reforms that would have bipartisan buy-in and
that would stand the test of time. That is why, as it turned
out, the renewable energy sector was arguably the most
immediate beneficiary of many of those reforms, as renewable
energy capacity permitting doubled under the Trump
administration.
And what concerns me is that this process that CEQ has
undertaken in recent years has been, I think it is fair to say,
a more partisan and special interest group-driven process than
certainly the one that we tried to have in the Trump
administration. And as a result, the CEQ has guaranteed that
when there is another change of administration, there is going
to have to be yet another change in the procedures for NEPA to
make them more balanced once again. So, that is the danger that
I see there.
Mr. Rosendale. Thank you very much. This is exactly the
ripsaw effect that we see when executives on either side of the
aisle start making Executive Orders and directing policy
instead of utilizing the process that our founders created for
us, which is this body creating the laws. And we have lost
that, which has also created a loss of confidence in the
general public in these institutions because they see them
going off and making their own decisions, making their own
rules, and a complete disregard for the rule of law that has
been put in place.
Mr. Chair, if I could squeak one more question in, do you
believe any of President Biden's CEQ's actions have violated
the Constitution, Administrative Procedure Act, or the Supreme
Court's precedent?
Mr. Loyola. I think that there is a potential for that, and
I would like to take that question for the record, if I may.
Mr. Rosendale. Thank you very much, Mr. Chair. Thank you
for your indulgence and I yield back.
Dr. Gosar. I thank the gentleman. The gentleman from
Georgia is recognized for 5 minutes.
Mr. Collins. Thank you, Mr. Chairman. I want to follow up
real quickly on Chairman Westerman's opening statement.
America, during the last hearing, CEQ Chair Mallory, and
CEQ by the way is an unauthorized agency created by the Biden
administration, which has increased to a bloated budget and
out-of-control agency. Chair Mallory refused to answer simple
questions I had about foreign contractors. As a matter of fact,
she refused to answer any more questions.
Now, she wasn't refusing to answer me, but she was refusing
to answer you, every taxpaying American out there, because she,
like so many of these other out-of-control agencies, they don't
think they have to answer your questions. They don't even have
to answer your comments you submit, because they don't care
what you think.
As a matter of fact, they think it is even beneath them to
have to even answer your questions or, as you see, even show
up. Because, you see, for years, to Chuck Schumer's delight, we
have passed omnibus bills up here. Omnibus bills have been
crammed down the American people's throat with no oversight and
no accountability by these out-of-control agencies. And it has
done nothing more than continue to embolden them. Well, I tell
you what, I am here to tell you those days are over.
Now, Mr. Chairman, with that being said, I am excited that
we do have those of you that are here with us today, and I
thank you for that.
CEQ projected reviews, they are 5 years, on average, from
reaching a record of decision. And at the most extreme, the
average time to conduct a final EIS by the Federal Highway
Administration is 7.37 years. And none of these timelines take
into account the litigation that likely ensues for this final
Record of Decision, or ROD.
So, Ms. Heaps, what are the reasons for an environmental
impact statement to take almost 5 years to complete?
Ms. Heaps. I think in some instances environmental impact
statements can take a long time, based on what kind of studies
are being done, if you are doing noise studies, if you are
studying certain impacts to wildlife, if you have to do
baseline research. So, that could be one reason.
I have not been privy to any interaction between an
applicant and an agency to actually know what they are doing in
that time until the NEPA document goes out for public comment.
There may be another witness here who has a better answer to
that question. But I could speak more clearly to what happens
when a document goes to public comment and then what happens
after that.
Mr. Collins. Thank you.
Well, I will tell you what, Mr. Lewis, do you agree that
these timelines are not acceptable?
Mr. Lewis. I am sorry, Congressman, please repeat that
question.
Mr. Collins. Well, I was asking Ms. Heaps what are the
reasons that these environmental impact statements take almost
5 years.
Mr. Lewis. Oh, why they take so long, right. Well, I will
give you a quick answer, but I would say that my colleague,
Mario Loyola, knows much more detail here.
But one reason is that it is to bulletproof the
environmental impact statement from litigation. Because no
matter how many different factors or aspects you consider,
because the world is such a big and complex place, some
litigation group can always find something that the agency
didn't consider. And sometimes courts will then just overturn
the decision, or make them do the study over.
So, litigation drives a lot of the time expended----
Mr. Collins. I would agree with you 100 percent. And many
times at our Federal Government they move the goalposts due to
these litigations and all these frivolous lawsuits that these
environmentalists impose, and it is a continual.
What do you think can be done to cut these timelines?
Mr. Lewis. I really think Mario could speak much better to
that than I could.
Mr. Collins. Well, we will give him a shot at it.
Would you care to answer that?
Mr. Loyola. Yes, Congressman, thank you for that.
And thank you, Marlo, for creating more work for me.
[Laughter.]
Mr. Collins. He is sitting three doors down.
Mr. Loyola. So, Congressman, I think that in addition to
the factor that Mr. Lewis mentions, which is litigation risk
that drives the agencies to an inordinate amount of time spent
trying to make sure they get every comma and period right, is
the fact that the NEPA process is so resource intensive for
agencies that agencies can only produce a, you know, a handful
of EISs every year.
