March 28, 2015

Proposed American Energy Renaissance Act of 2015

A bill has been submitted in Congress that if adopted will completely alter Federal energy policies and restrict or eliminate the ability of federal agencies to regulate activities that have potentially significant environmental impacts.. The so called "American Energy Renaissance Act of 2015" addresses everything from fracking, the Keystone XL Pipeline, drilling in the outer continental shelf, tribal lands and drilling for oil in Alaska to renewable fuel, the budget deficit and regulation of greenhouse gases.

The proposed act also restricts judicial review of actions pursuant to the bill, creates short statutes of limitation to seek judicial review, short periods for action by the applicable agencies to process permit applications and prohibits recovery of legal fees for challenges to actions.

While there are many aspects of the bill that would impact Climate Change policies, the sections below repealing renewable fuel standards,and preventing the EPA from adopting regulations that regulate greenhouse gases seem to be the provisions that most directly reject the concept of Climate Change. Moreover the bill proposes the "term ‘air pollutant’ does not include carbon dioxide, water vapor, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, or sulfur hexafluoride."

These are some of the more troubling provisions from a climate change perspective.

"Subtitle B—Repeal Of Renewable Fuel Standard

Congress finds that the mandates under the renewable fuel standard contained in section 211(o) of the Clean Air Act (42 U.S.C. 7545(o))—

(1) impose significant costs on American citizens and the American economy, without offering any benefit; and

(2) should be repealed.

(a) In General.—Section 211(o) of the Clean Air Act (42 U.S.C. 7545(o)) is amended—

(1) in paragraph (2)—

(A) in subparagraph (A)—

(i) by striking clause (ii); and

(ii) by redesignating clauses (iii) and (iv) as clauses (ii) and (iii), respectively; and

(B) in subparagraph (B), by striking clauses (ii) through (v) and inserting the following:

“(ii) CALENDAR YEARS 2014 THROUGH 2019.—Notwithstanding clause (i), for purposes of subparagraph (A), the applicable volumes of renewable fuel for each of calendar years 2014 through 2019 shall be determined as follows:

“(I) For calendar years 2014 and 2015, in accordance with the table entitled ‘I–2—Proposed 2014 Volume Requirements’ of the proposed rule published at pages 71732 through 71784 of volume 78 of the Federal Register (November 29, 2013).

“(II) For calendar year 2016, the applicable volumes established under subclause (I), reduced by 20 percent.

“(III) For calendar year 2017, the applicable volumes established under subclause (I), reduced by 40 percent.

“(IV) For calendar year 2018, the applicable volumes established under subclause (I), reduced by 60 percent.

“(V) For calendar year 2019, the applicable volumes established under subclause (I), reduced by 80 percent.”;

(2) in paragraph (3)—

(A) by striking “2021” and inserting “2018” each place it appears; and

(B) in subparagraph (B)(i), by inserting “, subject to the condition that the renewable fuel obligation determined for a calendar year is not more than the applicable volumes established under paragraph (2)(B)(ii)” before the period; and

(3) by adding at the end the following:

“(13) SUNSET.—The program established under this subsection shall terminate on December 31, 2019.”.

(b) Regulations.—Effective beginning on January 1, 2020, the regulations contained in subparts K and M of part 80 of title 40, Code of Federal Regulations (as in effect on that date of enactment), shall have no force or effect.


Congress finds that—

(1) the Environmental Protection Agency has exceeded its statutory authority by promulgating regulations that were not contemplated by Congress in the authorizing language of the statutes enacted by Congress;

(2) no Federal agency has the authority to regulate greenhouse gases under current law; and

(3) no attempt to regulate greenhouse gases should be undertaken without further Congressional action.

(a) Repeal Of Federal Climate Change Regulation.—

(1) GREENHOUSE GAS REGULATION UNDER CLEAN AIR ACT.—Section 302(g) of the Clean Air Act (42 U.S.C. 7602(g)) is amended—

(A) by striking “(g) The term” and inserting the following:

“(g) Air Pollutant.—

“(1) IN GENERAL.—The term”; and

(B) by adding at the end the following:

“(2) EXCLUSION.—The term ‘air pollutant’ does not include carbon dioxide, water vapor, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, or sulfur hexafluoride.”.

(2) NO REGULATION OF CLIMATE CHANGE.—Notwithstanding any other provision of law, nothing in any of the following Acts or any other law authorizes or requires the regulation of climate change or global warming:

(A) The Clean Air Act (42 U.S.C. 7401 et seq.).

