Coral Davenport

The plan, which administration officials expect to be finalized in January, is a major victory for a wealthy group of California farmers that had lobbied to weaken protections on the fish, the delta smelt. It also might intensify ethics questions about Interior Secretary David Bernhardt, who was the lobbyist for those farmers until just months before he joined the Trump administration.

Federal investigators are looking into whether Bernhardt’s efforts at the Interior Department to weaken protections for the fish violated “revolving-door” rules designed to prevent former lobbyists from helping past clients from within the government. Investigators also are looking into whether he improperly continued lobbying for those farmers even after he de-registered as a lobbyist just before joining the Trump administration.

The delta smelt, an unassuming, fingersize fish with little utility beyond its role as an environmental sentry, has been at the center of California’s water wars for nearly three decades. The “biological opinion” — released jointly Tuesday by the Interior Department and the Commerce Department — reverses scientific findings made a decade ago, which granted Endangered Species Act protections for certain types of West Coast salmon and the smelt.

Those protections ensured that the California rivers and bays in which the fish swim would get preference over irrigation systems in times of drought. Multiple scientific reports have concluded that diverting those waters could threaten water birds and killer whales, harm commercial fisheries and promote toxic algal blooms.

The new biological opinion concluded that those salmon and smelt would not be jeopardized by lifting the environmental protections and rerouting that water. Once finalized, the change propelled by the opinion would allow water to be diverted from fish to farms by the spring of 2020.

In a prepared statement, the Interior Department’s Fish and Wildlife Service wrote that the new findings followed “robust scientific review” and that the changes “will not jeopardize threatened or endangered species or adversely modify their critical habitat.”

“The new operations plan that has emerged includes more nimble and responsive water project operations that both protect endangered fish and allow the flexibility to quickly adapt to changing conditions — like the variable weather in California — to ensure effective and efficient water supply management,” the statement said.

Paul Souza, a deputy assistant director of the Fish and Wildlife Service, said on a telephone call with reporters that the interior secretary’s prior lobbying work did not influence the new decision. “There is absolutely no connection,” he said. “We are career professionals. We have led this effort with our teams over the past year, and this is career professional documentation.”

While the delta smelt serves no commercial purpose, decisions affecting its habitat extend directly to the interests competing for California’s water: farmers, fishermen and environmentalists.

“This is the most contested water problem in California,” said Jeffrey Mount, a water policy expert with the Public Policy Institute of California. “The fundamental water question is how much water you allocate to the environment and how much you allocate to farms. This tilts the balance to farms. And this was at the directive of the Trump administration.”

Environmental groups again accused the administration of favoring preferred constituents over science.

The conclusion “flies in the face of the best available science, which indicates that stronger protections are needed to prevent the extinction of our native fish and wildlife, like endangered winter-run chinook salmon and delta smelt, particularly in light of the effects of climate change,” said Doug Obegi, an expert in California water law with the Natural Resources Defense Council, an advocacy group.

It also brings both Bernhardt and his former lobbying client a big step closer to the outcome they have sought for years.

From 2011 to 2016, Bernhardt lobbied on behalf of California’s Westlands Water District, a state-chartered organization representing about 1,000 large farmers in an area of central California the size of Rhode Island. During those years, Westlands, which was his largest client, paid Bernhardt’s firm $1.3 million.

The group’s chief lobbying goal was to lift federal environmental protections to allow California’s fickle water supply to be used consistently to irrigate Central Valley almond, pistachio and cotton farms. As Westlands’ lawyer and lobbyist, Bernhardt pressed Congress for legislation to weaken Endangered Species Act protections on the delta smelt. He also joined a legal petition asking the Supreme Court to take up a case seeking to weaken those protections.

A New York Times investigation earlier this year revealed that four months after Bernhardt was confirmed as the deputy secretary of the Interior Department in August 2017, he telephoned the top Interior Department official charged with overseeing those protections and ordered him to begin the process of creating a new biological opinion document on the smelt.

In June, scientists working on that process produced a draft biological opinion that largely upheld existing findings: removing environmental protections for the smelt and rerouting the water would severely harm the surrounding ecosystem.

Tuesday’s new biological opinion rejects that draft and appears to be the culmination of Bernhardt’s efforts.

An Interior Department ethics lawyer, Edward McDonnell, did give Bernhardt verbal approval to get involved in the matter, but independent ethics specialists have said that, under the terms of the Trump administration’s ethics pledge, which Bernhardt signed, he should not have been given clearance to act. The pledge’s “revolving door’ provision requires former lobbyists to recuse themselves for two years from any particular matter or specific issue on which they lobbied in the two years before joining the administration.

