[Congressional Record (Bound Edition), Volume 157 (2011), Part 14]
[House]
[Pages 19094-19096]
[From the U.S. Government Publishing Office, www.gpo.gov]




          FLAWED DRAFT ENVIRONMENTAL ASSESSMENT IN PUERTO RICO

  The SPEAKER pro tempore. The Chair recognizes the gentleman from 
Illinois (Mr. Gutierrez) for 5 minutes.
  Mr. GUTIERREZ. Today I'm sending a letter to Colonel Alfred A. 
Pantano, the commander of the U.S. Army Corps of Engineers in 
Jacksonville, Florida, the district that oversees, among other things, 
the permitting process for the construction of a massive gas pipeline 
that will cross the mountains in Puerto Rico. The 92-mile gas pipeline, 
which does not make any sense environmentally, economically, or 
ethically, is moving forward in part because Colonel Pantano's office 
issued a Draft Environmental Assessment that clearly favors the 
eventual issuance of the permit.
  I would like to read an excerpt from my letter:
  ``I was intensely angered, but sadly not entirely surprised, when I 
read the report issued by your office regarding the gasoducto in Puerto 
Rico. From the start, people in Puerto Rico have been telling me that 
they suspect all the regulatory oversight is nothing more than show and 
this process has been assured of passage because of insider cozy 
relationships between the Army Corps Jacksonville staff and the very 
industry they are supposed to be overseeing and regulating.
  ``Further, having sunk millions of dollars in this project already, 
the ruling party in Puerto Rico's very credibility is at stake on this 
massive construction project going forward.
  ``The Draft Environmental Assessment is so slanted and flawed that it 
adds more evidence to the growing view that there will be no meaningful 
oversight for this project and no meaningful input from the residents 
of Puerto Rico.
  ``I believe your decision, Colonel Pantano, shows a complete 
disregard for compelling evidence demonstrating little need for the 
project. It shows disregard for the opinion of other Federal agencies 
who have looked at the project. The decision disregards evidence of 
potential safety hazards to the people of Puerto Rico. This woefully 
slanted decision also gives credence to the suggestion of impropriety 
in matters related to this project and the inability of the U.S. Army 
Corps of Engineers to oversee this project.
  ``I believe this process should begin again in an open and 
transparent manner, that the process that has led to the decision 
should be fully investigated, and further efforts should be supervised 
by new leadership. I ask for a U.S. Army Office of Inspector General 
investigation immediately into the relationship between the government 
of Puerto Rico, the Army Corps of Engineers Jacksonville office, and 
the power companies and its contractors.
  ``Lobbyists who used to work for the Army Corps of Engineers should 
not be allowed to line their pockets at the expense of the safety of 
the people of Puerto Rico. Your boss, President Obama, stated `the cozy 
relationship between the regulators and the industry they regulate must 
come to an end.'
  ``I strongly support the President and agree with him completely. 
However, my misgivings about the pipeline project multiplied 
substantially when the project was abruptly removed from Army Corps' 
office in Puerto Rico and transferred to the Jacksonville office in 
Florida.
  ``There is clearly a cozy relationship between current Jacksonville 
staff that you supervise and former Jacksonville staff who now 
supervise and work for the private company consulted by and hired by 
the government of Puerto Rico to lobby and provide technical assistance 
for the project.''
  The result: The Army Corps of Engineers appears to have adopted all 
the power company's wholesale argument for moving forward. What a 
surprise. These include ignoring the advice of other Federal agencies 
that do not seem to have any cozy connections and relationships to the 
moneyed interests behind the pipeline, including warnings from the Fish 
and Wildlife Service--ignored; the Environmental Protection Agency--
ignored.
  Finally, I point out that it is an insult to the people of Puerto 
Rico to have released the Army Corps' report in the manner it was 
released. The report is exclusively in English, whereas the common 
language in Puerto Rico is Spanish. English is a language that hundreds 
of thousands of Puerto Ricans whose lives will be directly affected by 
the pipeline do not speak and cannot read. How are they supposed to 
give advice and consent?
  It is also personally insulting that the 30-day comment period 
occurred during the holiday season when the residents of Puerto Rico 
are especially focused on their family, and interestingly enough, 
Congress will be in recess.
  The people of Puerto Rico, including those who live humbly in the 
mountains and those who have derived their livelihoods from the land, 
deserve a government that protects their interest. They deserve to know 
when their safety and way of life are threatened, the government will 
protect them. This case reveals the opposite. It reveals a government 
agency that ignores the warnings of other government agencies and a 
wealth of facts regarding safety concerns and environmental impact. It 
reveals a government agency that responds more to well-connected 
lobbyists than advocates for the people of Puerto Rico. It reveals a 
government agency that is doing nothing--not doing the job that it was 
mandated to do.
  Mr. Speaker, I would like to include in the Record this petition, on 
behalf of many individuals and environmental groups from the Legal 
Assistance Clinic at the Law School at the University of Puerto Rico, 
to have the environmental assessment translated into Spanish.