(B) The Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.).

(C) The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(D) The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

(E) The Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).

(b) Effect On Proposed Rules Of The EPA.—In accordance with this section, the following proposed or contemplated rules (or any similar or successor rules) of the Environmental Protection Agency shall be void and have no force or effect:

(1) The proposed rule entitled “Standards of Performance for Greenhouse Gas Emissions From New Stationary Sources: Electric Utility Generating Units” (published at 79 Fed. Reg. 1430 (January 8, 2014)).

(2) The proposed rule entitled “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units” (published at 79 Fed. Reg. 34829 (June 18, 2014)).

(3) Any other contemplated or proposed rules proposed to be issued pursuant to the purported authority described in subsection (a)(2).

(a) In General.—Neither the Secretary of the Army, acting through the Chief of Engineers, nor the Administrator of the Environmental Protection Agency shall—

(1) finalize the proposed rule entitled “Definition of Waters of the United States Under the Clean Water Act” (79 Fed. Reg. 22188 (April 21, 2014)); or

(2) use the proposed rule described in paragraph (1), or any substantially similar proposed rule or guidance, as the basis for any rulemaking or any decision regarding the scope or enforcement of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.).

(b) Rules.—The use of the proposed rule described in subsection (a)(1), or any substantially similar proposed rule or guidance, as the basis for any rulemaking or any decision regarding the scope or enforcement of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) shall be grounds for vacation of the final rule, decision, or enforcement action.

(a) In General.—Before proposing or finalizing any regulation, rule, or policy, the Administrator of the Environmental Protection Agency shall provide an analysis of the regulation, rule, or policy and describe the direct and indirect net and gross impact of the regulation, rule, or policy on employment in the United States.

(b) Limitation.—No regulation, rule, or policy described in subsection (a) shall take effect if the regulation, rule, or policy has a negative impact on employment."

-Steven Silverberg

March 23, 2015

FEMA Issues New State Mitigation Plan Review Guide

FEMA has issued new guidelines, effective as of March 2016, for evaluating State plans to reduce or eliminate risks from natural hazards. The new Guide establishes the new standards, now including climate change, that must be met by states in planning for reduction of the risks from natural disasters. Significantly, funding to the states can be impacted by the failure to meet these guidelines.

Referring to the Intergovernmental Panel on Climate Change Fourth Assessment Report, the Guide notes that "the challenge posed by climate change such as more intense storms, frequent heavy precipitation, heat waves, drought, extreme flooding and higher sea levels, could significantly alter the types and magnitudes of hazards impacting states in the future".

The Guide also requires that states assess their current capabilities to address risk and indicate how those capabilities may be strengthened. The plans must establish hazard mitigation goals and how the states plan to meet those goals. These should include everything from land use regulations to utilities, transportation and emergency planning.

The Guide notes that "critical" to planning is the need to incorporate "local and tribal" mitigation plan strategies. In this regard the Guide states that "all mitigation is local". Therefore states should provide training, technical assistance and "where available funding" to assist localities to be aware of state priorities, as well as hazard data and planning resources.

The state plans must not only look at current conditions but are required to assess development patterns. In this regard the guidelines indicate that mitigation priorities should not only include the next five years but should also look "outward to the long term " for the next ten or twenty years.

It should be interesting to see the reaction to the new Guide.

-Steven Silverberg

January 31, 2015

Federal Flood Risk Management Standard Established by Executive Order

On January 30,2015 the President issued an Executive Order fixing new standards for construction within a floodplain. The new Flood Risk Management Standard amends Executive Order 11988 of May 24, 1977.

The new standards impact projects where agencies " guarantee, approve, regulate, or insure any financial transaction which is related to an area located in an area subject to the base flood".

The old order established floodplains as areas with at a minimum of a one percent or greater annual chance of flooding. The new rule is broader and more stringent stating:

"The floodplain shall be established using one of the following approaches:

"(1) Unless an exception is made under paragraph (2), the floodplain shall be:

"(i) the elevation and flood hazard area that result from using a climate-informed science approach that uses the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science. This approach will also include an emphasis on whether the action is a critical action as one of the factors to be considered when conducting the analysis;

"(ii) the elevation and flood hazard area that result from using the freeboard value, reached by adding an additional 2 feet to the base flood elevation for non-critical actions and by adding an additional 3 feet to the base flood elevation for critical actions;

"(iii) the area subject to flooding by the 0.2 percent annual chance flood; or

"(iv) the elevation and flood hazard area that result from using any other method identified in an update to the FFRMS."