So, you have, for example, the Nevada office of the Bureau
of Land Management only has the resources to work on one to
three permit applications at the same time, given how much of
the staff resources every one of these things costs, and
suddenly they are facing 20 permit applications. Well, they can
still only work on two at a time. So, that means that there is
an enormous backlog of these things created.
And as far as ways to resolve this, to help improve the
situation and speed this up, I think I have several
recommendations in my submitted testimony, and I have written
about this a fair amount. I will just say I think it is very
important that the agency not have unfettered discretion of
when to start the clock ticking.
Mr. Collins. He is over here tapping on me. I can answer
that question as well. Some call it tort reform.
Mr. Chairman, I am sorry for going over, and I appreciate
it, and I yield back.
Dr. Gosar. I thank the gentleman from Georgia. The
gentleman from Washington, Mr. Newhouse, is recognized for 5
minutes.
Mr. Newhouse. Thank you, Chair Gosar, and I appreciate very
much the opportunity to be part of this hearing. I thank the
guests for being here today.
I am from the state of Washington. As you are familiar, the
four Lower Snake dams are certainly what many people call, me
included, the lifeblood of central Washington. They literally
transform an arid desert into bountiful farmland. They provide
irrigation, an agricultural industry, navigation, flood
control, a source of clean, renewable, CO2-free
power throughout the region. So, they are very important.
And to ensure their continued success, I have consistently
engaged with many people throughout the region that represent
utilities, public power, hydropower, certainly water groups,
many groups that are impacted and benefit from the presence of
the dams. We literally represent millions of people in the
West, and this is such an important process for us to be
talking about, and I appreciate you guys being here.
The common theme, all of these groups consistently raise
the same concerns that they have within the CRSO process, the
Columbia River System Operations, that the CEQ, the Council on
Environmental Quality, has not adequately involved them. It is
very frustrating. These are the stakeholders in this mediation
process. It is very frustrating.
In fact, in one case, stakeholders like the Public Power
Council and the Northwest River Partners were invited to an
August 18, 2023 meeting, a meeting that was scheduled 13 days
prior to the expiration of the mediation. So, certainly
stakeholders had a chance to express their concerns, but I am
guessing they were registered, but none of their concerns were
addressed or remedied.
I was very excited when I came in the room and I saw that
the name tag for Chair Mallory of the CEQ was there. And I
apologize, Mr. Loyola, I mistook you for Mr. Mallory. So, I was
going to direct some questions to you. But not being able to do
that, I have to redirect my thoughts to others.
So, Mr. Simms, if you would avail yourself, do you think
that 13 days is enough time for CEQ to incorporate any
potential recommendations into the mediation?
Mr. Simms. Congressman Newhouse, good morning. Thirteen
days is certainly not enough for CEQ to incorporate our input.
Mr. Newhouse. In your opinion, how do you believe that this
lack of collaboration will impact the end result that we may
see from this mediation process?
Mr. Simms. Sadly, sir, I would say, as a fourth generation
Washingtonian myself, we are further apart than we were when we
started this process. And I used a four-letter word earlier to
describe it. It is a sham, s-h-a-m. I think that this process
has really isolated folks from the ability to really engage and
find true compromise in the middle. And I do believe that there
is a middle for compromise.
And I was sad to see Congressman Huffman leave the room so
that we could address some of the issues he raised about
salmon, because we do care deeply about the salmon in our
region, the survival of the salmon, the habitat investments,
the predation reduction investments that we are making. Those
are all critical for their survival. And we are all in. We live
in those communities, and we want those salmon to succeed.
Mr. Newhouse. I am kind of an optimist, I guess, not
naively so, so I was glad to see the extension so that maybe we
could address some of these long-standing concerns that I
didn't think there was adequate time given to address.
In the remainder of this extension that we have before us,
what would you recommend that, in your opinion, CEQ could do
differently than they have over the past 2 years to make sure
that these concerns that are being raised are incorporated into
the mediation process, and that we end up where we need to be,
with a fair, equitable resolution?
Mr. Simms. Well, sir, I am looking at the clock and seeing
there is probably a long list of things that could happen. But
I would say first and foremost is there probably needs to be
some reading and some studying done at CEQ, and that is the
current record from the U.S. Government about where the
government landed on the future of the Columbia River System,
which was the CRSO EIS from September 2020.
As well, as I outlined earlier, the NOAA report that CEQ
has heralded and put forth is unsubstantiated, and is a 180-
degree difference from the former and established NOAA science
in this basin.
So, we have to actually do some homework in this region,
and we have to get folks back together to the table in a way
where we can compromise. I am hopeful we can do that in the
remaining days of this stay.
Mr. Newhouse. Yes, I am, too. Like I said, I am optimistic,
but hopefully not naively so, and look forward to a positive
resolution to this once and for all.
Thank you, Mr. Chairman. I am over my time. And again, I
appreciate being allowed to sit in on this hearing.
Dr. Gosar. Thanks for being here. The Western caucus is
always endeared here.
I now recognize the gentleman from Texas, Mr. Hunt, for his
5 minutes.
Mr. Hunt. Thank you, Mr. Chairman, and thank you,
witnesses, for being here today.
