Legalectric

Lake Pepin on a very warm blustery day last week

There’s a bill out there that will eliminate Minnesota’s Environmental Quality Board and shove that work over to the MPCA, at the same time, gutting DNR and MPCA review by linking to funding or lack thereof.  Shifting preparation of environmental documents to the project applicant.  This is not crying wolf, this is happening, it is going through committees in both House and Senate, and I’m at a loss to describe how awful this is. Here’s the point, in short:

Mindful that defunding is a primary means to neuter an agency, check this, for the DNR, but repeated as amendment to 116.07 for Pollution Control Agency in lines 10.3-10.15:

Look at line 3.32 “nor shall it expire without the consent of the permittee.”  Gutting DNR and MPCA authority.  Failure to fund agencies is such a problem that the MPCA has a backlog of expired permits.  This means that permits would go on and on and on, because permit violations are not usually an “imminent threat” but instead a long term cumulative impact.

How about this — earth to Mars, environmental review is not decisional, nothing should be deemed approved because an EIS is approved:

The project applicant prepares the Draft Environmental Impact Statement?  WHAT?!?!

Still picking out more specifics…

Bottom line, Minnesotans, here’s the “TO DO” of the day.  Contact the House and Senate authors, and send a quick round of emails or call the House Ways & Means and Senate Environment and Natural Resources Finance.  Focus on the authors and Republican members.  Tell them to vote this bill DOWN!  Contact info below.

Here are the House authors:

rep.dan.fabian@house.mn (651) 296-9635, rep.dale.lueck@house.mn (651) 296-2365, rep.steve.green@house.mn (651) 296-9918, rep.josh.heintzeman@house.mn (651) 296-4333

House status: TEXT.  On March 8th it was re-referred to House Ways & Means Committee. No meeting scheduled yet.  Contact the House Ways & Means Committee members — their emails:

rep.jim.knoblach@house.mn, rep.bob.vogel@house.mn, rep.lyndon.carlson@house.mn, rep.sarah.anderson@house.mn, rep.dave.baker@house.mn, rep.tony.cornish@house.mn, rep.greg.davids@house.mn, rep.matt.dean@house.mn, rep.bob.dettmer@house.mn, rep.steve.drazkowski@house.mn, rep.dan.fabian@house.mn, ep.pat.garofalo@house.mn, rep.bob.gunther@house.mn, rep.rod.hamilton@house.mn, rep.alice.hausman@house.mn, rep.debra.hilstrom@house.mn, rep.frank.hornstein@house.mn, rep.tina.liebling@house.mn, rep.jenifer.loon@house.mn, rep.paul.marquart@house.mn, rep.erin.murphy@house.mn, rep.bud.nornes@house.mn, rep.gene.pelowski@house.mn, rep.jeanne.poppe@house.mn, rep.paul.torkelson@house.mn, rep.dean.urdahl@house.mn, rep.jean.wagenius@house.mn

Here are the Senate authors:

sen.bill.ingebrigtsen@senate.mn (651) 297-8063, sen.carrie.ruud@senate.mn (651) 296-4913,  Sen. Paul Gazelka (link to form)(651) 296-4875, Sen. David Tomassoni (link to form)(651) 296-8017.

Senate Status: TEXT – was Amended and amendment not posted.  TWO Committee meetings scheduled, one TODAY, BUT status is conflicting:

Here’s the conflict, says it’s already been through State Gov’t Finance despite above 5:30 schedule!

So I think the best bet is to contact Environment & Natural Resources Finance:

sen.bill.ingebrigtsen@senate.mn, sen.carrie.ruud@senate.mn, sen.erik.simonson@senate.mn, sen.bill.weber@senate.mn

And links to those using web form: Sen. David Tomassoni, Sen. Thomas Bakk, Sen. Dziekic, Sen. Justin Eichorn, Sen. Foung Hawj, Sen. Mark Johnson, Sen. Andrew Lang, Sen. Andrew Mathews,

DAILY TO DO: Quick, send emails to withdraw/vote no on HF 1666 and SF 1310

The Minnesota legislature is trying to repeal the legislative mandate to the MPCA for rulemaking on silica sand particulate emissions!  Why is this a priority?  How is it in the public interest?  This effort to quash rulemaking is rather odd because the silica sand boom has gone bust, Bakken BOOM! has gone bust, the market has decided and there are few (no?) plans for new silica sand mines in Minnesota.  Now is the best time to enact protective legislation, while there’s no pressure for new mining permits.