Paragraph 2 exceptions include issues of national security or emergencies.

The Executive Order goes on to direct:

"To the extent permitted by law, each agency shall, in consultation with the Water Resources Council, Federal Interagency Floodplain Management Task Force, Federal Emergency Management Agency, and Council on Environmental Quality, issue or amend existing regulations and procedures to comply with this order, and update those regulations and procedures as warranted."

-Steven Silverberg

November 8, 2014

UN IPCC Report

The most recent UN IPCC Report on Climate Change has been released. The full Report, issued on November 1, 2014, has a number of dire predictions, if no action is taken. These are highlighted in an additional document labeled "Headline Statements" which include:

"Surface temperature is projected to rise over the 21st century under all assessed emission scenarios. It is very likely that heat waves will occur more often and last longer, and that extreme precipitation events will become more intense and frequent in many regions. The ocean will continue to warm and acidify, and global mean sea level to rise....

Many aspects of climate change and associated impacts will continue for centuries, even if anthropogenic emissions of greenhouse gases are stopped. The risks of abrupt or irreversible changes increase as the magnitude of the warming increases....

Without additional mitigation efforts beyond those in place today, and even with adaptation, warming by the end of the 21st century will lead to high to very high risk of severe, widespread, and irreversible impacts globally (high confidence). Mitigation involves some level of co-benefits and of risks due to adverse side-effects, but these risks do not involve the same possibility of severe, widespread, and irreversible impacts as risks from climate change, increasing the benefits from near-term mitigation efforts.

Adaptation can reduce the risks of climate change impacts, but there are limits to its effectiveness, especially with greater magnitudes and rates of climate change. Taking a longer-term perspective, in the context of sustainable development, increases the likelihood that more immediate adaptation actions will also enhance future options and preparedness.

There are multiple mitigation pathways that are likely to limit warming to below 2°C relative to pre-industrial levels. These pathways would require substantial emissions reductions over the next few decades and near zero emissions of carbon dioxide and other long-lived greenhouse gases by the end of the century. Implementing such reductions poses substantial technological, economic, social, and institutional challenges, which increase with delays in additional mitigation and if key technologies are not available. Limiting warming to lower or higher levels involves similar challenges, but on different timescales."

-Steven Silverberg

September 6, 2014

World Water Week

This past week has been World Water Week. NASA has posted some interesting material to mark World Water Week, including an an animation showing our dependence on the oceans and the potential impacts of sea level rise.

The site notes there has been a sea level rise of 5 centimeters just since 1993 and illustrates the effect of a 2 meter rise (the model many are using for the year 2100) on various coastal areas.

-Steven Silverberg

July 30, 2014

Increased Costs of Delaying Action on Climate Change

The White House has issued a new report on the increased costs associated with delaying action on Climate Change. The report notes that taking action now, rather than waiting, is in some respects the same as purchasing an insurance policy. Plus, once carbon dioxide concentrations reach a certain point, there could be enormous increases in annual costs associated with increased temperature.

The summary of the report states in part:

"Based on a leading aggregate damage estimate in the climate economics literature, a delay that results in warming of 3° Celsius above preindustrial levels, instead of 2°, could increase economic damages by approximately 0.9 percent of global output. To put this percentage in perspective, 0.9 percent of estimated 2014 U.S. Gross Domestic Product ( GDP) is approximately $150 billion. The incremental cost of an additional degree of warming beyond 3° Celsius would be even greater. Moreover, these costs are not one-time, but are rather incurred year after year because of the permanent damage caused by increased climate change resulting from the delay.

An analysis of research on the cost of delay for hitting a specified climate target (typically, a given concentration of greenhouse gases) suggests that net mitigation costs increase, on average, by approximately 40 percent for each decade of delay. These costs are higher for more aggressive climate goals: each year of delay means more CO2 emissions, so it becomes increasingly difficult, or even infeasible, to hit a climate target that is likely to yield only moderate temperature increases."

