Dakota Access Pipeline Victory May Only Be Temporary

Dakota Access Pipeline
Oil Pipeline Construction (Wikipedia)

Protestors trying to stop construction of the Dakota Access Pipeline (DAPL) near the Standing Rock Indian Reservation in North Dakota were victorious on December 4, 2016, when the U.S. Army Corp of Engineers refused to permit the pipeline to carry dirty Canadian tar sands oil beneath Lake Oahe.  The U.S. State Department had previously approved the pipeline with a controversial determination that it wouldn’t substantially increase greenhouse gas emissions.

The protests against the DAPL began in April when members of the Standing Rock Sioux tribe established the Sacred Stone Camp to accommodate pipeline protestors near the mouth of the Cannonball River, where it empties into the lake. The primary objective of the protestors was to protect the lake from oil spills because it’s the source of the tribe’s water supply.

They used the slogan, “Water is Life.” But their protest soon grew into much more, and became a worldwide focal point for indigenous rights and climate change activists. Thousands of people joined the camp, including representatives from hundreds of tribes, making it the largest gathering of Native Americans in more than a century. About 2,000 veterans of the U.S. military also traveled to the camp intent on forming a human shield to protect the protestors from police attacks.

The National Environmental Policy Act (NEPA)

The Corp of Engineers explained they were denying a pipeline easement beneath the lake so they could conduct a full-blown environmental impact statement (EIS) in which alternative routes would be explored. An EIS is the most rigorous type of environmental study mandated by the National Environmental Policy Act (NEPA), which was signed into law by Republican President Richard Nixon in 1970. NEPA requires federal agencies to complete environmental studies of all their projects, using a public participation process that analyzes the environmental effects of various alternatives.

The Corp of Engineers has a say in whether a pipeline can be permitted beneath Lake Oahe because it has jurisdiction over public waterways and the lake is a reservoir on the Missouri River. The Corp had already completed an environmental assessment (EA) for the DAPL, a less rigorous type of NEPA study that’s typically used for projects with fewer significant issues. But the Environmental Protection Agency (EPA), the Department of the Interior, and the Advisory Council on Historic Preservation considered an EA to be inadequate for this project, and asked the Corp to complete an EIS.

The incoming Trump administration, however, will probably try to make the Corp reverse their decision to conduct an EIS, or even worse, work with the Republican-controlled Congress to revoke or eviscerate NEPA. This would have serious consequences on U.S. public lands administered under the multiple use doctrine by the Forest Service and Bureau of Land Management (BLM). The Forest Service, an agency within the U.S. Department of Agriculture, manages the nation’s 154 national forests and 20 national grasslands – comprising about 193 million acres. The BLM, an agency of the U.S. Department of the Interior, manages about 30 million acres, including 221 wilderness areas and 23 national monuments. NEPA is the primary mechanism by which Americans participate in the management of these lands because it requires federal land management agencies to conduct publicly reviewed environmental studies for their plans and projects. Without NEPA, the public would have little or no effective input on proposed mining operations, drilling operations, timber cuts, recreational activities, or livestock grazing schemes.

The scope of the potential danger is best illustrated by taking a closer look at the situation in regards to livestock grazing on public lands. The BLM administers more than 21,000 public lands grazing allotments, while the Forest Service has almost 6,000 grazing permittees. Public lands grazing is, by far, the most ubiquitous use of U.S. public lands, occurring on more than 200 million acres, mostly in the West. Subsequently, it’s also the commercial activity that inflicts the most widespread ecological damage on public lands. Even with NEPA, the public typically gets to review and comment on a grazing operation just once every 10 years – the term of a federal grazing permit. Without NEPA, even that modest opportunity would be gone.

But death of NEPA as we know it would do more than threaten the ecological health of hundreds of millions of acres of public lands. As mentioned above, a NEPA study must also be conducted when a proposed project might adversely affect a public waterway, even when the project is located on private land.