CEQ was originally created to issue guidance to Federal
agencies on how to comply with NEPA. Nevertheless, everyone in
this room knows that CEQ has grown into an action arm for
President Biden's radical eco-agenda. Look no further than the
Biden administration's settlement with the Sierra Club over a
possible, a possible, sighting of a Rice's whale in the Gulf of
Mexico almost a decade ago. It is insanity.
Instead of simply overseeing NEPA compliance, the CEQ is
reshaping Federal agencies as a vehicle of social change and
leading the war on domestic energy production.
CEQ and Biden's White House care far more about ESG than
they care about the American public and our livelihood, and
what we are going to do about having energy abundance for our
future.
Mr. Loyola, sir, thank you for being here. In your
testimony, you mentioned that the American people need to
understand that the goal of net-zero is a fantasy. And given
the delays and uncertainties of the permitting process, could
you elaborate on that, please?
And for the record, sir, I am from Houston, Texas. The
entire energy corridor is in my district, so I can't agree more
with this statement, but I would love for you to speak a little
bit more about that, please.
Mr. Loyola. Thank you for the question, Congressman Hunt.
I would say that under current law there are enormous
constraints on the ability to deploy renewable energy on the
scale and at the speed that would be required. Just to give an
example, the Princeton Net-Zero Study talks about requiring 500
gigabytes of new solar capacity. That is about 1,000 utility
scale solar plants that would need to be built. That is an area
approximately the size of New Jersey covered in solar panels.
Mr. Hunt. Wow.
Mr. Loyola. And I will just point out, in the Snake River
dams that we have been talking about, there are many very
sympathetic stories on the ground of stakeholders. Every single
renewable energy project has similar stories and has similar
people opposing them.
And the problem with the NEPA process is that it elevates
small pockets, what can sometimes be very small pockets of
local opposition over national policy priorities. And it is
happening even with respect to the national policy priorities
of the current Administration, which hasn't been able to
increase the rate at which renewable energy gets permitted
because of this sort of local opposition.
The problems operate at two levels. One of them is that the
risks to any particular project are so enormous because of the
uncertainties of the process that those projects in the project
application phase, during the NEPA phase, have only very
restricted access to financing. Only people who can afford to
lose $25 or $30 million or $100 million on a permit
application, who can literally afford to throw that money away,
are waiting for someone to call them back, and are only tempted
to get into a project because of the promise of exorbitant
returns on investment, which is a premium that is passed onto
consumers eventually.
Mr. Hunt. Always, always.
Mr. Loyola. All of these inefficiencies come at a great
cost.
And then the macro level issue, which I discussed a moment
ago, which is that the entire process is so taxing of agency
staff resources that the entire Federal Government is only able
to produce 70 or 80 EISs a year.
The entire Federal Government in the last year, I mean, I
don't know this for a fact, I will take it for the record, but
in the last year I bet that the entire Federal Government has
only issued three or four solar project permit applications.
And in order to get to net-zero, they have to build 1,000 solar
plants and have them operational before 2035. I am not a
mathematician or anything, but doing the math I don't see how
they are going to get there.
So, I think the principle that we followed in the Trump
administration was that the uncertainties and inefficiencies of
the NEPA process hurt everybody.
Mr. Hunt. Yes.
Mr. Loyola. And that making the process more predictable
would be a benefit to everybody. Maybe not the litigation, the
cottage industry of litigation groups that has grown up
challenging agency actions. But again, I don't see this as a
partisan issue of Republicans versus Democrats. I see this as
public interest versus special interests.
So, what we tried to do and what CEQ will hopefully do in
the future is to put the public interest and efficient and
effective agency action first, and try to streamline the NEPA
process as called for in the Fiscal Responsibility Act.
Mr. Hunt. Thank you very much for your answer, and I will
yield back the rest of my time.
Thank you, sir.
Dr. Gosar. I thank the gentleman from Texas. The
gentlewoman from New Mexico is recognized for her 5 minutes.
Ms. Stansbury. All right. Well, thank you so much, Mr.
Chairman. And I do thank all of my colleagues for the rich
discussion and debate this morning, and that is part of the
democratic process is to have debates about public policy, and
our goals, and what we would like to achieve with the tools of
governance.
But what we don't get to do is to make up facts and put
false statements into the mouths of our witnesses and then try
to get them on the record. So, I will remind my colleagues that
this is not behavior that is fitting with the decorum of this
Committee, and would like to correct some of the misinformation
that has been stated here at this hearing today.
First of all, let's talk about NEPA and CEQ. In 1969, this
body on a bipartisan basis passed NEPA. And guess what? It
actually authorized and created the Council on Environmental
Quality. And then Richard Nixon signed it on January 1,
creating the Council on Environmental Quality. I heard some
statements this morning that it was an unauthorized agency, and
that is factually untrue.
Second, I heard a lot of commentary this morning from
various Members about unauthorized activities of the executive
office of the President. Well, this is how it works. Congress
passes laws and then the executive branch implements them. And
last year and the year before, Congress passed the Bipartisan
Infrastructure Law, which is the largest investment in
infrastructure in generations, and last summer, we passed the
Inflation Reduction Act, which directed the Council on
Environmental Quality, our executive offices, to implement the
most comprehensive implementation of climate action ever in the
history of the United States and of any government in the
history of this planet. So, the Council and the other agencies
of the executive office are carrying out their mandates, which
Congress passed.
