ELI Report
Author
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
2

Adaptation in Action Institute shifts course for Kazakhstani officials online using Zoom, helping the country craft its Environmental Code

For more than three years, ELI has worked with Kazakhstan’s Department of Climate Policy and Green Technologies, amending the national Environmental Code to incorporate climate change adaptation.

The project falls under the U.S. Agency for International Development’s C5+1 National Adaptation Planning Program, which expands the capacities of Central Asian countries to engage in planning under the UN Framework Convention on Climate Change.

Although Kazakhstan faces a number of related environmental challenges — including increased aridity, desertification, and extreme weather events — the country has not yet accounted for adapting to climate change in its legal framework.

In 2019, ELI collaborated with climate specialists from Abt Associates to help the Kazakhstani government develop a draft chapter for its code, titled Public Administration in the Field of Adaptation to Climate Change.

The revisions, which set forth climate change adaptation norms and processes, as well as new competencies of governmental bodies, are currently under review by the national parliament. The lower house has already adopted the revisions. ELI also assisted in developing draft rules for implementing the proposed provisions and helped write methodological guidance on implementing the adaptation processes set forth in the law.

Once the proposed climate change adaptation provisions are adopted, Kazakhstani government staff will need to implement the law. Recognizing a need to build familiarity with the new provisions, ELI hosted an online training course to build the capacity of government staff. Held over 10 days last summer, the class was organized in collaboration with the national climate deparment, with financial support from USAID.

The objective of the course was to familiarize supervisors, experts, and staff with adaptation-related provisions of the code. The training also explained related rules and methodological guidance. Attendees received an overview of climate change impacts in Kazakhstan and the country’s international obligations under the Paris Agreement related to climate adaptation.

Lectures explored experiences in climate adaptation from other countries, as well as approaches — such as conducting vulnerability assessments — that can be used at various stages of the adaptation process.

Participants consisted primarily of government staff working in sectors relevant to adaptation, such as agriculture, water resources, forestry, and protection of citizens. Other participants represented NGOs, science institutes, and other stakeholders. A total of 166 participants attended the course, and 93 successfully passed the final test and received certificates of completion.

Originally intended as an in-person training course, the program transitioned to an online format over Zoom due to the pandemic. All the course lectures were recorded (either in Russian or recorded in English and dubbed into Russian), and recordings were made available to all the training participants, providing them flexibility in when to view the videos. Near the end of the course, the Institute also held a live discussion with the lecturers to provide training participants an opportunity to ask questions about the course materials.

The training session received enthusiastic feedback, both for its structure and content, and represented one of many ways ELI has innovated approaches to online events during the Covid-19 pandemic.

ELI’s work in Kazakhstan is a continuation of over a decade of work supporting climate change adaptation law, including projects on adaptation in coastal areas and managing biodiversity in a changing climate.

Helping citizens to review impact of river sediment diversions

ELI’s Gulf of Mexico team works to advance the recovery, restoration, and ecological resilience of the region following the 2010 Deepwater Horizon oil spill. The Institute increases public participation in multiple restoration planning processes, including by supporting local and regional organizations, tracking and reporting on restoration funding, and helping communities understand how to participate in public comment processes.

Recently, ELI has helped local partners engage citizens in processes related to the proposed Mid-Barataria Sediment Diversion, for which a draft environmental impact statement and draft restoration plan were released in March.

Sediment diversions are designed to reintroduce natural delta processes and build landmass. Due in part to decades of building levees and flood control structures on the Mississippi River, the delta and Louisiana coastline have lost thousands of square miles of land. Through gated structures in the levee system, sediment diversions reintroduce fresh water and minerals to nearby basins, rebuilding wetlands in the process.

Project proponents say that the Mid-Barataria Sediment Diversion would create or save from erosion as much as 47 square miles of land in the fifty years following construction. Anticipated benefits include improved soil density, wildlife habitat, increased hurricane resilience, and a boon to the economy through job creation and a rise in business sales. However, concerns remain about mitigating potential impacts on the region’s oyster and fishing businesses and on nearby dolphin populations, among other changes to the ecosystem.

ELI has assisted local partners by researching the legal landscape around the proposed project and releasing a fact sheet on public participation opportunities. The fact sheet explains how citizens can participate in public comment processes for two laws governing environmental reviews for the project: the National Environmental Policy Act, which requires development of an environmental impact statement, and the Oil Pollution Act, under which the Deepwater Horizon Natural Resource Damage Assessment is proceeding.