These are just some of the examples of the importance of the National Environmental Policy Act. It’s often been referred to as the environmental Magna Carta because its stated purpose is to “encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation.” If the Trump administration and the Republican Congress are allowed to neutralize NEPA, the U.S. will have crossed over an ideological threshold to a dark domain where the only thing that really matters is money.

Update

In January of 2017 newly elected President Donald Trump issued an executive order to make the U.S. Army Corp of Engineers reverse their decision under the Obama administration to complete a full-blown environmental impact statement (EIS) of alternative routes for the DAPL, and then had them issue a permit to allow the pipeline to be drilled beneath Lake Oahe.

On June 14, 2017, federal judge James Boasberg ruled that the Corp of Engineers was, indeed, required to complete an EIS for the DAPL on the Standing Rock reservation. The pipeline, however, had already been built and the judge didn’t order it to be shut down while the EIS is completed.

Privatizing Public Lands is More Republican Kookery

Republicans have launched the biggest attack on America’s public lands since President Ronald Reagan gave political legitimacy to the Sagebrush Rebellion by appointing James Watt Secretary of the Interior in 1981. Earlier this year they passed nonbinding budget resolutions in the U.S. Senate and House that suggested privatizing public lands by giving them to the states.  And Republican legislatures in several Western states have passed measures promoting the distribution of federal lands to the states. This new assault is being supported by the American Lands Council, with support from the American Legislative Exchange Council (ALEC), a conservative think tank supported by the Koch brothers. ALEC recently released a disingenuous report which claims the states would be better environmental stewards of the Western public lands managed by the Bureau of Land Management (BLM) and the Forest Service, while simultaneously increasing their economic production.

western public lands by state
Wikipedia
Smokey Bear Was Wrong

The growing frequency of catastrophic wildfires on Western public lands is the cornerstone of Republican claims that the states would be better environmental stewards. This isn’t a fair criticism of federal land management, however, because American forestry suffered from bad science until relatively recently. Ecologists now understand that many ecosystems are fire-adapted, and depend upon periodic low-intensity wildfires to maintain their health.

But for many years land managers used Smokey Bear to promote the idea that all forest fires were bad. The resultant suppression of natural fire regimes is the primary reason that many forests on public lands are now unnaturally dense with trees, making them more susceptible to catastrophic fires. Higher summer temperatures and lower humidities from climate change are also contributing to the situation.

The most prevalent activity on Western public lands, however, is livestock grazing. The ALEC report claims there’s “ample evidence” that the states would be “superior” environmental stewards of public lands. But the Western states have very poor reputations when it comes to managing grazing on their state lands.

The Arizona State Land Department, for instance, manages approximately 9.2 million acres of State Trust lands and the vast majority of it is leased to ranchers for livestock grazing. The department does little to implement livestock management plans and the state’s grazing lands are widely considered to be in poorer shape than local grazing allotments administered by the BLM and Forest Service. In fact, the department has such a bad reputation in regards to livestock management that in the 1980s it willingly participated in land exchanges which traded hundreds of thousands of acres of environmentally sensitive state lands to the BLM because everyone understood that federal agency would do a better job of protecting them. (And they have.)

The other claim that proponents of privatizing public lands make is that economic production could be increased on them if they were given to the states. This argument begins with a complaint that it isn’t fair for the federal government to own so much land in the West. They point to the fact that public lands comprise more than half of the land in three Western states, and at least a fifth of it in all of them, and this supposedly hurts the local rural economies.

According to ALEC, “The federal government’s control over so much land in the western states is inconsistent with America’s longstanding doctrine of the inherent equality of all states. This important principle is violated by allowing the eastern states jurisdiction over the vast majority of their lands but denying the same to the western states.” But the reason so much land in the Western states is still owned by the federal government is that nobody wanted it because it was too mountainous and/or dry.

The pattern of federal land ownership during the westward expansion from the original 13 colonies was set by the passage of the  Land Ordinance of 1785 and the Northwest Ordinance of 1787. After the claims of local Native American tribes were extinguished, the government surveyed the land and sold it, except for some parcels that were given to the states to support public schools.