The legislature passed the following rulemaking mandate in CHAPTER 14–S.F.No. 1086 way back in 2013 (keep in mind this is 2017, FOUR YEARS LATER and it is STILL not done!) with the exemption from Minnesota Statutes section 14.125 “no time constraint” added by moi:

    Sec. 105. RULES; SILICA SAND.
(a) The commissioner of the Pollution Control Agency shall adopt rules pertaining
to the control of particulate emissions from silica sand projects. The rulemaking is exempt from Minnesota Statutes, section 14.125 [no time deadline].
(b) The commissioner of natural resources shall adopt rules pertaining to the
reclamation of silica sand mines. The rulemaking is exempt from Minnesota Statutes, section 14.125 [no time constraint].
(c) By January 1, 2014, the Department of Health shall adopt an air quality
health-based value for silica sand.
(d) The Environmental Quality Board shall amend its rules for environmental
review, adopted under Minnesota Statutes, chapter 116D, for silica sand mining and processing to take into account the increased activity in the state and concerns over the size of specific operations. The Environmental Quality Board shall consider whether the requirements of Minnesota Statutes, section 116C.991, should remain part of the environmental review requirements for silica sand and whether the requirements should be different for different geographic areas of the state. The rulemaking is exempt from Minnesota Statutes, section 14.125 [no time constraint].
EFFECTIVE DATE.This section is effective the day following final enactment.

There are identical bills afoot, HF 1666 and SF 1310 to eliminate the LEGISLATIVE MANDATE of rules regarding silica sand particulate emissions:

WHAT?  Who’s behind this?  Mining industry?  Given Sen. Tomassoni is one sponsor, perhaps, and given former Sen. Saxhaug’s nastiness about the enabling legislation, even more likely.  MPCA?  Given their foot dragging and resistance to citizen involvement, perhaps.  Back when this rulemaking was just getting going, the MPCA was against having a Citizens Advisory group is authorized by Minn. Stat. 14.10:

14.101 ADVICE ON POSSIBLE RULES.

Subd. 2.Advisory committees.

Each agency may also appoint committees to comment, before publication of a notice of intent to adopt or a notice of hearing, on the subject matter of a possible rulemaking under active consideration within the agency.

And the MPCA’s objection:

UPDATE: Corps grants easement to Dakota Access LLC

You may have read tRump’s Memorandum pushing the Army Corps of Engineers to ram through the Dakota Access pipeline:

Trump_Memorandum Dakota Access

From the Stanley Gazette:

Breaking News: U.S. Army Corps of Engineers Ready to Grant Easement for DAPL

And from the DC District Federal Court, here are the filings:

Construction of the Dakota Access Pipeline – Memorandum – Document No. 207-02032

The Army rolled, and here are the documents stating intent to issue the DAPL easement across Lake Oahe, and the Notice of Termination of the Environmental Impact Statement:

ACoE_Notice Regarding Recently Issued Documents

Ex_1_Notice to Congress

Ex_2_Compliance with Presidential Memorandum

Ex_3_To Federal Register_Notice of Termination

How is this anything but “arbitrary and capricious” action on the part of the Army Corps of Engineers?

As we know, tRump signed a “Memorandum” (note, it is NOT an “Executive Order”) to ram through DAPL.  Here’s the cut and paste of the Memorandum, also here at the White House Memoranda page:

Trump_Memorandum Dakota Access

One part I’m particularly concerned with is the second paragraph, where the Army Corps is ordered to consider rescinding or modifying the denial of the permit, and whether to withdraw the Notice of Intent and request for Scoping Comments for the Environmental Impact Statement:

(ii) consider, to the extent permitted by law and as warranted, whether to rescind or modify the memorandum by the Assistant Secretary of the Army for Civil Works dated December 4, 2016 (Proposed Dakota Access Pipeline Crossing at Lake Oahe, North Dakota), and whether to withdraw the Notice of Intent to Prepare an Environmental Impact Statement in Connection with Dakota Access, LLC’s Request for an Easement to Cross Lake Oahe, North Dakota, dated January 18, 2017, and published at 82 Fed. Reg. 5543;

Really.  That’s tRumpspeak for “Issue the Permit, Who Needs an EIS!”  So methinks it’s VERY important to get a lot of detailed scoping comments in ASAP!

