Environmental Law Series: NEPA, Wetlands Protection, & Habitat Conservation Plans

Episode Notes

Transcript

[Music]

Mark Squillace: We can’t always control what happens on private lands or what happens when state lands or the lands in other countries but we can still think about the opportunities that we have and we can communicate with the people who could hopefully bring about the kinds of solutions that I think to some at least seem more obvious once you engage in this kind of planning, once you start looking at a map and looking at the resources that exists in this broad area. You can kind of figure out where the appropriate places are to put development and what are the appropriate places are to leave more or less untouched in order to protect the important resources that we have.

Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

[Music]

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a blog named ‘May It Please The Court’ and I have two books titled ‘How to Get Sued’ and ‘The Sled.’

Today on Lawyer 2 Lawyer, we’re going to continue our series on environmental law where we cover cradle to grave treatment of chemicals and our laws on environmental biology. In today’s episode, we’re going to discuss the National Environmental Policy Act, Wetlands Protections, and Habitat Conservation Plans to as well as mining and petroleum and land use.

And to speak more on this topic, our guest today is Professor of Law Mark Squillace from the University of Colorado law school where his specialty is natural resources law. Back in 2000, Professors Squillace took a lead from law teaching to serve as special assistant to the solicitor at the United States Department of the Interior. In that capacity, he worked directly with Secretary of the Interior Bruce Babbitt on a wide range of legal and policy issues. Welcome to the show Mark.

Mark Squillace: Thanks for having me Craig.

J. Craig Williams: Well Mark, we have some exciting things to talk about today including your recent testimony on Capitol Hill but let’s start the show by talking about how you got involved with environmental law and your specialty of natural resources law.

Mark Squillace: Interesting question. So I was pretty interested in politics right towards the end of my college career many years ago and was sort of scoping around. I was a math major in college. I had pretty much completed all my requirements for math. But after that experience getting involved in politics, I just felt like I wanted to do something more with my life than become an actuary or whatever one might do with a math degree. And so I ended up thinking hard about how I could maybe help facilitate some important changes in some issues that I cared about it. And it turned out environmental law and natural resources law was kind of the area that I focused on and I ended up going to law school and have been engaged on these issues really ever since I started law school.

J. Craig Williams: Let’s talk about a definition of natural resources law. What does it actually encompass?

Mark Squillace: Yeah, so it’s an interesting question because so many people focus on or talk about environmental law and here at the University of Colorado, we think more in terms of natural resources law in part because we’re located here in the Western United States where everything really seems to be connected to the land and maybe the water I guess you would say as well. And so, when we’re thinking about the kinds of issues that come up in involving environmental or natural resources law, we’re usually talking about impacts on lands, impacts on wildlife and other species impacts on water. And it just seems that natural resources is a more encompassing kind of phrase than environmental law.

I should say that environmental law is obviously an important part of this and there are certainly a number of issues that arise with wide range of environmental laws that we have in our country. But I think that natural resources connote a somewhat different sort of emphasis I guess I would say on these resource-based issues.

J. Craig Williams: We have some pretty important things to be talking about. Let’s talk about your testimony up on Capitol Hill recently.

Mark Squillace: So, I was honored to have the opportunity to appear before a House subcommittee on energy and mineral resources and I think evolved in part because of a lot of concerns in the Congress about the need to streamline decision-making. You know, we’ve been talking about how we can make sure that we have the resources that we need to produce the electricity that we need and at the same time deal with the important issues of climate change.

And so, there has been some concern about the ability of our government agencies to approve renewable energy projects to get moving with building the kinds of batteries that we’re going to need for our transportation sector and making sure that government decision-making isn’t bogging things down, holding things up in a significant way. So I think that was probably something that instigated some of the debate that we were having on the Hill but it came down to a couple of proposed bills.

(00:05:08)

These were proposed bills by the Republicans and one of them essentially involved opening up public lands to mining in a way that I found actually fairly shocking because we currently operate on public lands under a law called the General Mining Law of 1872 and it really gives fairly broad range of opportunities for anybody to come on to the public lands and stake their claim and take the minerals out. They don’t have to pay any money to the federal government to do it. No royalties, no acquisition fees or anything like that.