                                               Escuela de Derecho,

[[Page 19095]]

                                   Universadad de Puerto Rico,

                                   San Juan, PR, December 6, 2011.
     Re Petition to Translate into Spanish the Draft Environmental 
         Assessment, Statement of Findings, Public Notice, and 
         Joint Permit Application for the Via Verde Natural Gas 
         Pipeline Project, Permit Application No. SAJ 2010-02881 
         (IP-EWG).
     Colonel Alfred A. Pantano,
     District Commander, U.S. Army Corps of Engineers, 
         Jacksonville District, San Marco Boulevard, Jacksonville, 
         FL.
       Dear Colonel Pantano: The United States Army Corps of 
     Engineers (USACE) has recently published a Draft 
     Environmental Assessment and Statement of Findings 
     (collectively, Draft EA) as part of its environmental review 
     process under the National Environmental Policy Act (NEPA) 
     for the Via Verde Natural Gas Pipeline project proposed by 
     applicant Puerto Rico Electric Power Authority (PREPA) under 
     permit application SAJ-2010-2881 (IP-EWG). This project 
     involves the construction of a 92-mile natural gas pipeline 
     that would cross the island of Puerto Rico, starting at the 
     municipality of Penuelas in the south coast, to Arecibo in 
     north coast and then east to San Juan. According to the Draft 
     EA, the purpose of the pipeline is to supply natural gas to 
     three power plants located in the north coast. The project 
     will have temporary and permanent impacts on 235 river and 
     stream crossings; 1,500 acres of land; 369 acres of wetlands 
     (including various types of important aquatic resources); the 
     biodiversity-rich and underground water-abundant northern 
     karst zone; private and public forested lands; natural 
     reserves; archaeological sites; areas of critical habitat for 
     endangered and/or threatened species; rural areas; densely 
     populated urban areas; and coastal areas. In all, the project 
     may affect over 40 endangered or threatened species, and will 
     put at permanent risk the lives of over 200,000 residents. 
     The majority of the people of Puerto Rico are against this 
     project, as shown by various polls, the 6,000 comment letters 
     your agency has received so far, and the public 
     demonstrations against the project involving tens of 
     thousands of Puerto Rican citizens. In addition, this project 
     has been the subject of vivid presentations on the floor of 
     Congress, as well as hundreds of news articles, including 
     attention from the New York Times, Washington Post, and other 
     national media. Not surprisingly, your agency has 
     acknowledged that this project is one of very high public 
     interest.
       We are submitting this letter on behalf of various 
     environmental groups and individuals. The conservation groups 
     include the Puerto Rico Chapter of The Sierra Club; Center 
     for Biological Diversity; Ciudadanos del Karso; Asociacion 
     Nacional de Derecho Ambiental; Comite Bo. Portugues Contra el 
     Gasoducto; Comite Utuadeno en Contra del Gasoducto; Sociedad 
     Ornitologa Puertorriquenia; Vegabajenios Impulsando 
     Desarrollo Ambiental Sustentable; Iniciativa para un 
     Desarrollo Sustentable; and Comite Toabajenio en Contra del 
     Gasoducto. These groups all share a common purpose: to 
     promote the general welfare of the communities they serve 
     through education and capacity building of its residents 
     concerning the adverse impacts of human activities on the 
     ecologic balance of natural systems and the importance of 
     restoring the environment and promoting conditions under 
     which human beings and the environment can exist in harmony 
     to fulfill economic, social and other needs of present and 
     future generations.
       Likewise, the individual clients of the environmental law 
     clinics of Vermont Law School, University of Puerto Rico 
     School of Law, and the Inter American University School of 
     Law; and of the Puerto Rico Legal Services, Inc. support this 
     petition as well. These individuals include Juan Cortes Lugo; 
     Sofia Colon Matos; Luis Guzman Melendez; Ana Oquendo Andujar; 
     Ivan Velez Gonzalez; Francisca M. Montero Colon; Sol Maria De 
     Los Angeles Rodriguez Torres; Ivan Carlos Belez Montero; 
     Aristides Rodriguez Rivera; Ada I. Rodriguez Rodriguez; Alex 
     Noel Natal Santiago; Miriam Negron Perez; Francisco Ruiz 
     Nieves; Silvya Jordan Molero; Ana Serrano Maldonado; Felix 
     Rivera Gonzalez; William Morales Martinez; Trinita Alfonso 
     Vda. De Folch; Alejandro Saldana Rivera; Dixie Velez Velez; 
     Dylia Santiago Collaso; Ernesto Forestier Torres; Miriam 