The Institute will also co-host a series of online community conversations, joining panelists from Louisiana’s Coastal Protection and Restoration Authority and the Louisiana Trustee Implementation Group, to complement formal public meetings.

Site aids water quality programs in engaging the public

For the past 13 years, ELI has conducted annual training workshops for state, tribal, territorial, and EPA staff regarding the Clean Water Act Section 303(d) Program, which identifies waters that do not meet standards and implements plans to restore and protect them. These workshops, supported by EPA, have prompted a wide variety of endeavors to further assist the program.

One of those endeavors has been a five-year cooperative agreement between ELI and EPA to develop a series of compendia of practices across the country for implementing various aspects of the 303(d) program. These resources facilitate knowledge-sharing across jurisdictions and generate more innovation.

Since 2016, ELI has published the “Compendium of Water Quality Restoration Approaches” and the “Compendium of State Approaches to Protection.”

In February 2021, ELI released its third installment, Approaches to Clean Water Communication, a collection of methods for communicating about water quality with the public and other less-technical audiences. The compendium helps programs strengthen engagement with the public, a key goal of water quality improvement programs.

With the assistance of a planning group composed of state, tribal, and EPA staff, ELI collected examples of communication methods through a questionnaire completed by water quality program staff from 44 states, 9 tribes, 4 territories, and the District of Columbia. This information was then distilled into a user-friendly website hosted by ELI.

The resource covers a wide range of communication methods, including websites, maps, social media, and videos. One section of the compendium assembles a library of “Story Maps” and “dashboards,” which are interactive digital tools used by water quality programs to display multimedia elements such as pictures and maps alongside text. The site organizes different types of communication methods in the most easily accessible fashion. For example, visual products such as signs and posters are on an easy-to-read Story Map page.

The compendium also provides summaries for key aspects of effective communication, such as presentations for public comment processes, ways to collect metrics and tools for measuring success, and translating products into multiple languages. As a free database, the compendium may be especially useful to smaller jurisdictions or programs with limited resources dedicated to communications.

Helping Kazakhstan Craft Its Environmental Code.

Weeding Out Pollution: ELI Innovation Lab makes headway with new industry on promoting sustainable growth of legal cannabis
Author
Anna Beeman - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
3

The burgeoning legal cannabis industry continues to be a hot button topic across the nation, especially as the environmental implications of cultivation emerge. David Rejeski, Kasantha Moodley, and Azi Akpan, the team behind ELI’s Innovation Lab, are building partnerships with stakeholders to advance the environmental performance of this new industry.

In 2017, the first industry estimate of energy use was made, 4.1 million megawatt-hours in one year, with demand set to increase by 162 percent in just 5 years. There are also several environmental and public health implications associated with the industry’s nutrient-rich water discharges, air emissions, pesticide use, plant waste, and packaging waste.

A total of 33 states have legalized marijuana for medical use. 10 of these states and Washington, D.C., have also legalized it for adult recreational use. With no federal oversight and a fragmented regulatory system, states and industry alike are challenged with addressing these concerns.

The Lab’s podcast series “Conversations with Environmental Disruptors” has brought together a diverse set of weed visionaries. ELI’s Akpan interviewed Kaitlin Urso on her role at Colorado’s state government Cannabis Environmental Assistance Program. Urso consults with cannabis cultivators on sustainability, and brings awareness about potential permitting requirements. Her job is to support cultivators in their compliance efforts, without imposing requirements or restrictions on these new and growing businesses.

She also promotes voluntary actions such as the installation of water collection and re-use systems and waste management systems. Air emissions are also a concern — terpenes emitted from cannabis plants are volatile organic compounds and can affect ozone levels when accumulated on a large scale. Urso strongly emphasizes the necessity to gather baseline data, quantify impacts, and determine benchmarks to inform environmental approaches to tackling these problems.

In a recent podcast titled “A Cannabis Cultivator — Breaking the Grass Ceiling,” Jesse Peters, founder of EcoFirma Farms, shows visitors to the ELI website his 23,000-square-foot, indoor, carbon-neutral farm operation in Portland, Oregon. The farm utilizes sensors and automation systems linked to a software platform that monitors and regulates the nutrient feed, light, and water needed for optimal plant growth.