And so, there has long been a debate about reforming that law and providing some return to the public for the resources that are taken off of our public lands. But ironically, and I think very unfortunately, this proposed bill would have I think made things much worse. It would have essentially allowed a mining company to go onto public land and if they found minerals even if they didn’t know if they were valuable, they could just start digging. Now they have to get some permit before they can do major surface disturbing activities but they don’t have to show any ability to even make money on the mine. They just decide they want to go in and dig up the minerals and pour their waste on public lands, they can do it. And you basically have free range to do it under this proposed legislation.

I don’t think that legislation is going anywhere but it was a big concern. And so, I was testifying against the legislation for the I guess democratic side of the debate. I was also testifying about a separate bill called the Transparency and Accountability Energy Act, the TAP American Energy Act is what they called it. And that law would have done similar things with oil and gas development. It would have opened up more public lands to oil and gas development essentially would have required the federal government to lease large parcels of public land and make them available to oil and gas companies to develop.

And here, it was a little bit of a different issue and I thought equally problematic in some ways because we’re in this situation right now with oil and gas where yes, the price has been relatively high over the past couple years. We had the sort of slow down and oil and gas development because of COVID. And then the jump back up that has caused prices to go up. But most of the major oil and gas companies that are looking at this issue I think have recognized that the long-term outlook for oil and gas is not good.

If you think about the fact that we are right now in a transition away from internal combustion engines in our transportation and moving toward electrification, I think in 10 years, most of us will be driving electric cars and that should depress oil prices pretty significantly. And similarly, we’re seeing this movement, pretty strong movement I would say toward renewable energy, wind and solar geothermal, these kinds of things that will basically reduce our demand for coal power and natural gas power for generating our electricity.

And so, these likely events that are going to happen I think are going to depress prices, certainly depressed demand, and that should lead to downward pressure on prices for both oil and gas. Oil and gas companies understand this. They’re looking at what’s going on and so, they’ve actually not shown a great deal of interest in producing more oil and gas on public lands or really anywhere else. And so, I think it is wrong for us to be sort of focused on trying to push these resources on a reluctant industry. It doesn’t make a whole lot of sense and it certainly doesn’t help our ability to address the serious problem of climate change.

J. Craig Williams: Right. And there seems to be a big push toward minerals given the need for or batteries and the lack of say lithium and other types of minerals that are used to form those batteries.

Mark Squillace: That’s a great point, Craig. I mean I agree that we probably are going to need some more minerals and I think domestic production may have to increase. But again, I think that the way that the proposed bill would have worked, it doesn’t — I don’t think it would have addressed the problem in the way that I think some congressmen would have liked. So if you think about the problem of minerals, we need a lot more copper. I mean, a lot more lithium as you said. Nickel, cobalt, these kinds of minerals that we’re using to produce our batteries.

They are important and we’re going to need to get them but there are great opportunities that have largely been unexplored in this country for recycling these minerals from used batteries and other used equipment. You think about all the electronic and electrical waste that we have in this country, the things we throw out that have these metals embedded in them and I think we ought to be starting there.

(00:10:02)

We ought to be looking at our ability to take these metals back and recycle them and use them for other kinds of purposes.

There was a study done about a year ago by University in Australia that estimated that we could supply about 55% of our copper needs just through recycling of batteries and you could generate fairly significant amounts of recycling in terms of lithium, nickel and cobalt as well by recycling batteries. And then if we take all of the other electronic and electrical equipment that has some of these minerals embedded in it, I think you could really make a big dent in the demand that we have. I think that we probably will need some additional mineral development. I’m not suggesting we don’t need any new mines. But if we’re going to have new mines, I’d like to think we’re going to be smart about where we locate those mines and the kinds of methods that we use to develop the mines.