     Morales Gonzalez; Fernando Velez Velez; Emma Gonzalez 
     Rodriguez; Samuel Sanchez Santiago; Raquel Ortiz Gonzalez; 
     Maritza Rivera Cruz; Virginio Heredia Bonilla; Lilian Serrano 
     Maldonado; Yamil A. Heredia Serrano; Jean Paul Heredia 
     Romero; Pablo Montalvo Bello; Ramona Ramos Dias; Virgilio 
     Cruz Cruz; Candida Cruz Cruz; Amparo Cruz Cruz; Gilberto 
     Padua Rullan; Sabrina Padua Torres; Maribel Torres Carrion; 
     Hernan Padin Jimenez; Rosa Serrano Gonzalez; Jesus Garcia 
     Oyola; Sucesion de Ada Torres, compuesta por Carmen Juarbe 
     Perez, Margarita Forestier Torres y Ernesto Forestier Torres; 
     Maria Cruz Rivera; Cristobal Orama Barreiro; Haydee Irizarry 
     Medina; Miguel Baez Soto; and Gustavo Alfredo Casalduc 
     Torres.
       We anticipate that more groups and individual citizens will 
     join this petition in the coming days or weeks.
       The purpose of this letter is to formally request that the 
     USACE prepare a Spanish version of Draft EA and other key 
     documents, particularly the most recent Public Notice and 
     Joint Permit Application. In order for the public comment 
     period to provide a meaningful opportunity for public input 
     on a project of tremendous local interest and concern, it is 
     important that these translations are prepared and 
     distributed to the public before the commencement of the 
     public comment period. Once the USACE provides an official 
     Spanish version of the Draft EA and other key documents, the 
     USACE should provide a public comment period of at least 60 
     days in light of the complexity and magnitude of this 
     proposed project. In addition, we respectfully request that 
     the USACE provide public hearings in Puerto Rico with 
     translators available.
       There are ample statutory and regulatory provisions as well 
     as executive orders and judicial precedents which support our 
     requests, as discussed further below. Furthermore, compliance 
     with these requests is necessary if USACE intends to provide 
     affected communities and interested individuals throughout 
     the island of Puerto Rico with an adequate opportunity to 
     comment on the project, considering that less than 19% of 
     island residents consider themselves to be bilingual. The 
     residents of these communities often have valuable 
     information about places and resources that they value and 
     the potential environmental, social, and economic effects 
     that the proposed federal actions may have on those places 
     and resources. NEPA and other federal statutes, regulations, 
     and executive orders require USACE to provide concerned 
     citizens and organizations with access to enough information 
     to allow them to provide meaningful comments, and these laws 
     require USACE to take their comments into account. If the key 
     documents to be evaluated remain available only in a foreign 
     language, however, it will be too difficult for the affected 
     and concerned citizens and groups alike to meaningfully and 
     adequately comment on the project. In fact, the Draft EA and 
     other key documents include so much technical and difficult 
     to grasp information that even an English-speaking layperson 
     would have difficulty reading, analyzing, and commenting in 
     just 30 days.
       Fundamental principles of environmental justice warrant 
     that the Draft EA for a project of such magnitude must be 
     translated in the Spanish language and that the public 
     comment period be restarted and extended to 60 days once the 
     Spanish version of the EA is available to the public. The 
     USACE is bound to these principles by NEPA, the Council on 
     Environmental Quality Guidelines (CEQ guidelines), the 
     Executive Order on Federal Actions to Address Environmental 
     Justice, the Department of Defense Strategy on Environmental 
     Justice pursuant to the Executive Order, the U.S. 
     Constitution, and other legal authorities and precedents.
       Security issues also warrant a translation. The pipeline is 
     a safety risk to various thousands of people who will live, 
     work or commute daily near the pipeline's ROW. The Draft EA 
     recognizes this fact when it states that ``the addition of 
     the pipeline in the community decreases public safety.'' 
     Likewise the value of property might be affected depending on 
     the proximity to the ROW of the pipeline. Basic fundamental 
     principles of justice require that people put in harm's way 
     or whose property, may be affected be able to read and 
     understand the Draft EA which contains the basic findings of 
     the USACE regarding the risks of the proposed action to their 
     lives and property.