-Steven Silverberg

May 24, 2014

House of Representatives Votes to Bar Defense Spending on Impacts of Climate Change

The House of Representatives voted this week to bar the Department of Defense from using appropriations to explore or address the impacts of climate change. In an amendment to a defense appropriations bill the following was added:

"None of the funds authorized to be appropriated or otherwise made available by this Act may be used to implement the U.S. Global Change Research Program National Climate Assessment, the Intergovernmental Panel on Climate Change’s Fifth Assessment Report, the United Nation’s Agenda 21 sustainable development plan, or the May 2013 Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis Under Executive Order."

The bill will now be taken up by the Senate.

-Steven Silverberg

May 11, 2014

Government Releases Climate Change Viewer

On May 9, 2014, the Secretary of the Interior announced the release of the National Climate Change Viewer. The Cimate Change Viewer is interactive, permitting the user to see two scenarios for changes up through 2099.

The description of the Viewer notes:

"The USGS National Climate Change Viewer (NCCV) includes the historical and future climate projections from 30 of the downscaled models for two of the RCP emission scenarios, RCP4.5 and RCP8.5. RCP4.5 is one of the possible emissions scenarios in which atmospheric GHG concentrations are stabilized so as not to exceed a radiative equivalent of 4.5 Wm-2 after 2100, about 650 ppm CO2 equivalent. RCP8.5 is the most aggressive emissions scenario in which GHGs continue to rise unchecked through the end of the century leading to an equivalent radiative forcing of 8.5 Wm-2, about 1370 ppm CO2 equivalent. To create a manageable number of permutations for the viewer, we averaged the climate and water balance data into four climatology periods: 1950-2005, 2025-2049, 2050-2074, and 2075-2099."

-Steven Silverberg

May 6, 2014

U.S. National Climate Assessment

Today the White House issued the latest National Climate Assessment. The summary of the report notes impacts in every region of the country and what it calls "key sectors of society and the U.S. economy."

Summarizing areas of impacts it notes:

"Climate-Change Impacts on Key Sectors of Society and the U.S. Economy

• Health: “Climate change threatens human health and well-being in many ways, including through impacts from increased extreme weather events, wildfire, decreased air quality, threats to mental health, and illnesses transmitted by food, water, and disease carriers such as mosquitoes and ticks. Some of these health impacts are already underway in the United States. Climate change will, absent other changes, amplify some of the existing health threats the Nation now faces. Certain people and communities are especially vulnerable, including children, the elderly, the sick, the poor, and some communities of color. Public health actions, especially preparedness and prevention, can do much to protect people from some of the impacts of climate change. Early action provides the largest health benefits.” (NCA Highlights: Human Health)

• Transportation: “The impacts from sea level rise and storm surge, extreme weather events, higher temperatures and heat waves, precipitation changes, Arctic warming, and other climatic conditions are affecting the reliability and capacity of the U.S. transportation system in many ways. Sea level rise, coupled with storm surge, will continue to increase the risk of major coastal impacts on transportation infrastructure, including both temporary and permanent flooding of airports, ports and harbors, roads, rail lines, tunnels, and bridges. Extreme weather events currently disrupt transportation networks in all areas of the country; projections indicate that such disruptions will increase. Climate change impacts will increase the total costs to the Nation’s transportation systems and their users, but these impacts can be reduced through rerouting, mode change, and a wide range of adaptive actions.” (NCA Highlights: Transportation)

• Energy: “Extreme weather events are affecting energy production and delivery facilities, causing supply disruptions of varying lengths and magnitudes and affecting other infrastructure that depends on energy supply. The frequency and intensity of certain types of extreme weather events are expected to change. Higher summer temperatures will increase electricity use, causing higher summer peak loads, while warmer winters will decrease energy demands for heating. Net electricity use is projected to increase. Changes in water availability, both episodic and long-lasting, will constrain different forms of energy production. In the longer term, sea level rise, extreme storm surge events, and high tides will affect coastal facilities and infrastructure on which many energy systems, markets, and consumers depend. As new investments in energy technologies occur, future energy systems will differ from today’s in uncertain ways. Depending on the character of changes in the energy mix, climate change will introduce new risks as well as new opportunities.” (NCA Highlights: Energy Supply and Use)

• Water: “Climate change affects water demand and the ways water is used within and across regions and economic sectors. The Southwest, Great Plains, and Southeast are particularly vulnerable to changes in water supply and demand. Changes in precipitation and runoff, combined with changes in consumption and withdrawal, have reduced surface and groundwater supplies in many areas. These trends are expected to continue, increasing the likelihood of water shortages for many uses. Increasing flooding risk affects human safety and health, property, infrastructure, economies, and ecology in many basins across the United States… Increasing resilience and enhancing adaptive capacity provide opportunities to strengthen water resources management and plan for climate-change impacts.” (NCA Highlights: Water)