Third, I heard that the Council on Environmental Quality is
implementing unauthorized budgetary authority. Well, guess
what? The U.S. Constitution says Congress holds the purse
strings and we authorized and appropriated that funding. And
the reason why we did that is so that we could implement NEPA
and actually expedite our infrastructure so that we could build
out our clean energy and other infrastructure. And that is
exactly what the Council and other Federal agencies are doing.
Finally, I would love to remind everyone here that
administrative law and the way in which our Constitution laid
out was that there is a separation of powers. So, each
president gets to create an advisory body within the Executive
Office of the President to advise that president on how they
carry out their duty. They also can sign Memorandums and
Executive Orders that direct his agencies and his bodies to do
what a president, he and, hopefully, in the future, she or
they, may choose to do. And that is exactly what the Council on
Environmental Quality is doing.
So, I think it is just important for the purposes of the
record to make sure that we are being accurate in what we are
describing in terms of the law, congressional authority,
executive authority, and the mandates of this agency.
I do want to just take a moment to talk about the fisheries
situation in the Pacific Northwest. While I do represent a
state in the Southwest, I had the tremendous honor, as a former
Senate staffer, to work for a Senator from the Pacific
Northwest, and had the opportunity to work on these issues. And
what I know to be true is that, indeed, the fisheries of the
Pacific Northwest are protected by treaty between the U.S.
Government and the tribes who signed those treaties with the
U.S. Government. And the subject of litigation is not only the
Endangered Species Act, but the right of those tribes to access
and utilize those fisheries in perpetuity.
So, it is important again that we are accurate about the
law, we are accurate about the goals of litigation, and why
these things are happening.
Finally, I just want to wrap up here and talk about
accountability to agreements. Two months ago, this body
literally had a debate about whether or not we would shut down
the global economy and accede to the demands of folks in the
radical right who basically wanted to gut government functions.
And as a pound of flesh, they mandated that the President and
the rest of our country vote for a bill called the Fiscal
Responsibility Act that cut funding for individuals who are
struggling with food insecurity, that made agreements about how
the budget would be implemented, that would cut overall
spending levels if we didn't hold to those agreements, and
which attempted to gut the National Environmental Policy Act,
and which the Administration is trying to implement in good
faith right now.
But you know who is not acting in good faith right now? The
individuals who actually demanded that pound of flesh, because
right now, this week, we are just 2 weeks away from the
government shutting down because we have not passed a budget
that meets the responsibilities and the agreements that were in
the Fiscal Responsibility Act.
And we were supposed to take a vote today on one of those
appropriations bills. And guess what? They couldn't even get a
rule out to take a vote on the House Floor. So, we are going to
go down to the floor after we adjourn this hearing, and we are
going to take a vote on electric cars, and these folks are
going to go home.
So, I say to the American people, let's talk about
government accountability and responsibility, but let's make
sure that Congress is doing its job, and let's keep the
government open.
And with that, I yield back.
Dr. Gosar. I thank the gentlewoman. You know, it is
priceless here. We are going to run a $2 trillion deficit this
year, $2 trillion. And we are not going to talk about that
expenditure thing again. You can't keep doing this. That is why
our money is play money now.
So, I think the ranting and raving on both sides is
merited, because I think people are frustrated because we are
not back to what the government should be doing. Congress
defines the laws, makes those laws, and these agencies embrace
them. Groups like Ms. Heaps' have a right to intervene if they
so feel. But we all have to do this together, and it is crazy.
When you look at this $2 trillion deficit, how much was it
that was done in regards to the military? Here is a military
that can't find 60 percent of its assets. Does that sound like
something you want to throw a bunch of money at? Not me. I
think every dollar that comes to the forefront should be
accountable. We have to be determining that aspect to have it
done. So, I don't care for the grandstanding. I think it has a
place, because we have to look at each other in how we get this
stuff done.
Mr. Loyola and Mr. Lewis, when you talk about these green
infrastructure projects, tell me how this worked with the Trump
administration working collaboratively versus the Biden
administration. Why was there so much more done during the
Trump administration than the Biden administration?
Mr. Loyola. Chairman Gosar, during the Trump
administration, I think it is fair to say that attitudes toward
renewable energy within the Administration ranged from agnostic
to hostile. But the President was very committed to efficient
government processes, and especially very committed to cutting
red tape and to making agency processes work efficiently.
An important part of the One Federal Decision process was
not just timelines and page limits, but also an accountability
system that was developed and managed jointly by the Council on
Environmental Quality and the Office of Management and Budget
that held the agencies to report cards, and brought up to the
principal's level, to the cabinet officer level, projects and
processes that had fallen behind their published schedules.
And in my opinion, it was this entire system of expedited
procedures, added resources to expedite those procedures and,
crucially, the accountability system that was put in place by
OMB that increased the rate of permitting across NEPA reviews,
generally. And as a result, because renewable energy projects
tend to be, for a variety of reasons, NEPA-intensive, it
emerged not as an objective of the policy, but as a by-product
of the policy that the renewable energy sector was an enormous
beneficiary of the Trump-era reforms.