Peters has made significant capital investments and explains how the added technology transformed the financial and environmental sustainability of EcoFirma Farms. He touts that automation and tracking has made EcoFirma much more successful and accountable, has saved costs on labor, and has successfully maintained the quality and quantity of products at a competitive price. Peters believes that technology development will play a crucial role in the sustainable growth of the industry.

Beyond these episodes and at the forefront of current efforts, the ELI Innovation Lab is developing and disseminating informative and accessible materials to promote understanding of industry-wide impacts and the actions (regulatory or voluntary) that could be taken to address them.

In April, ELI staff attended the National Cannabis Festival in D.C., where they distributed materials to raise awareness on lawful pesticide use for the cannabis industry. The materials were developed in collaboration with the American Bar Association’s Pesticides, Chemical Regulation, and Right-to-Know Committee.

The Lab will continue this work in the future through a series of educational materials focusing on the full spectrum of environmental challenges facing the industry.

Conference, ELR special issue showcase year’s best articles

In late March, ELI held the 12th Environmental Law and Policy Annual Review Conference in Washington D.C. Each year, Vanderbilt Law students work with an expert advisory committee and senior staff from ELI to identify the year’s best academic articles that present legal and policy solutions to pressing environmental problems, some of which are then presented at the conference.

In a panel on federal energy leasing, winning author Jayni Foley Hein of the Institute for Policy Integrity at NYU School of Law argued that the Department of the Interior should update fossil fuel leasing and royalty rates on federal lands to maximize public benefit and social welfare. Panelists Tommy Beaudreau of Latham & Watkins and Rebecca Fischer and Daniel Timmons of Wild Earth Guardians delved into how Hein’s proposed reforms could result in less fossil fuel production, fewer greenhouse gas emissions, and more revenue than under existing rules.

In another panel discussion, author Richard Schragger of University of Virginia Law School proposed that in order for cities to fight against state preemption of environmental laws they should forge alliances with national interest groups, powerful corporations, and metropolitan regions to preserve their power to regulate and promote their interests. Gus Bauman of Beveridge & Diamond, Kim Haddow of Local Solutions Support Center, and Lewis Rosman from the City of Philadelphia Law Department provided their perspectives on the challenges cities face in passing environmental legislation.

In the final panel, on free trade and selective enforcement of environmental laws, author Timothy Meyer of Vanderbilt University Law School argued that the World Trade Organization investigations of trade remedies should be reformed by creating a centralized enforcement procedure. Jay Campbell of White & Case, Sharon Treat from the Institute of Agriculture and Trade Policy, and Steve Wolfson of the Environmental Protection Agency discussed their analysis of the proposal based on their practitioner and policymaking experience.

The winning articles by Professor Hein, Professor Schragger, and Professor Meyer, as well as the comments from this year’s panelists, will be published in a special issue of ELR in August.

ELI 50th anniversary celebration rolls out series of policy events

Special programming in ELI’s 50th anniversary year recently featured themes of compliance and re-imagining governance.

In February, ELI co-hosted with Greenberg Traurig, LLP, a discussion about the foundational objectives of the Superfund law. Panelists from the firm and Exponent and the Chesapeake Legal Alliance delved into how these objectives have evolved over time. They talked about issues surrounding the remediation and cleanup of Department of Defense sites, approaches to working with regulatory agencies, and cutting-edge and emerging technologies for damage assessments and remediation.

The same month, ELI held a webinar that explored the opportunities presented by increased state autonomy in environmental protection. Moderated by Donald Welsh, executive director of the Environmental Council of the States, it featured experts in interstate environmental coordination and attorneys with compliance experience.

In line with the theme “re-imaging environmental governance,” ELI hosted a conversation in March about UN General Assembly Resolution 72/277, known as “Toward a Global Pact for the Environment.” While many experts agree that the measure could help fill the gaps in international environmental law by providing guidance and transparency for adjudication in courts, bolstering the importance of human rights in environmental protection, and promoting a greater integration of environmental principles in non-environmental fields, questions still remain.

Moderated by ELI’s Xiao Recio-Blanco, panelists discussed principles needed to realize the potential impact of the pact on the developing world. Panelists included Justice Antonio Herman Benjamin, minister of the National High Court of Brazil, Roy S. Lee, professor at Yale University School of Forestry and Environmental Studies, and Nicholas Robinson, professor at Elisabeth Haub School of Law at Pace University.

