Mostly news I report is bad but this month I will start with two, very good news items. The first one is in the case Great Northwest v Army Corps of Engineers. Judge Beistline ruled that various “wet areas” in Fairbanks separated from navigable waters (the Tanana River) by a flood control levy and a berm are not “waters of the U.S.” and are therefore not subject to Corps of Engineers section 404 permitting. Therefore, Great Northwest’s Motion for Summary Judgment was granted and the Army Corps of Engineers’ Motion for Summary Judgment was denied. Pacific Legal Foundation argued that by the Corps' own regulations, "wetlands adjacent to other wetlands" are categorically exempt from jurisdiction because they lack the requisite nexus to navigable waters. The court agreed. Congratulations Great Northwest and PLF, and Travis/Peterson Consulting which was integral in the case.

The second item of good news is that the Mat-Su Borough Assembly approved an extension of the land lease with Usibelli for an access road into the Wishbone Hill project area. The vote was 6-1. I recall in 1988-89 when I was maintenance superintendent at the Valdez Creek Mine (located north of the Denali Highway half way between Cantwell and Paxson) I would often be asked by my mechanics if I thought a new mine would ever get started at Wishbone Hill. Many at the mine dreamed of the day they could have a job close to home so they could go home to their families at night and attend baseball games, hockey games, church functions, etc. Depending on the continued project evaluation by Usibelli they may have such a job opportunity.

Returning to bad news, Senator Murkowski’s SJRes-26, Opposing EPA Regulation of Greenhouse Gases – was defeated on a vote of 47 to 53. All Republicans and 7 Democrats voted for SJRes-26. It was a great disappointment that Senator Begich was one of the 53 that voted against this “Resolution of Disapproval” that would have prevented EPA from using the Clean Air Act to write regulations for carbon dioxide. A few days before the vote a New York Times article quoted the White House, “The White House agrees with supporters of the resolution that comprehensive legislation on energy and climate change is preferable to a bureaucratic mandate. But it wants to keep the authority in place in case Congress fails to act and as a precedent for future rule-making on environmental matters.” My emphasis. Exactly what other rule-making the EPA has in mind we do not know.

EPA continues its juggernaut to increase its control of every possible aspect of air and water regulation. A major thrust of their activity is focused on coal mining and Appalachia in particular. One new initiative they have published is titled “The Effects of Mountaintop Mines and Valley Fills on Aquatic Ecosystems of the Central Appalachian Coalfields and a Field-Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams.” EPA uses conductivity as the sole measure of stream impairment. However, there is no evidence that conductivity is a problem and it has not been mentioned previously. The Federation for American Coal, Energy and Security (FACES of Coal) has published a very informative video clip on conductivity at www.facesofcoal.org/facts/conductivity/ that analyzes this issue.

At the same time “studies” purported to be “scientific” have been published by Dr. Michael Hendryx and others contending that increased mortality in Appalachian communities was due to high rates of coal production in the area. However, an analysis commissioned by National Mining Association found “factual discrepancies and methodological flaws” in the studies. The analysis was completed by Jonathan Borak, M.D., clinical professor epidemiology and medicine at Yale University, and Catherine Salipante Zaidel, MEM. In their review of eight peer-reviewed journal articles authored by Dr. Hendryx, et al, Borak and Zaidel, noted the complete omission of obesity, diabetes and alcohol consumption from the Hendryx analyses as important covariates that could influence health and mortality rates. 

EPA published a final Tailoring Rule for Prevention of Significant Deterioration (PSD) and Title V Greenhouse Gas (GHG). The Tailoring Rule is a suite of GHG regulatory actions that subject sources of GHG emissions to Clean Air Act requirements. The agency published an endangerment finding (the subject of SJRes-26) on Dec. 15, 2009, concluding that carbon dioxide (CO₂) and other GHG emissions endanger the public health and welfare by causing and contributing to climate change. The Tailoring Rule adds changes over time: Jan-July 2010 - applies only to sources currently subject to PSD or Title V will be subject to the new rule; For two years beginning July 1, 2011 – will apply to new construction with at least 75K tpy of emissions (this is the first time sources will be subject to PSD and Title V solely due to GHG); New rulemaking is to be complete by July 1, 2012 on whether include sources of less than 75K tpy and begin a 5-year study small sources.

EPA has also finalized a new regulation that will impact most small plane owners. They plan to eliminate the use of 100LL aviation gas. No viable alternative exists for most small aircraft engines. Low lead car gas is 91 octane and cannot be used in many if not most engines. We are working with the Alaska Delegation to see what can be done about this problem created by EPA.

A new item is mercury from gold production. EPA has published draft regulations to cut mercury emissions from gold ore processing and production facilities. No one questions the dangers of mercury but the proposed regulations are so broad that they will likely force many mines into different air quality categories resulting in huge additional costs, even mines that have very minor amounts of mercury.

EPA has just published its draft FY 2011-2015 strategic plan which is open for public comment. This plan is meant to advance Administrator Lisa Jackson’s seven priorities - taking action on climate change, improving air quality, protecting America’s waters, cleaning up communities, assuring the safety of chemicals, expanding the conversation on environmentalism and working for environmental justice, and building strong state and tribal partnerships. It all sounds fine but look out for the details.