And so, for example, there are proposals right now. There’s a proposal to build a major new lithium mine in Nevada. It will be a conventional mine. It will produce a lot of waste. It will use a lot of chemicals to process the minerals. It will require a large waste pile that will be on public lands permanently and maybe we need to do that but we’re also looking at a proposal to develop lithium out of the Salton Sea and some other similar deposits that could be developed in a much more environmentally friendly way. These brine deposits basically would allow the developer to pump the brine out of the bottom of the sea, actually use geothermal energy to produce the power that they need to do the operation and they would basically be able to take the brine out and extract the lithium and then put the brine back in.

So you don’t really have much surface disturbance at all. You’re not depleting the water supplies as you might do with some other kinds of methods. And so, this is an important alternative that we might want to look at. I know we’re going to get to talking about the National Environmental Policy Act in a bit but one of the key things about NEPA is the obligation on the part of the government decision maker to look at the alternatives to a proposed action.

So somebody proposes a big lithium mine in Nevada, it’s important for the agency to ask, “What about this alternative way of producing the lithium. Should we really be sacrificing a major chunk of our public lands to conventional mining when we can get the lithium out from a much more environmentally friendly kind of resource?” The amount of deposits there, the lithium in the Salton Sea are vast enough to supply about 20, I think it’s about 25% of the global needs for lithium. And that’s for I think through 2040 so it’s a substantial deposit.

And so those are the kinds of things I think that we ought to be looking at and unfortunately, I think the proposed legislation doesn’t take those things into account.

J. Craig Williams: Right. Well, before we dive into NEPA, let’s take a quick break to hear a word from our sponsors. We’ll be right back.

Male 1: While it might not have been covered at law school, the smart lawyer knows that domain names are valuable assets to a client’s business when launching a new product or protecting their brand. GoDaddy’s domain broker service can help you and your client acquire that perfect domain even if somebody else already owns it. Be the business advisor your clients need with GoDaddy’s expert brokers. Visit godaddy.com/dbs to learn more.

J. Craig Williams: As a lawyer, insurance is one of the last parts of your job you want to spend unbillable hours on. That’s why thousands of lawyers have switched to Embroker. Embroker offers A+ rated insurance for law firms. You can quote and buy instantly online. And if you need help, they have experts on standby. Go from sign up to purchase in 15 minutes by visiting embroker.com/law. That’s E-M-B-R-O-K-E-R.com/law.

J. Craig Williams: And welcome back to Lawyer 2 Lawyer on the Legal Talk Network. I’m joined by Professor Mark Squillace. He is the Professor of Law from the University of Colorado Law School.

We started to talk before the break about NEPA, the National Environmental Protection Act, and before we dive into it too far Mark, can you give us a little bit of background on origin about NEPA?

Mark Squillace: Sure. So the National Environmental Policy Act was signed into law on January 1, 1970 by Richard Nixon. It’s really an important law in so many ways. I mean, it is the law that basically requires that you look at what the consequences are of what you’re proposing to do before you do it, a kind of a look before you leap statute. And it was quite innovative at the time. The idea that when a government agency gets a proposal for a permit or to do something that the government has to approve, they would have to basically look at whether or not the consequences of that proposed action were the kinds of things that the government thought should be allowed to go forward.

(00:15:02)

And one of the key features in my mind, perhaps the key feature of NEPA is the requirement that the agency consider all reasonable alternatives to the proposed action. It has been described by the Council on Environmental Quality which implements NEPA as the heart of the EIS. And it’s the heart of the EIS because it’s supposed to present the proposal and the alternatives in a comparative form so as to sharply define the issues for both the public and the decision maker so they can see what the consequences are, not just of the proposal, but also of the alternatives to that proposal. And in that way, the agency has a much better way to sort of analyze the proposal and consider whether it ought to prefer some different approach.

J. Craig Williams: And by EIS, you mean environmental impact statement?

Mark Squillace: Yes, thank you. That’s the environment impact sometimes. You know it’s a little bit of a complicated law in that respect because oftentimes, if the agency doesn’t have to do an environmental impact statement, it still would have to do an environmental assessment, almost a kind of mini EIS to consider the proposal and alternatives. And so, agencies generally have to follow NEPA for any significant decision that they might want to make.

J. Craig Williams: So can you distinguish like here in California, we have CEQO, the California Environmental Quality Act, which also has something similar like environmental impact report and an environmental assessment and then a negative declaration of they’re not thinking that anything is going to happen. But does each state have its own and how does NEPA fit into the whole scheme of things?