Dr. Gosar. Let me intervene there. I thought my
understanding was agencies pre-dating the Obama era looked at
corridors that were actually pre-selected sites for these green
energy. Is that true?
And why did that not play a big part?
Mr. Loyola. Well, I will take as an example the 2012 Solar
Programmatic Environmental Impact Statement for the six Western
states, which was put in place in 2012 by the Bureau of Land
Management in order to expedite solar project development in
the part of the country that has the highest solar energy
capacity factor, which is the desert in the Western states, in
Nevada and surrounding states in particular. They divided up
the geographic area into solar energy zones, solar energy no-go
zones, and then variance areas.
The problems with the areas that they designated for solar
energy development is that they were absolutely in the middle
of nowhere, and not near any interconnection points. And the
long pole in the tent for all of this stuff is building the
transmission lines. So, they were in danger of building a bunch
of solar projects that could be waiting for the rest of the
21st century for transmission lines to arrive.
And as it turned out, when private developers started
coming in and trying to develop solar projects under this
scheme, they realized that the only feasible places to get a
return on investment and get a solar project interconnected to
the grid was within the variant zones, and the variant zones
basically dialed everything back. Instead of having a
programmatic permit where you could batch permit all of this
whole group of solar projects, now you were back to square one
with the same NEPA process that you had before.
So, I think the failure there was to not look at it enough
from the business people's point of view who actually have to
develop these projects, and try to figure out where it would
make sense to develop them.
Dr. Gosar. That is wonderful.
I am just going to ask you real quick, going down the line,
what was the one question you wanted asked today that wasn't
asked, and what is the answer?
We will start with you, Mr. Loyola.
Mr. Loyola. What is the most important thing----
Dr. Gosar. No, what was the question you wanted most to
answer.
Mr. Loyola. Sorry, this is suddenly Jeopardy, but I am
trying.
So, the question is what is the most important thing that
Congress can do to reform the NEPA process, and the answer to
that question, after conducting a study of how other countries
do environmental review and permitting, is that I think the
time may have come for Congress to consider and start studying
a general consolidation of all of the environmental laws in a
single statute, as the Netherlands and Denmark have done, which
would consolidate all permitting within a single permitting
agency, with a single permit application, and a single
predictable timetable for projects of national importance that
would still retain enforcement and regulation within the
agencies that exist today.
Dr. Gosar. Ms. Heaps.
Ms. Heaps. Thank you. I would have liked to be asked how
are the Phase 2 regs consistent with congressional intent of
NEPA.
Dr. Gosar. Say that one more time.
Ms. Heaps. How are the Phase 2 regulations consistent with
NEPA's congressional intent, and I think there are four ways,
particularly with climate change and environmental justice.
The declaration of congressional intent is that Congress
recognized the profound impact of man's activity on the
interrelations of all components of the natural environment.
That is climate change as an umbrella, especially as related to
resource exploitation.
Congress declared a continuing policy to use all
practicable means and measures to create and maintain
conditions under which man and nature can exist in productive
harmony. They said that they recognize its continuing
responsibility of the Federal Government to use all practical
means to improve Federal decisions to fulfill the
responsibilities of each generation as a trustee of the
environment for succeeding generations.
We know through Juliana, we know through the Montana
litigation that our young generations are demanding that we
take action on climate change.
And then finally, that declaration of national
environmental policy, Congress recognizes each person should
enjoy a healthful environment. That loops in environmental
justice. Thank you.
Dr. Gosar. Thank you.
Mr. Simms.
Mr. Simms. Yes, thank you for that question. The question I
was hoping you would ask is can you talk about the balance you
work to achieve between the health of salmon and production of
clean, renewable hydropower, and my answer is that I represent
non-profit electric utilities, and $0.25 on every dollar is
spent on fish recovery. And we are making meaningful impacts.
We need to talk in our region more about sustaining the
harvest for treaty tribes, for sure. But as well, we need to
talk about the offshore harvest that is happening on an
annualized basis and the massive take of fish. So, as we are
trying to produce fish, they are also being hauled in.
I think, as well, we are facing more and more extreme
weather events in our world. And you certainly did raise that,
I think, in your opening comments. And we definitely are seeing
utilities being stretched more and more. In fact, last year,
California hit a peak, 51 gigawatts during Labor Day of 2022.
The Northwest came to the rescue with, actually, those Lower
Snake River dams.
So, it is all about a balancing factor. And for us, I think
what we are trying to do is make sure folks realize we actually
live and work in this basin. We care deeply about it, and we
are trying our best, like Congress, to find that balance
pathway between all the needs that are put on this vast river
system. Thank you.
Dr. Gosar. Thank you.
Mr. Lewis.
Mr. Lewis. I would have liked to have been asked to
elaborate a bit on the CEQ's exaggerated understanding of the
climate risks that we actually face. CEQ, in its greenhouse gas
guidance, basically thinks that agencies have at their
fingertips an excellent set of resources in terms of modeling
and projections of climate risks that they can rely on to
inform their decisions.