• Agriculture: “Climate disruptions to agriculture have been increasing and are projected to become more severe over this century. Some areas are already experiencing climate-related disruptions, particularly due to extreme weather events. While some U.S. regions and some types of agricultural production will be relatively resilient to climate change over the next 25 years or so, others will increasingly suffer from stresses due to extreme heat, drought, disease, and heavy downpours. From mid-century on, climate change is projected to have more negative impacts on crops and livestock across the country – a trend that could diminish the security of our food supply… Climate change effects on agriculture will have consequences for food security, both in the U.S. and globally, through changes in crop yields and food prices and effects on food processing, storage, transportation, and retailing. Adaptation measures can help delay and reduce some of these impacts.” (NCA Highlights: Agriculture)

• Ecosystems: “Ecosystems and the benefits they provide to society are being affected by climate change. The capacity of ecosystems to buffer the impacts of extreme events like fires, floods, and severe storms is being overwhelmed. Climate change impacts on biodiversity are already being observed in alteration of the timing of critical biological events such as spring bud burst, and substantial range shifts of many species. In the longer term, there is an increased risk of species extinction. Events such as droughts, floods, wildfires, and pest outbreaks associated with climate change (for example, bark beetles in the West) are already disrupting ecosystems. These changes limit the capacity of ecosystems, such as forests, barrier beaches, and wetlands, to continue to play important roles in reducing the impacts of extreme events on infrastructure, human communities, and other valued resources… Whole-system management is often more effective than focusing on one species at a time, and can help reduce the harm to wildlife, natural assets, and human well-being that climate disruption might cause.” (NCA Highlights: Ecosystems)

• Oceans: “Ocean waters are becoming warmer and more acidic, broadly affecting ocean circulation, chemistry, ecosystems, and marine life. More acidic waters inhibit the formation of shells, skeletons, and coral reefs. Warmer waters harm coral reefs and alter the distribution, abundance, and productivity of many marine species. The rising temperature and changing chemistry of ocean water combine with other stresses, such as overfishing and coastal and marine pollution, to alter marine-based food production and harm fishing communities… In response to observed and projected climate impacts, some existing ocean policies, practices, and management efforts are incorporating climate change impacts. These initiatives can serve as models for other efforts and ultimately enable people and communities to adapt to changing ocean conditions.” (NCA Highlights: Oceans) "

-Steven Silverberg

March 30, 2014

IPCC Report Expected to Show Potential Worsening Climate Change Impacts

Portions of the new IPCC report have been leaked and they do not provide good news. As reported by National Geographic, the report comes with some dire predictions for the future unless action is taken.

"The leaked draft from Working Group II further warns: 'Impacts from recent extreme climatic events, such as heat waves, droughts, floods, and wildfires, demonstrate significant vulnerability and exposure of some ecosystems and many human systems to climate variability (very high confidence). These experiences are consistent with a significant adaptation deficit in developing and developed countries for some sectors and regions.'"

-Steven Silverberg

February 28, 2014

New Primer on Climate Change

The U.S. National Academy of Sciences and the Royal Society have published a primer of Climate Change facts. Entitled "Climate Change Causes and Facts" the booklet tries to provide a fact based summary of what scientists now know and don't know about Clinate change.

The stated purpose of the report is:

"The Royal Society and the US National Academy of Sciences, with their similar missions to promote the use of science to benefit society and to inform critical policy debates, offer this new publication as a key reference document for decision makers, policy makers, educators, and other individuals seeking authoritative answers about the current state of climate-change science. The publication makes clear what is well established, where consensus is growing, and where there is still uncertainty."

The report, which is easily downloadable notes in part:

"Recent estimates of the increase in global average temperature since the end of the last ice age are 4 to 5 °C (7 to 9 °F). That change occurred over a period of about 7,000 years, starting 18,000 years ago. CO2 has risen by 40% in just the past 200 years, contributing to human alteration of the planet’s energy budget that has so far warmed Earth by about 0.8 °C (1.4 °F). If the rise in CO2 continues unchecked, warming of the same magnitude as the increase out of the ice age can be expected by the end of this century or soon after. This speed of warming is more than ten times that at the end of an ice age, the fastest known natural sustained change on a global scale."