Mark Squillace: It’s a really good question, Craig. And the answer is no, not every state has it’s sometimes called a little NEPA. But California does, you’re right and there I think about 17 states and I think the District of Columbia that have these sort of little NEPA statutes that do very similar things. The problem or the limits of NEPA I suppose are that you have to have a federal agency action.

And so, if you do not have a federal agency action, there’s no requirement to comply with NEPA. And so, that’s why these state laws are important because particularly in California, a lot of government actions are taking place and if there’s no requirement to prepare an EIS at the federal level then the state would require an environmental impact report at the state level and it would be essentially the equivalent of an EIS. Note that in many cases, both laws would apply and the agencies typically would get together, the federal and state agencies, to just produce one document.

A really important point here though that your question brings up I think is the fact that NEPA is probably the most emulated law of any law that the United States has ever passed. I mean, there are many NEPA like requirements in virtually every country, at least every developed country around the world, and many of the major international agencies follow NEPA like processes as well. So it’s generally been recognized as a really important part of our environmental law today and indeed the international court of justice has recognized that environmental impact assessment is part of our core requirements of law. It has been accepted basically as law at the international level.

J. Craig Williams: That’s pretty amazing. Not something that I knew. Can you identify some success stories and some failures in NEPA? I mean has it been highly successful here in the United States?

Mark Squillace: I would say that it has been a pretty successful — success is really hard to measure. I’ve been involved in quite a few NEPA processes. I’ve commented on quite a number of NEPA documents. And what I see through the NEPA process is that agencies typically change the proposal to make it I think more environmentally friendly if you will. They rarely would decide not to go forward with the proposal but you do see significant changes and sometimes you see the agency backing away and saying we’re not going to go forward with this proposal because the consequences are just too severe.

So there are I think examples of that. There are also failures I think from NEPA. There was a lawsuit that was filed over a proposal to build the Teton Dam in Idaho and the dam, there was a lawsuit trying to stop it on NEPA grounds. They said that EIS was inadequate. Shortly after the dam was built, it failed and it destroyed a huge part of the area below the dam. It was a huge failure. And again, this is the kind of thing that should have been caught through the NEPA process and maybe the litigation should have been successful but there are certainly examples like that where a NEPA didn’t succeed in assuring that the public would be safeguarded from any adverse consequences.

J. Craig Williams: Mark, we’re going to take another quick break to hear a word from our sponsors. We’ll be right back.

(00:20:00)

And welcome back to the Lawyer 2 Lawyer on the Legal Talk Network. I’m joined by Professor Mark Squillace. We’ve been talking about NEPA. Let’s talk about the practical aspect of this, and it’s interesting that we were talking about lithium and copper and a components of batteries before and the need to consider alternatives. I’m interested in your opinion about the need for balance mining in the same way that we had to balance oil and petroleum based upon the prevalence of electric vehicles coming into the picture. For batteries, it seems now that we have technology that’s being developed for hydrogen batteries and water batteries and sand batteries. So do we really need all of this mining?

Mark Squillace: Well, it’s a great question and it’s something I’m actually writing about right now. I’ve got an article that’s looking at the critical mineral needs that we have for basically the future of energy. The difficulty here is that even as we develop these batteries and other renewable resources and use the minerals that we currently need to produce them, the technologies are changing and we’re trying to move away for example from having to use cobalt in batteries. Cobalt is a problematic mineral in many respects. A lot of the cobalt is produced in the Democratic Republic of Congo. A lot of child labor problems and a lot of environmental problems there. People have been sort of wary by minerals from the DRC. And so, those kinds of issues come up all the time and it has I think led to companies thinking about, “Can we do this differently? Can we use different battery chemistries? Different technologies?” We’re on the cusp it seems of developing technologies that would allow what are called solid state batteries.