Programming in May will highlight wetlands protection and in June will feature gender and the environment. Join the Environmental Law Institute in discussing the forefront of policy issues as we celebrate 50 years of environmental progress.

Field Notes: 30th annual National Wetlands Awards on May 7

This year marks the 30th edition of ELI’s annual National Wetlands Awards. Since 1989, over 200 champions of wetlands conservation have been honored.

The program recognizes individuals who have demonstrated exceptional effort, innovation, and excellence in wetlands conservation at the regional, state, and local levels.

Please join the Environmental Law Institute at this year’s National Wetlands Award Ceremony, taking place on Tuesday, May 7, from 6 to 8 p.m. at the U.S. Botanic Gardens in Washington, D.C.

This year’s awards include the 30th Anniversary Lifetime Achievement Award, to be presented to Richard Grant of Narrow River Preservation Association at the ceremony. Categorical awards will go to Greg Sutter of Westervelt Ecological Services for the Business Leadership award, Joel Gerwein at California State Coastal Conservancy for the Conservation & Restoration award, Robert Thomas for the Education & Outreach award, Tom and Mary Beth Magenau of Tri-State Marine for the Landowner Stewardship award, Robert Gearheart of Arcata Marsh Research Institute for the Science Research award, and hydrologist Angela Waupochick of the Stockbridge-Munsee Band of Mohicans for the State, Tribal, and Local Program Development award.

ELI congratulates these awardees on their achievements in advancing wetlands protection through their outstanding leadership.

In January, expert panelists explored in an ELI public webinar how focused efforts in states of the upper Mississippi River that bring together farming, wastewater treatment, and state financing agencies can provide new funding for on-farm polluted runoff projects.

Panelists from Iowa, Illinois, and the National Association of Clean Water Agencies discussed how flexible funding structures that pair farmland with wastewater treatment providers can achieve targeted nutrient reduction in their respective states, and what they plan to achieve in the future.

Recent experience has shown that water and sewer financing programs can provide additional flexible funding for projects on farms while meeting the nutrient management goals of wastewater treatment authorities.

In an effort to improve communication and environmental compliance globally, the International Network for Environmental Compliance and Enforcement, whose secretariat ELI hosts, has created Compliance Conversations, a network and capacity-building tool to support those working in the environment, development, or justice spaces. Through webinars launched in February, INECE convenes individuals from all over the world to discuss the cutting-edge environmental challenges their communities are facing.

The goal of the platform is to connect participants with experts from a variety of different backgrounds, experiences, and disciplines.

The first set of compliance conversations explored how stakeholders in off-grid communities can work to facilitate greywater treatment and reuse standards, led by Clive Lipchin, director of the Center for Transboundary Water Management at the Arava Institute.

Since shortly after the 2010 Deepwater Horizon oil spill, the Environmental Law Institute has received support from the Walton Family Foundation to work with communities throughout the Gulf Coast region on advancing sustainable and inclusive restoration.

A primary focus of ELI’s work is on supporting public participation in the processes that govern disbursement of restoration funds under the Natural Resource Damage Assessment process and the RESTORE Act, as well as through the National Fish and Wildlife Foundation.

ELI’s Gulf Team regularly hosts training sessions and workshops for communities throughout the region. In February, ELI experts met with community leaders and local government officials in Gulfport, Biloxi, and Moss Point, Mississippi, to elucidate the process of developing and submitting proposals for restoration projects.

Legal weed means legal means to reduce pollution.

ELI Report
Author
Laura Frederick - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
5

Now in their 29th year, ELI’s National Wetland Awards are presented to individuals who have excelled in wetlands protection, restoration, and education.

“These men and women are on the forefront of protecting wetland resources in the face of development and climate impacts,” said ELI President Scott Fulton. “Through their dedication and achievements, they inspire wetlands protection across the country and worldwide.”

The ceremony kicked off with a keynote speech from Leah Krider, senior counsel, environment, health, and safety, at the Boeing Company, who described its expansion and mitigation efforts in South Carolina.

“Conservation and economic growth are not mutually exclusive. Conservation is not only good for the environment, for the communities. It makes good economic sense,” Krider said.