Special natural places on federal land began to be set aside when the Yellowstone Act of 1872 created Yellowstone National Park, the world’s first national park. The Forest Reserve Act of 1891 allowed federal land to be set aside to establish national forest reserves to preserve important watersheds by requiring controlled timber cutting. In 1905 the Forest Service was created to manage these lands, now called National Forests.

Those federal lands that weren’t set aside for the common good were still available to settlers. The Homestead Act of 1862 gave people the opportunity to obtain ownership of a parcel of federal land without having to buy it. All they had to do was live on the land and prove they had farmed it for five years. Despite these generous terms, only about 40 percent of the applicants succeeded in getting a land title because, by 1862, most of the unsettled lands were in the arid West and not suited for agriculture.

In 1946 the BLM was created to manage most of the land that hadn’t been set aside and was still owned by the federal government. President Herbert Hoover had proposed to deed these lands to the Western states in 1932, but they declined his offer, complaining that it would cost too much to manage them.

Commodity Producers Oppose the Multiple Use Doctrine

This new Republican assault against public lands is being fueled by the relatively recent success that conservationists have had in getting long-standing environmental laws applied on most federal lands. They include the Multiple-Use Sustained-Yield Act of 1960National Environmental Policy Act (NEPA) of 1970, Endangered Species Act of 1973, National Forest Management Act of 1976, and the Federal Land Policy and Management Act (FLPMA) of 1976. These laws changed the management of public lands by making commodity production just another use, instead of the dominant use that it was for many years. They defined a new multiple use doctrine, wherein all activities shouldn’t be permitted on all public lands, and the objective of public lands management isn’t necessarily the maximization of commodity production – but to identify the appropriate mix of uses that are in the best interests of the general public. In other words, a fair and common sense strategy.

It’s taken many years of social activism and federal court cases filed by conservation groups to get things changed on the ground, and this struggle still continues in some localities. An example of the local political opposition these laws have faced is shown by the Clinton administration’s Rangeland Reform ’94 initiative to update public lands grazing regulations. The promulgation of these new rules took place many years after the laws they codified were passed by Congress.

Old school Westerners who were easily able to profit off public lands dislike the new ethical paradigm represented by the implementation of the multiple use doctrine. Ranchers holding federal grazing permits have been especially stubborn, as evidenced by the recent behavior of rancher Cliven Bundy in Nevada when the BLM attempted to enforce the law.

The Fossil Fuel Industry is Funding the Attack

This latest attack against public lands taps into this resentment, but its real impetus comes from deep-pocketed oil and natural gas producers. New hydraulic fracturing and horizontal drilling technologies have created a boom in fossil fuel exploration and production and the industry doesn’t like the federal environmental regulations that apply to their operations on public lands. Earlier this year, for example, Congressional Republicans introduced the Federal Lands Freedom Act, which proposes to give the states the power “to control the development and production of all forms of energy on all available Federal land.” Fossil fuel producers obviously think it would be easier for them to deal with state regulators, and they’re probably right about that. For instance, the primary reason Arizona Republican legislators supported the creation of the Arizona Department of Environmental Quality (ADEQ) in 1986 was to allow the state to try and take over the enforcement of national environmental laws from the federal Environmental Protection Agency (EPA), with the tacit understanding that state enforcement would be more lenient.

Public Lands Are a Treasure, Not a Burden

The argument that federal lands, as they are currently managed, are burden upon rural economies in the West needs to be closely examined. An often heard claim is that local governments with lots of public lands within their boundaries cannot collect sufficient tax revenue because federal lands are exempt from private property taxes. But in 1976 Congress also created the Payments in Lieu of Taxes (PILT) program to provide payments to them to offset the lost tax revenue. Arizona, for example, received more than $30 million in PILT funds during the 2014 federal fiscal year.

A fair assessment of the economic production from public lands must take into account everything they produce. According to the Arizona Game and Fish Department, fishing in Arizona generates an estimated $831.5 million on equipment and trip-related expenditures annually, while hunters account for an additional $126.5 million in retail sales. Watchable wildlife activities, the agency says, generate another $1.5 billion. Together they generate more than $115 million in state tax revenue. The Outdoor Industry Association says that all forms of outdoor recreation in Arizona generate $10.6 billion in consumer spending annually. A very large portion of these activities occur on Arizona’s public lands.