And one of the things that I stressed in my testimony is
that, for years, a set of emissions scenarios have dominated
all the official climate impact assessments, whether it is the
Intergovernmental Panel on Climate Change or the U.S. National
Climate Assessment. These scenarios, they are called RCP 8.5
and SSP 8.5. They are basically the high-end emissions
scenarios.
And just to give you a sense, just since 2019, 17,400
papers have been published in the peer-reviewed literature
examining climate risks in terms of this RCP 8.5. Now, it turns
out that the latest information shows that this emissions
scenario, which is the dominant scenario for years now, or more
than a decade, exaggerates the likely quantity of carbon
dioxide emissions in the global economy by more than double by
the year 2050, and by more than 5 times by the year 2100.
So, there is this enormous systemic bias, if you will, in
the climate impact assessment literature, and I don't think
that CEQ is aware of any of this. They certainly don't take
notice of it. There are newer scenarios that are much more
realistic, including those produced by the organization
Resources for the Future, and then the International Energy
Agency also.
Anyway, there are some aspects to climate science there
that I think they are completely missing.
Also, about the models that are used, the generation of
models that was used in the 2013 Intergovernmental Panel on
Climate Change report, and then by our National Climate
Assessment, and then the later generation called CMIP6, if
people are interested in the names, in the sixth assessment
report of the IPCC, all those models over-estimate or hindcast
about 2\1/2\ times as much warming as has actually been
observed in the tropical mid-atmosphere, the bulk atmosphere.
So, the practice in climate science has been to run
inflated emissions scenarios like RCP 8.5 with these overheated
models, and then that becomes the consensus. And based on that
consensus, people who are clever with words will elaborate a
narrative of existential threat, and crisis, and emergency. And
I think all of this really needs to be toned down and rethought
at the highest levels of our government.
Dr. Gosar. Well, I thank you so very, very much.
Did you want to put something in the record? Go ahead.
Ms. Stansbury. Mr. Chairman, before we adjourn I would like
to ask for unanimous consent to enter into the record two
letters that has been signed by multiple organizations in
support of CEQ's NEPA Phase 2 rule.
Dr. Gosar. Without objection, so ordered.
[The information follows:]
September 13, 2023
Hon. Paul Gosar, Chairman
Hon. Melanie Stansbury, Ranking Member
House Natural Resources Committee
Oversight and Investigations Subcommittee
1324 Longworth House Office Building
Washington, DC 20515
Dear Chairman Gosar, Ranking Member Stansbury, and members of the
Subcommittee:
Ahead of the Subcommittee hearing on Thursday, September 14th, our
organizations write to express our support for the Biden
administration's proposed ``Bipartisan Permitting Reform Implementation
Rule,'' which will finalize the White House Council on Environmental
Quality's (CEQ) update to the National Environmental Policy Act (NEPA)
regulations. This rule embodies a commitment to environmental
protection and the rule of law, and we support its focus on climate
action, environmental justice, and the rapid and responsible
development of truly clean, renewable energy infrastructure.
NEPA has been a cornerstone of environmental policy for more than
five decades, ensuring that federal actions consider and address their
environmental, health, and economic impacts. Strong NEPA rules are
particularly important for Indian Country and tribal citizens as it is
one of the few safeguards for actions on lands held in trust by the
federal government. CEQ's proposed revisions to the NEPA rule are a
welcomed effort to modernize and improve this bedrock environmental law
that Congress should recognize and support.
While long overdue, we applaud CEQ's commitment to incorporating
climate change and environmental justice considerations into NEPA
reviews. Recognizing the existential threat that climate change poses
and the disproportionate impacts it has on marginalized communities,
this aspect of the draft rule is both timely and essential. By
integrating climate considerations and explicitly incorporating
environmental justice concerns into federal decision-making, the rule
takes a significant step towards ensuring a more sustainable,
equitable, and resilient future.
Our organizations look forward to working collaboratively with the
Administration to ensure that the rule strengthens environmental
protections, advances the fight against climate change, promotes
environmental justice for all, and is finalized as soon as possible.
Sincerely,
American Rivers National Wildlife Federation
CalWild Natural Resources Defense Council
Center for Oil and Gas
Organizing Northeastern Minnesotans for
Wilderness
Coalition to Protect
America's National Parks Ocean Conservancy
CURE Ocean Conservation Research
Dakota Resource Council Ocean Defense Initiative
Earthjustice Operation HomeCare, Inc.
Earthworks Oxfam America
Environmental Law & Policy
Center Sierra Club
Food & Water Watch Silvix Resources
Fort Berthold Protectors of
Water and Earth Rights Southern Environmental Law Center
GreenLatinos Southern Utah Wilderness Alliance
Information Network for
Responsible Mining The Wilderness Society
Interfaith Power & Light WE ACT for Environmental Justice
LCV Western Environmental Law Center
Los Padres ForestWatch Winter Wildlands Alliance
National Parks Conservation
Association Zero Hour
______
September 13, 2023
Hon. Paul Gosar, Chairman
Hon. Melanie Stansbury, Ranking Member
House Natural Resources Committee
Oversight and Investigations Subcommittee
1324 Longworth House Office Building
Washington, DC 20515
Dear Chairman Gosar, Ranking Member Stansbury, and members of the
Subcommittee:
We write to you on behalf of millions of our members to call
attention to the critical need to protect and restore Columbia and
Snake River salmon and steelhead in advance of the Thursday, September
14 hearing in the House Natural Resources Committee's Subcommittee on
Oversight and Investigations.