Awardees were recognized for their individual achievements in six categories:

Landowner Stewardship: For 28 years, William and Jeanette Gibbons and their family have devoted their time and financial resources to restoring degraded land and water on their property at Cedar Breaks Ranch in Brookings, South Dakota. They developed their property into a showcase of how various conservation practices can be seamlessly and profitably integrated into a working farm. They also use their land to further research and education on natural resource management approaches.

Science Research: Kerstin Wasson is the research coordinator at the Elkhorn Slough National Estuarine Research Reserve in Watsonville, California. She engages citizen scientists in collecting water quality data and counting migratory shorebirds. She launched an ecosystem-based management initiative that brought together stakeholders to develop a shared vision for restoration of the estuary’s wetlands. Kerstin has led collaborative projects across the network of National Estuarine Reserves.

Education and Outreach: Mark D. Sees has served as the manager of Florida’s Orlando Wetlands Park for over 20 years. In addition to managing the wetland treatment system, he has evolved the park into a center of public recreation and wetlands education and research. He initiated the annual Orlando Wetlands Festival to provide 5,000 local children and adults an opportunity to tour the wetlands to understand their ecological importance.

State, Tribal, and Local Program Development: Maryann M. McGraw, wetland program coordinator for the New Mexico Environment Department, initiated the state’s wetlands program and continues to provide vision and guidance to ensure the program reflects the importance of wetlands and riparian areas in the arid west. She developed rapid assessment methods for montane and lowland riverine wetlands, confined valleys, and playas of the Southern High Plains, which provides data needed to underscore state wetlands water quality standards and anti-degradation policies.

Conservation and Restoration: Latimore M. Smith is a retired restoration ecologist with The Nature Conservancy in Covington, Louisiana. A botanist and plant community ecologist, he spent over 15 years with the Louisiana Natural Heritage Program, documenting the ecology of habitats across the state. He was the first to formally describe a variety of previously undocumented natural wetland communities, including rare longleaf pine flatwood wetlands.

Wetlands Business Leader: Roy R. “Robin” Lewis III of Salt Springs, Florida, was the winner of this new award. For more than four decades, Lewis has been at the vanguard of wetland restoration and creation, designing or assisting in the design of over 200 projects around the world. He founded two environmental consulting companies and is president of Coastal Resource Group, Inc., a nonprofit educational and scientific organization. He also works with the Association of State Wetland Managers to provide education opportunities and resources.

Ramsar Convention event presages 13th conference of parties

Before the 29th Annual National Wetlands Awards ceremony — see facing page — ELI hosted a panel discussion on the Ramsar Convention on Wetlands of International Importance.

The treaty calls attention to the rate at which wetland habitats are disappearing, in part due to a lack of understanding of their importance. The convention provides an international framework for action and cooperation to promote “the conservation and wise use of all wetlands through local and national actions and international cooperation.”

The United States became a party to the convention in 1986 and has since designated 38 sites covering 4.5 million acres nationwide.

Attendees of the program, An Introduction to the Ramsar Convention, learned about efforts at the local, national, and international level to implement the accord.

Panelists included Cade London, Fish and Wildlife Service; Maryann M. McGraw, New Mexico Environment Department; and Barbara De Rosa-Joynt of the State Department.

After receiving an overview of the evolution of the convention and insight into the international community, the audience heard about the primary goals of Ramsar at the domestic level.

The convention covers a broad range of ecosystems considered as natural and man-made. The final presentation focused on one Ramsar site in New Mexico. The Roswell Artesian Wetlands is a desert ecosystem made up of a complex of springs, lakes, sinkholes and saline wetlands situated along the Pecos River. These wetlands support over 360 species of waterfowl as well as other animals and plants, including a number of rare, endemic, and endangered species.

As panelist De Rosa-Joynt explained, wetlands knowledge and science is consistently evolving and informing the future goals of the convention.

The 13th conference of the parties will be held this fall in Dubai. Themed “Wetlands for a Sustainable Urban Future,” the conference is expected to draw over 1,200 representatives from the parties. On the agenda are climate change; agriculture; so-called “blue carbon”; and polar wetlands.

Aiding China in coming to grips with country’s excessive pollution

In March, ELI, with the assistance of the Pillsbury law firm, prepared a report, Managing Environmental Protection and Economic Considerations Under Select U.S. Environmental Laws and Permitting Systems, for China’s Ministry of Environmental Protection. The study explains how the United States has balanced economic considerations and environmental protection through the Clean Air Act, Clean Water Act, the Resource Conservation and Recovery Act, and the Endangered Species Act.

