by Robin Bravender and Phil Taylor, E&E reporters
— This story was originally published December 22, 2015, and is republished here with permissions. — Ed
Wyoming is challenging the Obama administration’s signature climate change rule on the grounds that it’ll hamper efforts to protect the greater sage grouse.
Attorneys representing the Cowboy State indicated last week that they’re planning to air their concerns about how U.S. EPA’s climate rules for power plants will impact sage grouse conservation as part of an ongoing lawsuit challenging the administration’s Clean Power Plan. Wyoming is one of more than two dozen states opposing the regulation in a federal appeals court.
In the statement of issues filed by Wyoming and 23 other states with the D.C. Circuit Court of Appeals on Friday, the states indicated that the sage grouse will be central to their case. Among the issues they said they plan to raise: “Whether EPA unlawfully failed to consider the impact of the rule throughout Wyoming on the greater sage grouse and other sensitive species.”
Wyoming officials have long been staunch critics of the administration’s Clean Power Plan, and they’re challenging the regulation on multiple fronts.
In addition to fighting the rule in court, top officials yesterday sent a petition to EPA Administrator Gina McCarthy asking her to scrap the rule and start over.
“This rulemaking has been flawed from the very beginning,” Wyoming Gov. Matt Mead (R) said in a statement. “The final rule is the result of an unfair process — it has both procedural and substantive deficiencies.”
Mead said he directed state Attorney General Peter Michael, who is an appointee of the governor rather than an independently elected official, “to use every tool in the legal toolbox to stop this arbitrary and extremely harmful rule,” including sending the petition to McCarthy.
Concerns about sage grouse conservation were listed as one of their top arguments against the rule in that petition.
“The EPA refused to consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service before issuing the final rule,” Michael wrote. “The final rule requires significant development of new renewable generation. It is no secret where new renewable generation can be located in any given state. For example, in Wyoming, significant amounts of wind and solar resources are unlikely to be developed because they are located in core sage grouse habitat, which also supports threatened and endangered species such as the Piping Plover and the Preble’s Meadow Jumping Mouse.”
Michael added, “The rule should be reopened so that the rule’s effects on the nation’s threatened and endangered species can be fairly considered.”
Wyoming officials have been warning about conflicts between sage grouse conservation and the Clean Power Plan’s directives since EPA issued its draft rule in 2014.
In comments submitted to McCarthy last December, Wyoming’s Department of Environmental Quality Director Todd Parfitt warned that the state was getting “conflicting messages” from the Fish and Wildlife Service and EPA.
“FWS is telling Wyoming not to disturb large areas of land in order to guard against habitat fragmentation,” he said. “EPA is telling Wyoming to develop as much wind energy as possible. Wind energy facilities are very large and disturb greater land areas than EGUs [electricity generating units], which have much smaller footprints. These two federal agencies are giving Wyoming directives that are directly at odds with each other.”
Wyoming seen as a model
Nationally, the final Clean Power Plan is expected to reduce carbon dioxide emissions from power plants 32 percent below 2005 levels by 2030. The rule also established a target emissions rate for each state.
The greater sage grouse lives in the state’s sagebrush steppe, and Wyoming has “devoted significant resources toward developing a conservation plan for this species,” Parfitt told EPA last year, with protection of its core habitat areas being one of the important safeguards.
The Obama administration in September found that the greater sage grouse — the largest native grouse species in North America, which has been central to disputes between conservationists and energy developers — was not in need of Endangered Species Act protections due to conservation efforts that stemmed its decline.
“The level of wind infrastructure development imagined by the Proposed Rule would negatively impact significant portions of the Greater Sage-Grouse’s core habitat. This oversight is not limited to the Greater Sage-Grouse; EPA has also failed to consider the environmental impact to other species such as bald eagles and bats,” Parfitt wrote, adding that EPA had failed to properly consider those impacts in the draft rule.
Parfitt also testified before the Senate Environment and Public Works Committee in March, where he told lawmakers that the agency had improperly assessed the amount of land available for renewable energy development because it failed to take designated critical habitats for the greater sage grouse and other species into account. “Only 16.5 percent of the total land area EPA identified for wind energy development is actually available,” Parfitt told the committee.
That’s due in large part to Wyoming’s “core area” strategy to protect important sage grouse breeding grounds from energy development and other threats, a policy established by former Gov. Dave Freudenthal (D) in 2008 and affirmed by Mead in 2011.
It places about 15 million acres off limits to wind farms, according to Brian Rutledge of the National Audubon Society. Much of those areas also happen to be the state’s windiest.
“Wind doesn’t belong in what we want to call core habitat,” he said.
FWS considers the Cowboy State a grouse “stronghold” because it is home to roughly 40 percent of the birds. FWS has extolled Wyoming’s sage grouse plan as a model for Western states, citing its regulatory rigor, and might have listed grouse as threatened under the Endangered Species Act without it. The Bureau of Land Management codified Wyoming’s strategy in its federal sage grouse conservation plans for Wyoming.
BLM in September imposed similarly strict sage grouse protections across 50 million acres of federal lands in the West to avoid a federal listing. Roughly 35 million acres were placed off limits to wind and solar development.
— Reporter Amanda Reilly contributed.
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