Salmon and steelhead are an integral part of life in the Northwest.
They are the foundation of an entire ecosystem from forests to orcas;
they support multi-billion dollar industries and family wage jobs from
commercial fishing to tourism and manufacturing in rural communities;
and most importantly, they are indispensable to the culture and way of
life for many Northwest Tribes that have relied on them since time
immemorial and to whom we owe solemn legal responsibility enshrined in
treaties and other agreements.
The Columbia and Snake Rivers were once the largest salmon-
producing river system in the contiguous United States, but now many
runs--and all of those that still return to the Snake River--are listed
as endangered or threatened. Many others have already been lost.
Decades of scientific study confirm that the federal hydroelectric dams
on the Columbia and Snake Rivers play a leading role in these
devastating declines.
It is impossible to imagine the Northwest without salmon--yet we
are perilously close to losing many runs of these remarkable fish. The
federal government's own analysis predicts that the continued operation
of these dams will drive many Snake River salmon runs to extinction in
the near term.\1\ More recent analysis by fisheries experts with the
Nez Perce Tribe predicts that many of these same Snake River
populations may become functionally extinct as soon as 2025, unless we
act with urgency to change their trajectory.\2\
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\1\ See NMFS' Endangered Species Act Section 7(a)(2) Biological
Opinion for the Continued Operation and Maintenance of the Federal
Columbia River Power System at p.275 (``Based on life-cycle modelling
of [hydrosystem operations in combination with] future RCP 8.5 climate
emission scenario for [Snake River] spring/summer Chinook salmon
populations, the median abundance of stream-type spring and summer-run
Chinook salmon populations could decline substantially in the next two
to three decades. Declines of this magnitude, if they were to occur,
would threaten to extirpate a large number of small populations, and
would substantially reduce the abundance and productivity of larger
populations.''). PDF
\2\ Nez Perce Tribe and the New Perce Fisheries: Snake Basin
Chinook and Steelhead Quasi-Extinction Threshold Alarm and Call to
Action (May 2021) PDF
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The loss of our native salmon is as unnecessary as it is
unacceptable. Salmon scientists have repeatedly concluded that even in
a warming world, we can restore Snake River salmon and steelhead to
healthy and abundant levels--if and only if we restore the lower Snake
River by breaching its four costly federal dams.\3\
---------------------------------------------------------------------------
\3\ National Oceanographic and Atmospheric Administration (NOAA):
Rebuilding Interior Columbia Basin Salmon and Steelhead; National
Marine Fisheries Service (Sept. 30, 2022) PDF
---------------------------------------------------------------------------
In 2021 Representative Simpson of Idaho (R) put forth an ambitious
and comprehensive proposal (Columbia Basin Initiative), effectively
advancing an important conversation across the region regarding the
urgency and opportunities to responsibly restore the lower Snake River
and replace the services provided by its four dams so that the
Northwest will continue to have abundant and affordable clean energy,
accessible transportation for agricultural products and other goods,
and irrigation for established farmland.
Additional analyses, including the recent lower Snake River report
and recommendations by Senator Murray and Governor Inslee, stated,
``status quo is not a responsible option; extinction of salmon is
categorically unacceptable''. Senator Murray and Governor Inslee
further stated in their recommendations, ``we must move forward in a
way that restores our salmon populations and acknowledges and redresses
the harms to Tribes while responsibly charting the course to an energy
and economic future for Washington state and the region. It is for
these reasons that we previously stated that breaching of the Lower
Snake River Dams should be an option, and why we believe, at the
conclusion of this Process, that it must be an option we strive to make
viable''.\4\
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\4\ Sen. Murray/Gov. Inslee: Pacific Northwest Salmon Recovery
Recommendations (Aug, 2022) PDF
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Governor Inslee and Washington State legislators followed through
on these commitments and secured $7.5 million dollars in 2023 to begin
the planning processes to replace the energy, transportation, and
irrigation services currently provided by the dams. We can feasibly and
affordably replace the services of the 4 lower Snake River dams with
reliable, modernized systems, but we must start that effort in earnest
now--and we need Congressional leadership and support.
We ask the members of this subcommittee to replace the services of
the Snake River dams so we can restore the river and breach the dams by
2030 at the latest. Working with the Administration, Congress can help
direct unprecedented federal investments through the Inflation
Reduction Act and Infrastructure Investment and Jobs Act to regional
projects that advance our clean energy and climate goals, modernize our
transportation systems, and address other interests affected by river
restoration.
The Biden Administration has articulated a clear set of commitments
to restore healthy and abundant salmon runs and honor our nation's
obligations to Tribes by turning away from the ``business as usual''
approach of the past and charting a new path forward in the Columbia
Basin.\5\ We urge you to work with the Administration to achieve these
goals. Our region's native fish face extinction today, and the time for
action and leadership is now.