And right now, the battery technologies that we tend to use for things like electric vehicles have kind of a liquid or gel kind of metal that transmits the electrons between the anode and the cathode in the battery and that’s a problematic kind of medium in some ways because it gets hot, you have to make sure it doesn’t catch fire. You probably heard about fires from these batteries that can be a problem. But we’re on the cusp of finding ways to basically make that into a solid. It would no longer be a liquid or gel. It would be a solid. It would not pose any risk from catching on fire and it would be much more efficient. You could have a smaller battery and it appears that if once these batteries are developed, you could charge them very quickly. So some of the technologies are looking like they make it 500 miles to a single charge and that you would be able to recharge the battery maybe to 80% or more within 10 minutes.

So this is going to be a game-changer if we ever get to that point. It probably won’t require the kinds of minerals that we’re using now in some of these batteries. And so, there are some really positive things that are happening on the technology front but we’ve got to balance these things between the minerals that we need now to produce the electric vehicles, the windmills, the solar panels and all that we need to produce all this energy and then the technologies that are coming and hoping that we can move those technologies along in ways that will mean we need less mineral if you will, less minerals that are problematic certainly in producing these kinds of things.

So it’s a bit of a yin and yang here. We are really trying to balance these things and it’s probably going to be changing pretty radically over the next 10 years. It’s going to be very testing to watch how these technologies evolve and what their real needs are in terms of our mineral requirements.

J. Craig Williams: Now, when we talk about mining, we also have to talk about things like wetlands and habitat. How do those land uses play into the need to develop these resources that we have for our country and for our own survival?

Mark Squillace: Yeah, it’s a really good question, Craig. I’m actually going to be going down to Albuquerque in a couple of weeks to talk about landscape level planning. So one of the ways that we want to think about these kinds of problems with habitats and also with industrial kinds of developments in quarters is to do better planning. And we probably have to be thinking much more carefully about planning at the landscape level or at really large-scale areas. We can’t just look at a boxy sort of area that might be useful for some planning purposes for a government agency. We actually have to look at the whole wildlife corridor that might be used by different kinds of animals. There may be multiple quarters in an area.

We want to also look at how we get the power to the places that we need. So we need industrial corridors, rights of way for power lines, maybe gas lines, whatever kinds of industrial infrastructure we need and that we need to be thinking about how we can produce those rights of way.

(00:24:59)

We can develop those rights of way for industrial purposes so that we don’t adversely affect wildlife habitats and other kinds of important public resources like wetlands when we’re doing this. And it really only, if you’re doing this at a landscape scale, are you going to be able to sort of see at least somewhat clearly where the problem areas are, where the opportunities are if you will. And I think if we can get to the point of doing this better planning that we will find ways to both develop the resources that we need and get them to the places where they need to go while at the same time protecting our environment.

J. Craig Williams: So how do you think that the false borders that we’ve erected as a country both in Canada and Mexico and states and so forth, how is that going to play into landscape planning because they don’t respect our borders?

Mark Squillace: No, it’s such a good question Craig. So John Wesley Powell, the great explorer who explored the Colorado River, he was also a really smart man who thought about this a lot and thought that we should design our states around watersheds. That would have been much smarter. There’s even a map that you can get that shows the John Wesley Powell approach to sort of laying out the different states that we ought to be having. And it would have been a good thing if we had done something like that it would have made me a lot more sense.

Instead we’ve got, particularly here in the West, we’ve got these boxy states that don’t make any sense from a resource development kind of perspective. It seems a little bit crazy to be having these states designed in the way they are. And even beyond the states, if you look at the forest service and the BLM, the two big federal land management agencies, they plan it what they call the unit level and these units are also kind of boxy. They’re not really thought out in the way that you would want to think out a landscape that you’re trying to protect in sort of a broad area.

So unfortunately, we’re kind of stuck with these legacy sorts of boundaries that basically we have to deal with. We can’t ignore the states. We can’t ignore the historic boundaries that the agencies have been using to do their planning. But I’ve been suggesting that we give a lot less emphasis to these boxy type plans and we think much more about landscape level planning. And even if it means crossing state boundaries, even if it means crossing public lands with private lands, state lands, even if it means if you were crossing international boundaries, we can’t always control what happens on private lands or what happens on state lands or the lands in other countries.