In what appears to be a “friendly” lawsuit, EPA has been sued by Sierra Club, WildEarth Guardians, Environmental Integrity Project, and Center for Biological Diversity to force it to regulate methane discharges from coal mines. EPA says methane is the second-most common greenhouse gas and methane and several other pollutants are released when coal is mined, processed, transported, and stored.  According to a 1999 EPA report, more than 10% of methane emissions come from coal mines and methane is at least 20 times more effective at trapping heat than carbon dioxide. However, the basic questions are not being addressed - whether the temperature changes (climate change) we have seen are outside the expected variability and secondly, whether greenhouse gases are a problem.

Another attack on Appalachian coal mining has come from the Corps of Engineers which has now eliminated use of Nationwide Permit 21. Under section 404 of the Clean Water Act, NWP 21 permits are used to authorize "minor activities that are usually not controversial" and that would have only "minimal cumulative adverse effects on the environment." The Corps will now require all coal mines to use the individual permit process, with all its attendant opportunities for legal challenge.

On an even broader scale, the Council on Environmental Quality (CEQ) is preparing to issue NEPA Mitigation and Monitoring guidance and has issued NEPA Draft Guidance on “Consideration of the Effects of Climate Change and Greenhouse Gas Emissions”. We argued that “Assessing climate change impacts of individual projects using the National Environmental Policy Act (NEPA) will be detrimental to the economic recovery of the United States and will result in insignificant impact on global climate change. Using NEPA as a climate change mitigation rule would result in costly delays, fewer jobs, slower economic growth and minimal beneficial impact on climate change.”

EPA has published its analysis of S.1733, the American Power Act (Kerry-Lieberman), the most recent “climate change” legislation. They conclude this bill would have the identical impacts on coal as H.R.2454, the Waxman-Markey bill previously passed by the House of Representatives. The report suggests the use of electricity would rise significantly and the amount of coal mined would decrease significantly.

In a recent article on U.S. Energy Policy, Dan Kish, senior vice president for policy at the Institute for Energy Research (IER), an energy industry think tank, contends that US energy policy has been nothing less than “death by a thousand cuts” for US domestic energy production. Kish, who worked on Capitol Hill for 25 years in both the House and Senate natural resources committees, charges that federal policymakers have consistently fired regulatory bullets into US energy interests, then reloaded and fired again, year after year. “You always hear members of Congress complaining about our failed energy policy, and they’re right,” he said. “Of this nation’s offshore territory, 97% of it is not leased, and 94% of federal onshore lands remain unleased” for energy development. The federal government owns about one-third of all US territory, he noted, with much of that in the resource-rich US West, and almost all of it closed to development. “If you take the US offshore OCS areas plus the federally owned onshore lands and combined them, that territory is larger than all of the US dry land mass, including Alaska,” Kish said. “If it were a country by itself, if would be the third largest in the world behind Russia and Canada.” ISIC News, 6/17/10.

Along this line, the U.S. Fish & Wildlife Service is working on the ANWR Comprehensive Conservation Plan. Our comment letter urged that the 1002 area be opened to development immediately, that no new wilderness designations be recommended, that the entire planning area be evaluated for its mineral potential, and that areas containing strategic minerals and resources be recommended for removal of existing “Wilderness” designation or other restrictions to development.

The Department of Interior review process for items to be published in the federal register is now taking several months for even simple notices. In response to this, Congressman Young and Senators Murkowski and Begich sent a letter to DOI Assistant Secretary for Land and Minerals Development Wilma Lewis condemning this policy that is adding further delays to the permit review process. BLM Instruction Memorandum No. 2010-043 requires that all non-exempt Federal Register notices be sent to the BLM Washington Office for additional review prior to publication. The letter said the policy was "fraught with redundancy and unnecessary bureaucratic delays" by requiring 14 reviews at separate department offices each time a notice is required. The delegation noted that one international consulting group has already rated the slow U.S. permit review process on par with Papua New Guinea and urged the department to return to "common sense policy." This is adding several months, in some cases 5 or more months, to publish a simple notice.

On the state level the biggest event has been approving or vetoing bills passed by the Legislature. One veto that was needed did not occur. That was for a $750,000 appropriation to evaluate the state permitting system as it will apply to the Pebble project. Industry sees this clearly as one more attempt to harass Pebble. It sets a very bad precedence. Does this open the door for a “study” any time some legislator opposes a project?

Elsewhere in the Capitol Budget, funds were included to begin construction of the railroad connection between Point Mackenzie (across Knik Arm from Anchorage) and the mainline of the Alaska Railroad. Money was also included for more work on the Western Alaska Access and Ambler District Access studies.

In Nunamta Aulukestai v. DNR, where AMA and the Council of Alaska Producers are interveners, a hearing was held on the State’s motion for summary judgment to throw out the case and on the rules for discovery. Judge Aarseth did not rule on either issue but indicated he would rule by the end of June.

Lastly, we are now told that the proponents of the so-called “Anti-Corruption Initiative” have given up on that ballot initiative, even though it will be on the Primary Ballot. This initiative would not allow any person or organization to “lobby” in any way if that person or organization received any money from the state. That means a company that has a contract with the state, and by extension its employees, could not lobby the legislature or administration on any matter. That means a municipality could not lobby its representatives. That means if the state pays the registration fee for a state employee taking short course at our annual convention, AMA could not lobby. The Alaska Municipal League has appropriately called this initiative a “Gag Law”. So we also end this Update with good news.