Less tangible benefits from public lands must also be considered. One of the original reasons for the creation of National Forests, for instance, was to help protect municipal watersheds. This continues to be important in the arid West where many cities, such as Phoenix, rely upon upstream reservoirs for their water supplies.

Public lands also harbor reservoirs of biodiversity, and biodiversity is the foundation of the food chain that supports human life. Public lands will become increasingly important for preserving biodiversity because scientists say we have entered the Anthropocene Epoch in Earth’s history, wherein humans are having an unprecedented impact upon the planet. Climate change caused by the burning of fossil fuels, along with demands put upon natural resources by the growing human population, are combining to damage and destroy entire ecosystems. The millions of acres of undeveloped public lands in the West are the best hope for many American plant and animal species.

The Bottom Line

The existing multiple use doctrine allows for mining, logging, grazing, and drilling activities to occur on federal lands – but only where they are appropriate and only when they comply with environmental laws. This wise philosophy is the real target of the proponents of turning public lands over to the states. They want to go back to the not-so-distant bad old days, when commodity production monopolized public lands. They don’t have the support of the general public, as shown by the defeat of Proposition 120 in Arizona in 2012. This measure was placed on the ballot by the Republican-led legislature and called for the state to unilaterally declare it’s control over its federal public lands. It was soundly defeated, with 67.7% of the voters rejecting it. Privatizing public lands is just more right-wing Republican kookery.

Holistic Resource Management (HRM) Grazing Plans Don’t Work

bullshit
HRM Bullshit (Jeff Burgess)

If you’re concerned about the ecological damage caused by livestock grazing on our public lands you’ve probably encountered arguments that cattle can be used as a tool to improve the land. These claims are typically made by proponents of a livestock management system called holistic resource management (HRM), which is promoted by a fellow named Allan Savory.

Savory claims disturbances caused by livestock grazing are natural because vegetation co-evolved with herds of wild grazing animals. But that’s not true for the arid rangelands of the Intermountain West. Big herds of large grazing animals, such as bison, haven’t been found west of the Rockies since at least the end of the Pleistocene era, more than 10,000 years ago. While it usually takes longer than that for new plant species to evolve, it’s plenty of time for existing species to move to different areas. And that’s what happened in the West. The animals and plants which needed a wetter climate disappeared when it became too dry for them. Subsequently, the area’s dry ecosystems are not adapted to intense grazing from large ungulates.

Despite this, HRM proponents still claim that Savory’s grazing systems are a way to produce win-win solutions, wherein ranchers get to put more cattle on the land while, at the same time, wildlife habitat is improved by the cattle. The problem is that HRM isn’t based on science and there’s plenty of research which proves it doesn’t work. There’s not room here to review all the available research, but it’s so abundant that it’s easy for anyone to find it online.

Numerous HRM projects in Arizona, for example, have ended in failure:

  • Arizona’s Tonto National Forest published a study in 1991, wherein the implementation of HRM on Greenback Creek failed to improve this Sonoran Desert riparian area.
  • The Arizona Game and Fish Department’s Research Branch published a technical report by Richard L. Brown in September 1990 titled Effects of a Savory Grazing Method on Big Game. It concluded that, “There’s nothing within the overall results of this study to suggest suggest that a doubling, or near doubling, of original stocking rates is advisable under HRM.”
  • In 1994 the Arizona Bureau of Land Management’s state office spent thousands hosting an HRM seminar that proved to be of no use.
  • In the late 1990s the Environmental Protection Agency funded an HRM project intended to reduce nonpoint source water pollution on the Arizona Strip with a $28,000 Section 319 grant. This “Ungulate Action” demonstration project involved placing a herd of about 400 cattle in to a relatively small pasture of sagebrush. The EPA grant money was spent on feeding them while they were there. It was hoped the animals would trample the sagebrush to death, create seed beds for herbaceous vegetation with their hoof action, and increase the fertility of the soil with their manure. The idea was that this would result in more vegetative cover, and thus reduced erosion and nonpoint source pollution. It didn’t work.
HRM Livestock Management Uses Junk Science

HRM proponents like to avoid scientific discussions and instead offer personal opinions and anecdotes. For instance, they compare HRM’s intensive grazing schemes to situations where there was previously little or no grazing management, taking advantage of the fact that something is better than nothing – but avoiding a direct comparison with science-based livestock management.