ELI and the China Environmental Protection Foundation then held capacity building workshops at the Tianjin University Law School on environmental public interest litigation. While the focus was on participation of Chinese NGOs, other entities involved included Supreme People’s Court judges and prosecutors from the Supreme People’s Procuratorate.

Reforms to China’s Environmental Protection Law establish authorities for the government and the public alike, with the added ability of authorized civil society groups to file citizen suits. However, the success of these improved systems relies on a multifaceted system of accountability, with both the government and civil society playing roles. ELI is providing technical assistance, capacity building, and legal training to NGOs that have been approved by the civil authorities to engage in civil environmental litigation.

ELI staff attorney Zhuoshi Liu has been a leader in this public interest environmental litigation capacity building work, and in developing and hosting the workshops. A China native, Liu brings a wealth of knowledge to ELI’s China Program and the Institute as a whole.

Participants also benefitted from the expertise of ELI faculty from the Institute’s extended community.

Jeff Gracer of Sive, Paget & Riesel P.C., a member of ELI’s Leadership Council, traveled to China for January’s conference. The conferences included presentations from Leadership Council members Robert (Buzz) Hines of Farella Braun + Martel LLP, and former ELI President Leslie Carothers as well as longtime member Dan Guttman of New York University Shanghai.

Field Notes: ELI on the scene in flooded Ohio, polluted Gulf

In summer 2017, ELI Senior Science and Policy Analyst, Rebecca Kihslinger, and ELI’s partners at the University of North Carolina’s Institute for the Environment, traveled to Ottawa, Ohio, where state and village officials and residents and business owners came together to brainstorm on uses for flood buyout properties during the Making the Most of Ottawa’s Floodplain Buyouts Workshop.

Ottawa had purchased 55 floodplain properties since 2008, totaling 25 acres, using funding from government grants, Hazard Mitigation Grants, and Hazard Mitigation Assistance grants. Recently, the Federal Emergency Management Agency approved the first of three major projects planned to utilize these buyout properties by the Greenspace Development Committee. A once vacant lot will become Rex Center Park.

In continuation of ELI’s work in the Gulf of Mexico since the BP oil spill eight years ago, ELI traveled to Gulfport, Mississippi, to encourage public engagement efforts. To help members of the public better understand how to get involved, ELI, along with Environmental Management Services, Mississippi Commercial Fisheries United, and Public Lab, co-sponsored an event on Engaging in the Gulf Restoration Processes: How the Public Can Help Shape Restoration. The goal of this event was to provide participants with tools and information that they can use to more effectively take part in and understand the restoration and recovery efforts.

On April 16, ELI and co-sponsors convened a panel of environmental justice leaders, including keynote speaker Rep. Raul Ruiz, co-author of the proposed Environmental Justice Act of 2017.

Continuing discussions from a panel held last November, speakers explored climate justice, siting issues, ramifications of extreme weather events on marginalized communities, and ways in which practitioners can empower and support environmental justice communities through their own work.

A networking reception followed to further conversation and discussion of key topics at the forefront of environmental justice. On display was the newly released book from ELI Press Environmental Justice: Legal Theory and Practice, 4th Edition.

After announcing his $1.5 trillion infrastructure plan, President Trump has sought to streamline and expedite the environmental review and permitting process for projects under multiple environmental laws, ranging from the National Environmental Policy Act, Endangered Species Act, and Migratory Bird Treaty Act to the Clean Air and Clean Water acts.

Trump submitted to Congress an ambitious legislative “roadmap,” which proposes a number of far-reaching changes to the environmental review framework with a goal of shortening the process for approving projects to two years or less.

To examine these developments ELI and Arnold & Porter cohosted a conference entitled Infrastructure Review and Permitting: Is Change in the Wind? High-level government officials, practitioners representing industry and environmental NGOs, and congressional representatives were present to address the wide range of environmental permitting and review challenges across sectors, including transportation, energy, transmission, renewables, and more.

Panelists discussed the role of policy and litigation in shaping these developments over the next years and beyond.

Latest flock of National Wetlands Awards winners.