                        NEPA and CEQ Regulations

       The Draft EA for the proposed Via Verde Pipeline project 
     was prepared by the USACE pursuant to an environmental review 
     process required under NEPA. NEPA's environmental review 
     process has two major purposes: (1) for agencies to make 
     better informed decisions; and (2) for other interested 
     agencies and citizens alike to have an opportunity to 
     participate and provide input in the review process. Courts 
     have repeatedly interpreted the statute as requiring agencies 
     to grant meaningful and adequate participation to the public 
     by disclosing all non-exempted documentation the agency used 
     and by allowing the public to submit comments in a process 
     that guarantees that the agency will take into account the 
     public's comments.
       In light of these obligations, USACE has repeatedly 
     promised that it will take into account all the comments 
     submitted by the people of Puerto Rico. A 30-day period is 
     not enough time to give the people of Puerto Rico a 
     meaningful opportunity to read, analyze, evaluate and then 
     comment on this 110-page long Draft EA for this highly 
     complex and controversial project. Moreover, the USACE has 
     overlooked the fundamental fact that Puerto Rico is a 
     Spanish-speaking nation and the Draft EA, a, highly technical 
     document, and other key documents are written in the English 
     language. If affected and concerned citizens are not able to 
     read the key documents under review, their participation will 
     not be meaningful and adequate as the statute requires.
       Through NEPA, Congress ordered the Council on Environmental 
     Quality (CEQ) to issue regulations governing federal agency 
     implementation of the NEPA environmental

[[Page 19096]]