-Steven Silverberg

December 26, 2013

Impacts on Climate Change and Local Pollution Not Sufficiently Demonstrated to Block Coal Mining Lease

In a Christmas Eve decision, the D.C. Circuit Court rejected a challenge to the granting of a lease by the Bureau of Land Management to mine coal on public lands in Wyoming. In WildEarth Guardians, et. al. v. Jewell, two groups challenged the determination to lease certain public lands for coal mining, claiming that the environmental review under NEPA failed to adequately address issues related to increased local pollution and impacts on climate change from the activities to be conducted on the leased lands.

The Court found that the entities, as a result of the purposes of the entities and the underlying interests of their members had standing to bring the action:

“The procedural injury the Appellants claim—the allegedly deficient FEIS—is tied to their respective members’ concrete aesthetic and recreational interests. “[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727, 735)… plaintiff “must still demonstrate a causal connection between the agency action and the alleged injury.” City of Dania Beach, Fla., 485 F.3d at 1186; accord Ctr. for Law & Educ., 396 F.3d at 1160; see also Fla. Audubon Soc’y, 94 F.3d at 664–65 (“[A] procedural-rights plaintiff must show not only that the defendant’s acts omitted some procedural requirement, but also that it is substantially probable that the procedural breach will cause the essential injury to the plaintiff’s own interest.”). We think the Appellants have done so here because the local pollution that causes their members’ aesthetic and recreational injuries follows inexorably from the decision to authorize leasing on the West Antelope II tracts. ,,, The Appellants may challenge each of the alleged inadequacies in the FEIS because each constitutes a procedural injury connected to their members’ recreational and aesthetic injuries: Their members’ injuries are caused by the allegedly unlawful ROD and would be redressed by vacatur of the ROD on the basis of any of the procedural defects identified in the FEIS.”

In determining the merits, the Court noted that it must decide whether the actions were arbitrary or capricious. In undertaking that analysis, the Court noted its task was not to “fly speck” the record but merely to determine if the agency took a “hard look” at the issues. Analyzing the merits the Court determined there was no basis for overturning the determination and rejected all but two of the claims without discussion. Rejecting the claims that there was a failure to consider the impacts of the anticipated release from the coal on global warming the court held “current science does not allow for the specificity demanded by the Appellants, the BLM was not required to identify specific effects on the climate in order to prepare an adequate EIS.” The Court likewise rejected claims that there was a failure to consider the cumulative impacts of 11 other pending lease applications, noting whether those lease would ever be issued was speculative.

The Court further rejected the claim that there was a failure to address reasonable alternatives. In noting that WildEarth claimed a number of other alternatives should have been considered the Court stated:

“We sense a bit of sandbagging here. The PRBRC participated in the scoping hearing that preceded the draft EIS and submitted written comments on the draft EIS and WildEarth submitted written comments on the draft EIS that specifically addressed the draft’s discussion of reasonable alternatives. At no point did either WildEarth or the PRBRC mention the list of alternatives WildEarth raised at the last minute. To be sure, the BLM invited written comments on the FEIS, see 40 C.F.R. § 1503.1(b), and it had the opportunity to respond before it issued the ROD. But WildEarth’s final comments did not really respond to the FEIS; instead, they raised new issues.”

The remaining claim related to the impacts of pollution on the local ozone levels. The Court again rejected this claim finding that the analysis in the FEIS was adequate.

“The Appellants’ objections to the BLM’s analysis boil down to a dispute about the adequacy of using projected emissions of ozone precursors—like NOx and NO2—as proxies by which to analyze the impact of future ozone levels. They point to one report in the record observing that there is not a one-to-one correlation between NOx and ozone levels because ozone produced per molecule of NOx emissions varies considerably depending on local conditions….‘The NEPA process involves an almost endless series of judgment calls,’ and ‘the line-drawing decisions necessitated by the NEPA process are vested in the agencies, not the courts.’ ” Duncan’s Point Lot Owners Ass’n, Inc. v. FERC522 F.3d 371, 376 (D.C. Cir. 2008) (quoting Coal. On Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66 (D.C. Cir. 1987)) (alterations omitted). It may have been possible or even prudent for the BLM to separately model future ozone levels but we think that, given the limitations on such modeling and the critical role NOx plays in ozone formation, the BLM’s projections and extensive discussion of NOx and NO2 emissions suffice.”

-Steven Silverberg