But we can still think about the opportunities that we have and we can communicate with the people who could hopefully bring about the kinds of solutions that I think to some at least seem more obvious once you engage in this kind of planning, once you start looking at a map and looking at the resources that exist in this broad area. You can kind of figure out where the appropriate places are to put development and where the appropriate places are to leave more or less untouched in order to protect the important resources that we have.

J. Craig Williams: You know, it’s an amazing observation to make that we should be organized based on watersheds and natural resources rather than the political boundaries. And that’s probably one of the best suggestions I’ve ever heard for landscape planning and for developing the natural resources that we have. That’s a fantastic idea. Well, Mark, it looks like we’ve just about reached the end of our program so I’d like to take this opportunity to invite you to share your final thoughts as we wrap up as well as your contact information if you would like so that our listeners can reach out to you.

Mark Squillace: Yes. So thanks so much Craig. Yes, I’d love to hear from folks. I can be reached at the University of Colorado Law School. My email address is [email protected]. But if you go to the Colorado Law School website, it’s pretty easy to find me on a faculty link.

Just a couple of closing thoughts again to make about this sort of issue that we’ve been talking about and about how we can think about better protecting our environment and conserving the resources that we have. I’m actually somewhat optimistic that we can do this. It’s hard. I mean, we are dealing with this existential crisis of climate change. Here in the Western United States, we’re also dealing with this just really seemingly intractable problem with water resources along the Colorado River. Even with all the big storms that we’ve had this year particularly in California but even here in Colorado and throughout the Intermountain West, it’s not really making a dent in the water supplies for the Colorado River. At least not yet and it’s looking pretty dire.

So there are some real worrying signs about where we’re going but there are also some really good people who are committed to trying to find solutions and there is a glimmer of hope that we’re going to get there.

(00:30:03)

We’re going to find those solutions. I guess I would say we kind of have to. And so, just one sort of last closing thought is we’re going to be focusing on the crisis on the Colorado River this summer here at the University of Colorado. We’re putting on a conference on June 8 and 9 that we’ll be looking at those issues. We’re going to bring in the Bureau of Reclamation Commissioner and the lead negotiators in the seven basis states and we’re hoping to talk about solving the problem. And it’s going to be hard and they’re going to be some uncomfortable conversations I think but we’re at a point right now where we have to have those difficult conversations. And I think if we do that and if we are thinking clearly and we’re willing to sort of compromise and come together, I think we can fix these problems.

J. Craig Williams: Well, I hope we can because here in California, if we could, we’d probably send Mulholland to that conference.

Mark Squillace: Yes, you would. Yeah, he was a long time ago I’m afraid. I’m not sure he’s the guy we would want to solve the problems.

J. Craig Williams: No, he’s a cause of a lot of those problems as a matter of fact.

Mark Squillace: Yes, he was.

J. Craig Williams: Well, Mark, it has been a pleasure having you on the show today. Thank you very much.

Mark Squillace: Okay, thanks so much Craig.

J. Craig Williams: So we’ve had some pretty amazing observations today and one of them that’s just kind of blew my mind was the fact that we should really be planning on a natural resources level and watershed level rather than on orders that we have artificially created. And anyone who’s done biological or land use or environmental law will see that as a wonderful resolution to the way that we’ve been thinking about planning for our environment.

Here in California, when we lost our celebrity mountain lion P-22, we’ve now started to erect habitat corridors over the top of freeways so the animals can follow their natural paths that we’ve disrupted as humans over time. In the desert area here, we have a five-mile long fence at the edge of the bighorn sheep habitat that prevents them from coming down and being killed on Highway 111 in Palm Desert in Palm Springs and Rancho Mirage and those areas. So, we’ve done an awful lot to interfere with wildlife and we’ve done an awful lot to disrupt our environment and it’s time we start thinking like the professor suggests.

So if you like what you heard today, please rate us on Apple Podcast or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams, thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

[Music]

Outro: Thanks for listening to Lawyer 2 Lawyer produced by the broadcast professionals at Legal Talk Network. Subscribe to the RSS feed on legaltalknetwork.com or in ITunes.

Continue Reading