     review process. These CEQ regulations are binding on all 
     federal agencies. Section 1506.6 of the CEQ regulations, 
     regarding public involvement, states that agencies shall:
       (a) Make diligent efforts to involve the public in 
     preparing and implementing their NEPA procedures.
       (b) Provide public notice of NEPA-related hearings, public 
     meetings, and the availability of environmental documents so 
     as to inform those persons and agencies who may be interested 
     or affected.
       1. . . .
       2. . . .
       3. In the case of an action with effects primarily of local 
     concern the notice may include:
       (i) . . .
       (ii) . . .
       (iii) Following the affected State's public notice 
     procedures for comparable actions.
       (iv) . . .
       (c) . . .
       (d) Solicit appropriate information from the public.
       (e) . . .
       (f) Make environmental impact statements, the comments 
     received, and any underlying documents available to the 
     public . . . [emphasis added]
       When a Federal provision requires ``diligent efforts to 
     involve the public'', to ``inform those persons [. . .] who 
     may be interested or affected'', and to ``solicit appropriate 
     information from the public'' in a Spanish-speaking nation 
     like Puerto Rico, regarding a project so controversial and of 
     such a scope and magnitude as Va Verde, the only way to 
     comply with the provision is by providing the information' in 
     the common language spoken. Likewise, in the case of an 
     action with effects primarily of local concern, as in the 
     case of Va Verde, section 1506.6 (b)(3)(iii) orders the 
     agency to follow ``the affected State's public notice 
     procedures for comparable actions'' which for Puerto Rico 
     would be a draft EA in the Spanish language.
       CEQ regulations offer additional reinforcement in order to 
     guarantee an adequate public participation. For instance, 
     section 1502.8 of the CEQ guidelines state that 
     ``[e]nvironmental impact statements shall be written in plain 
     language and may use appropriate graphics so that 
     decisionmakers and the public can readily understand them'' 
     [emphasis added]. Courts have interpreted this ``plain 
     language'' provision as to require Federal agencies to 
     provide the public with comprehensive information regarding 
     environmental consequences of a proposed action and to do so 
     in a readily understandable manner. See Klamath-Siskiyou 
     Wildlands Center v. Bureau of Land Management, 387 F.3d 989 
     (2004), ``While the conclusions of agency expert are entitled 
     to deference, National Environmental Policy Act (NEPA) 
     documents are inadequate if they contain only narratives of 
     expert opinions, and the documents are unacceptable if they 
     are indecipherable to the public''; Earth Island Institute v. 
     U.S. Forest Service, C.A.9 (Cal.), 442 F.3d 1147 (2006), 
     certiorari denied 127 S.Ct. 1829, 549 U.S. 1278, 167 L.Ed.2d 
     318 (emphasis added), ``A final environmental impact 
     statement (FEIS) must be organized and written so as to be 
     readily understandable by governmental decisionmakers and by 
     interested non-professional laypersons likely to be affected 
     by actions taken under the FEIS'' [emphasis added]; Oregon 
     Environmental Council v. Kunzman 817 F.2d 484 (1987), 
     ``Readability requirement of Council on Environmental Quality 
     regulation mandates that environmental impact statement be 
     organized and written so as to be readily understandable by 
     governmental decision makers and by interested 
     nonprofessional laypersons likely to be affected by actions 
     taken under the environmental impact statement'' [. . .] 
     ``Upon review of environmental impact statement, parties may 
     introduce evidence concerning reading level of affected 
     public and expert testimony concerning indicia of inherent 
     readability. National Environmental Policy Act of 1969, 
     Sec. 102, 42 U.S.C.A. Sec. 4332; {time} 5 U.S.C.A. 
     Sec. 706(2)(A, D)'' [emphasis added]. See also  National 
     Resources Defense Council, Inc. v. United States Nuclear 
     Regulatory Comm'n, 685 F.2d 459, 487 n. 149 (D.C.Cir.1982); 
     Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87 (1983); and 
     Warm Springs Dam Task Force v. Gribble, 78 F.Supp. 240, 252 
     (N.D.Ca1.1974), aff', 621 F.2d 1017 (9th Cir.1980). These 
     requirements for EISs apply equally to EAs, as indicated in 
     the CEQ regulations' use of the term ``environmental 
     documents'' rather than EISs alone.
       In the case of Puerto Rico, a Draft EA that is highly 
     technical and written in the English language is 
     ``undecipherable'' and not ``readily understandable'' in 
     order be properly assessed and commented by lay persons whom 
     in their wide majority are not fluent in the English 
     language.

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