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\5\ Biden Administration Columbia Basin Salmon Recovery Commitment
Document (Aug, 2022) PDF
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Now more than ever, we ask you to seize every opportunity to speak
the truth in the face of misleading information and polarizing tactics.
Defenders of a failed and costly status quo have never been more vocal
in their opposition to actions that are essential to salmon
restoration, including the restoration of the lower Snake River and its
wild salmon and steelhead.
In a recent congressional field hearing, for example, supporters of
the status quo asserted that salmon runs are not in any imminent danger
and are increasing--despite the fact that Snake River runs are hovering
near extinction levels.\6\ They also provided exaggerated and
misleading information about the role these dams play in our regional
economy. And remarkably, not a single Tribal representative was invited
to testify, despite the fact that Tribes have been the first and worst
impacted by generational declines in the salmon runs.\7\
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\6\ See The Spokesman Review, Environmentalists, politicians clash
over Republican hearing to defend Snake River dams (June 26, 2023),
available at https://www.spokesman.com/stories/2023/jun/26/
environmentalists-politicians-clash-over-republica/
\7\ Id.
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Misinformation and polarizing tactics will never form the backbone
of a durable solution. Building support for a real and durable solution
starts by acknowledging the facts. We ask you to lend your voices to
elevate fact over divisive rhetoric.
It is critical that Congress and the Administration work with
Tribal Nations, stakeholders, and all others in the Northwest to
implement a comprehensive solution that will restore healthy and
abundant salmon in the Columbia and Snake Rivers, provide a long-
overdue measure of justice for Native American Tribes, and ensure a
successful transition to a strong and robust future.
Sincerely,
Liz Hamilton, Leda Huta,
Executive Director Executive Director
Northwest Sportfishing
Industry Association Endangered Species Coalition
Bradley Williams, Lennon Bronsema,
Associate Advocacy Director Acting CEO
Sierra Club Washington Conservation Action
Tiernan Sittenfeld, Lindsey Scholten,
Sr Vice Pres. for Gov.
Affairs Executive Director
League of Conservation
Voters Oregon League of Conservation
Voters
Giulia Good Stefani, Travis Williams,
Senior Attorney, Oceans Executive Director
Natural Resources Defense
Council Willamette Riverkeeper
Rev. AC Churchill, Nic Nelson,
Executive Director Executive Director
Earth Ministry/Washington
Interfaith Power and Light Idaho Rivers United
Shawn Cantrell, Rick Williams PhD,
Vice Pres., Field
Conservation Board Member
Defenders of Wildlife Fly Fishers International
Thomas O'Keefe, Whitney Neugebauer,
Northwest Regional Director Executive Director
American Whitewater Whale Scout
Joseph Bogaard, Tom Uniack,
Executive Director Executive Director
Save Our wild Salmon
Coalition Washington Wild
Shari Tarantino, Donald Miller,
Executive Director Environmental Liaison
Orca Conservancy Snohomish County Indivisible
Brian Brooks, Rialin Flores,
Executive Director Executive Director
Idaho Wildlife Federation Conservation Voters for Idaho
Nancy Hirsh, Trish Rolfe,
Executive Director Executive Director
NW Energy Coalition Center for Environmental Law &
Policy
Norm Ritchie, Kyle Smith,
Board Member Snake River Director
Association of Northwest
Steelheaders American Rivers
Julian Matthews, Deborah A. Giles, PhD,
Co-Founder Science & Research Director
Nimiipuu Protecting the
Environment Wild Orca
Glen Spain, Rich Simms,
Northwest Regional Director Founder and Board Member
Pacific Coast Federation of
Fishermen's Associations Wild Steelhead Coalition
Joel Kawahara, Mitch Cutter,
Board Member Salmon and Steelhead Associate
Coastal Trollers
Association Idaho Conservation League
Lauren Goldberg, Bob Rees,
Executive Director Executive Director
Columbia Riverkeeper Northwest Guides and Anglers
Association
______
Ms. Stansbury. Thank you very much, Mr. Chairman.
I would just like to take one short moment, with your
permission, to correct the record on the previous statements
that were just made.
Global circulation models show that under all carbon
scenarios, including the highest levels of emissions and if we
hit our global goals for carbon, that we will continue to see
increased heating and challenges around changing weather and
climatic issues. So, we can't make up the science here, and I
think it is important that the record reflect that the last
statements were untrue. Thank you.
Dr. Gosar. I don't know that they were untrue. I think you
have to didactically look at them. I mean, I think we occupy
such a small point of time on this world. Take a look at trees.
Trees tell us a lot more. Rocks tell us a lot more. So, you
have to constantly go back to the data to keep checking and
reassessing it. And that is why peer review comes into place.
That is a big key.
So, from that standpoint, I am going to tell everybody
thank you very much for the debate. I appreciate it. I thank
the witnesses for all their comments and testimony.
The members of the Committee may have some additional
questions for you, and we ask that you respond to these in
writing. Under Committee Rule 3, members of the Committee must
submit questions to the Subcommittee Clerk by 5 p.m. on
September 19. The hearing record will be held open for 10
business days for those responses.
If there is no further business, we are adjourned.
[Whereupon, at 11:50 a.m., the Subcommittee was adjourned.]
[all]