What are Scoping Comments?  It’s kind of a term of art, they are comments laying out what you think should be covered in the Environmental Impact Statement.  It’s a “broadening” exercise, one where you bring up all the things that could be, should be, relevant and investigated, disclosed, analyzed, in the Environmental Impact Statement.  Form letters and postcards won’t cut it, this requires a little time and thought, and because you can email them, it’s pretty easy.  Just be specific about what issues should be considered.  Because they’re looking for “alternative routes” I wouldn’t give them any, because if they put it anywhere, it’s a problem, so I’d recommend instead saying that moving the pipeline doesn’t lessen the odds of rupture, failure, corrosion, and that the pipeline is too much of a rupture waiting to happen to route anywhere!

Here’s the Notice:

Notice of Intent to Prepare an Environmental Impact Statement

pdf of Notice: 017-00937_Federal Register – Notice EIS

Scoping comments are due by February 20, 2017.  By mail, and they ask that you include your name, return address, and “NOI Comments, Dakota Access Pipeline Crossing” on the first page of your written comments:

Gib Owen

Office of the Assistant Secretary of the Army for Civil Works

108 Army Pentagon

Washington, DC 20310-0108

By email to gib.a.owen.civ@mail.mil – use Subject: NOI Comments, Dakota Access Pipeline Crossing

They say they want comments about these issues:

(1) Alternative locations for the pipeline crossing the Missouri River;

(2) Potential risks and impacts of an oil spill, and potential impacts to Lake Oahe, the Standing Rock Sioux Tribe’s water intakes, and the Tribe’s water, treaty fishing, and hunting rights; and

(3) Information on the extent and location of the Tribe’s treaty rights in Lake Oahe.

… BUT… don’t limit your input — get creative, be specific, really think about impacts, about connected actions, about the entire length of this pipeline, about each of the bodies of water, the archeological features, protected wildlife areas, homes right next to the line, aquifers with so many wells drawing their water supply, nearby transmission lines which are known to corrode pipelines if too close.  In the Notice, they specifically state, “The range of issues, alternatives, and potential impacts may be expanded based on comments received in response to this notice and at public scoping meetings.”  So now it’s our job to be very, very specific about the broad range of issues to be included in the Environmental Impact Statement.

There’s been a flurry of activity, and finally they posted the actual documents so we can see what’s going on, or what won’t be going on.  This was part of my “One a Day” plan to send off a missive to the White House every day, something of substance.  When the Contact page was blank on Monday morning, I started calling, ALL DAY LONG, and got through around 7 p.m., when a human answered, and hung up.  I called back, got that same human, who wouldn’t tell me who I should talk to about the Executive Orders (presumed that’s what they were as that’s what was said) and said the Comment office person was gone so I had to leave it online, and she got pissy when I said that the Comment page was blank, and hung up again.  OK, whatever…

Civics Lesson from USA Today, Presidential memoranda vs. executive orders. What’s the difference?

Here are the Memoranda thus far from the White House page (these are not required to be published in the Federal Register, so ???, but they are now on the White House Memoranda page:

Presidential Memorandum on January 24, 2017

Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing

Presidential Memorandum on January 24, 2017

Presidential Memorandum Regarding Construction of American Pipelines

Presidential Memorandum on January 24, 2017

Presidential Memorandum Regarding Construction of the Keystone XL Pipeline

Presidential Memorandum on January 24, 2017

Presidential Memorandum Regarding Construction of the Dakota Access Pipeline

Presidential Memorandum on January 23, 2017

Presidential Memorandum Regarding the Hiring Freeze

Presidential Memorandum on January 23, 2017

Presidential Memorandum Regarding Withdrawal of the United States from the Trans-Pacific Partnership Negotiations and Agreement

Presidential Memorandum on January 23, 2017

Presidential Memorandum Regarding the Mexico City Policy

Presidential Memorandum on January 20, 2017

Memorandum for the Heads of Executive Departments and Agencies

Now maybe they’ll have the routine down and keep up with what they’re doing.  Drives me crazy to be loating around in the dark — it’s hard enough to know or guess what these might mean in practice, but without an actual document to look at, it’s just blather.  Well, it’s just blather anyway, but here it is.  Read it and get busy!