They also hijack the debate by trying to focus it on irrelevant topics. Their argument that grazing can improve soil nutrients is a good example. There’s no evidence it improves the soil, and a lack of soil nutrients isn’t the primary limiting factor for vegetation in the arid West, it’s the lack of rain, and rain doesn’t follow the hoof.

They even go so far as to completely ignore science. They like to claim, for example, that cattle hoof action is good for the soil because it compacts it so that it doesn’t get washed away. There’s plenty of research, however, that shows soil compaction is a bad thing because it prevents rain from infiltrating the ground and thus increases runoff and erosion. At other times they claim that hoof action is good because it chops up the soil, which helps seeds to germinate. But pulverized soil also increases runoff and erosion.

HRM advocates also like to claim that high forage utilization rates are good because plants are stimulated to regrow when they’re grazed. Like most HRM nonsense, it sounds good but it’s not true in arid environments. It’s often been said, for example, that Arizona, like much of the arid West, is a land of perpetual drought, interrupted by an occasional wet year. The vegetation, along with the wildlife that depend upon it, have to survive the dry years so they can take advantage of the infrequent wet ones. This means livestock numbers must be modest enough to ensure conservative forage utilization rates. As one  Forest Service range conservationist pointed out to me, “What happens if it doesn’t rain?”

The HRM strategy of using livestock grazing to stimulate plant growth includes denigrating old plant growth by labeling it “decadent.” HRM advocates complain that dead plant material hinders new vegetative growth that cattle prefer to eat by blocking sunlight. But old plant growth adds to ground cover, which helps to prevent erosion, and also provides essential habitat, food and shelter for a variety of living things. And life-giving shade is found beneath old growth in the desert Southwest.

The lengths some HRM advocates will go to defend their junk science is shown by their claim that it helps to prevent wildfires. It’s true that heavily grazed areas are less likely to burn because there’s little vegetation. But they fail to acknowledge the fact that periodic, low intensity fires are natural ecosystem disturbances that help to maintain grasslands by controlling the spread of woody vegetation. Intense grazing, like the kind used in HRM grazing schemes, removes the herbaceous vegetation needed to carry these fires. As another Forest Service range con once told me, “HRM is very good at growing brush.”

Savory’s most outrageous claim, however, is that HRM grazing schemes can help fight climate change by capturing  atmospheric carbon. This nonsense prompted the Sierra Club to issue an official statement in 2013 to scientifically refute it

That’s the situation regarding the uplands. There’s no justification for allowing grazing in riparian areas whatsoever – using HRM or any other scheme.

Furthermore, even if these intensive HRM grazing schemes worked, they would be inappropriate for our public lands. That’s because they adversely affect wildlife habitat, watershed conditions, and recreational users – as they are solely focused on livestock forage production. This violates the multiple use doctrine under which the various uses of our public lands are supposed to be managed in a combination that best serves the public interest. Dedicating these lands to livestock production at the expense of all other uses violates this law. The overwhelming scientific proof that HRM schemes don’t work means that the Forest Service and Bureau of Land Management should not allow them to be implemented on the public lands grazing allotments they administer.

Unfortunately, however, there are still private land managers that are so desperate that they’re willing to try HRM anyway. One of these people, for example, is William Burnidge, director of the grazing management program for the Nature Conservancy. This well-known conservation organization claims to always “use the best available conservation science and a science-based rigor.” But their financial need to make money on the ranches they’ve purchased has led them to help ranchers implement HRM schemes on the grazing lands they manage. In other words, the Nature Conservancy is promoting junk science and calling it collaboration. Sad.

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