Coordination in the Natural Resource Damage Assessment Process: Project Planning and Selection
Author
Amy Streitwieser, Teresa Chan, and Jay Austin
Date Released
June 2018

Our report, Coordination in the Natural Resource Damage Assessment Process: Project Planning and Selection, describes some tools that are available to the Deepwater Horizon NRDA trustees during project planning and selection that could help coordinate their activities internally within the NRDA program and with external entities. In particular, it focuses on (1) project screening criteria; (2) strategic frameworks; and (3) joint restoration planning.

More Bog for the Buck
Author
Amy Streitwieser - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
2
Parent Article
Amy Streitwieser

For over seven years, ELI’s Gulf of Mexico team has been working to provide information to stakeholders about the restoration and recovery processes put in place after the oil spill. This includes the Gulf Coast Ecosystem Restoration Council founded by the RESTORE Act, which is set to receive almost $1.6 billion.

Last fall, the council announced that it was seeking public comment on a proposal to “approve implementation funding for the Robinson Preserve Wetlands Restoration project” in Florida. If approved, the council will allocate $1.8 million in RESTORE Act funds to implement the project, including a “reallocat[ion of] $470,910 from planning [funds] to implementation.” The project will restore 118 acres of habitat, including coastal upland, wetland, and open water habitats in the Tampa Bay Watershed.

How is the council able to reallocate nearly a half-million dollars in planning costs to implementation activities? The answer lies, in part, in its use of a mechanism intended to make environmental compliance more efficient: “adoption” of an existing environmental review document. When planning funds for the Robinson Preserve project were first allocated in 2015, it was expected that part of those funds would be used for “any needed environmental compliance activities,” including conformity with the National Environmental Policy Act. Since then, the council has identified and is proposing to adopt an existing NEPA document prepared by the project’s sponsor, the National Oceanic and Atmospheric Administration, in 2015: a programmatic environmental impact statement addressing a range of restoration types. If the council’s current proposal is approved, the funds that were originally allocated for planning will be reallocated to implementation.

There are mechanisms available under NEPA to help make the process more efficient, including the adoption of an existing EA or EIS. NEPA allows a federal agency to adopt an existing document (or portion of it), even if prepared by a different agency, “provided that the statement or portion thereof meets the standards for an adequate statement.” In cases where “the actions covered by the original [EIS or EA] and the proposed action are substantially the same,” the agency is not required to recirculate the document for comment prior to adopting it as final. 

Here, the council notes that “NOAA has determined that the specific implementation activities for which funding is being sought [for the Robinson Preserve project] are fully covered by [the existing] programmatic EIS, and therefore no further NEPA review would be needed.” If the current proposal is approved, the project can be implemented on an expedited basis and there will be additional money available for on-the-ground restoration activities.

This is not the first time the council has adopted existing NEPA documents to expedite implementation of a restoration project. Earlier this year, the council announced that it approved implementation funding for the Palm River Restoration Project in Florida, including the reallocation of $87,750 from planning to implementation. To do so, council staff worked with EPA, the Corps of Engineers, and the state of Florida “to identify an existing EA and associated environmental compliance documentation that could be used to support council approval of implementation funding for Palm River.” 

The corps had prepared the existing documentation when it issued a general permit for aquatic habitat restoration, establishment, and enhancement activities. The council similarly adopted an existing EA to expedite and increase implementation funding for its 2016 Apalachicola Bay Oyster Project.

As the pace of restoration in the gulf increases in the coming years, there are likely to be further opportunities for the council and other restoration programs (e.g., the natural resource damage assessment process) to identify existing NEPA documents that satisfy compliance requirements in whole or in part. This could lead to expediting restoration projects and possibly directing more funds to restoration implementation. 

ELI’s Gulf of Mexico team has released two papers related to expediting restoration projects: “Fast-Tracking ‘Good’ Restoration Projects in the Gulf of Mexico” (February 2017) and “Fast-Tracking Restoration: Addressing Resource Constraints in Federal Agencies” (December 2017). We are continuing to work on this issue in 2018 and hope to further contribute to the dialogue on this important topic.

More bog for the buck.

ELI Releases Overview of BP's Criminal Plea Agreement for Deepwater Horizon
November 2012

(Washington, DC) — The Environmental Law Institute (ELI) is releasing a concise overview of the November 15 criminal plea agreement between the U.S. Department of Justice and BP, which resolved criminal charges related to the Deepwater Horizon oil disaster. The plea agreement, which includes $4 billion in criminal fines and recoveries, represents the largest resolution of a criminal case in U.S. history.