The now-repudiated draft, obtained by The New York Times, concluded that lifting delta-smelt protections would jeopardize several types of salmon in the Sacramento River, an outcome that the salmon fishing industry has said could devastate the business. The decline of the salmon population would in turn threaten the Southern Resident killer whales, which live off the Pacific Coast.

That draft report was never publicly released, but the scientists working on it were reassigned and replaced, according to a report by The Los Angeles Times.

This article originally appeared in

Trump Administration Moves to Lift Protections for Fish and Divert Water to Farms

WASHINGTON — The Trump administration Tuesday moved to weaken protections for a threatened California fish, a change that would allow large amounts of water to be diverted from the San Francisco Bay Delta to irrigate arid farmland and could harm the region’s fragile ecosystem.

The move, which was widely expected, comes after years of prodding by successive Alaska governors and congressional delegations, which have pushed the federal government to exempt the Tongass, the nation’s largest national forest, from a Clinton-era policy known as the roadless rule, which banned logging and road construction in much of the national forest system. A final rule is not expected until next June.

On Tuesday, the U.S. Forest Service, which comes under the Department of Agriculture, took a step forward and put its weight behind a final decision that would be welcomed by most politicians in the state but dreaded by environmentalists.

The Forest Service announced that it had prepared a draft environmental study analyzing the effects of altering or lifting the roadless rule in the Tongass forest, which includes 165,000 acres of old-growth hemlock, cedar and spruce trees. The study, which will be published this week, analyzed six possible changes to the rule. One option would maintain restrictions in 80% of the area currently protected by the rule, another would open up about 2.3 million acres to logging and construction, and another would lift all roadless rule restrictions from the forest.

The Forest Service, backed by Agriculture Secretary Sonny Perdue, called the lifting of the entire roadless rule in Tongass the administration’s “preferred option.”

Supporters in Alaska said such a move would be an economic boon to their state, while conservationists lamented the possible destruction of vast areas of pristine old-growth forest.

“I’m very pleased the administration has listened to Alaskans and is proposing a full exemption from the roadless rule as its preferred alternative,” said Sen. Lisa Murkowski, R-Alaska and chairwoman of the Senate Energy and Natural Resources Committee. “I thank President Trump, Secretary Perdue, and the team at the Forest Service for their hard work to reach this point — and for their continued efforts to restore reasonable access to the Tongass National Forest.”

Randi Spivak, public lands director at the Center for Biological Diversity, said, “Alaska’s elected officials are selling out their constituents and robbing future generations by trying to strip protection from one of the most pristine old-growth forests in the world.”

She predicted the plan “would smother vital wild salmon streams with sediment and irreparably harm subsistence hunters.”

Once the study is published, members of the public will have until Dec. 17 to submit comments, which are meant to inform the Agriculture Department as Perdue moves toward a final decision, which is expected in June 2020.

Forest Service Backs an End to Limits on Roads in Alaska's Tongass Forest

WASHINGTON — The Trump administration on Tuesday took a step toward opening up the pristine woodlands of Alaska’s Tongass National Forest to logging and road construction, saying it would prefer an end to all road-building restrictions throughout the forest.

The draft plan, which was scheduled to be announced by the Environmental Protection Agency administrator, Andrew Wheeler, at a news conference in Green Bay, Wisconsin, would include some provisions designed to strengthen oversight of lead in drinking water. But according to people familiar with the plan, it does not include a pricey safety proposal advocated by public health groups and water utilities: the replacement of 6 million lead pipes that connect homes to main water pipes. The proposed new rule would also more than double the amount of time allotted to replace lead pipes in water systems that contain high levels of lead.

The EPA will promote the new regulations as a step forward in protecting water supplies. Although the new proposal will extend the timetable for replacing lead pipes, it will also include new requirements that all schools and day care centers be tested for lead, and, if elevated lead levels are found, customers would have to be told within 24 hours, not the current standard of 30 days. It will require water utilities to conduct inventories of their lead service pipes and publicly report their locations.

Environmental activists said those moves forward would not make up for the relaxation of standards in other areas.

The slower timetable for the replacement of lead pipes is a “huge weakening change that will swallow up the few small improvements in the proposal,” wrote Erik D. Olson, an expert in drinking water policy at the Natural Resources Defense Council, an advocacy group, in an email.

The new rule was expected to propose changing a key element of the current rules, which requires that a water system that is found to contain lead levels higher than 15 parts per billion must replace 7% of its lead service lines each year for as long as the lead levels exceed that measurement. The new proposal would instead require water systems with those lead levels to replace 3% of lead service lines each year.

Olson’s group estimates that the loosening of standards could extend the length of time needed to replace dangerous lead water pipes from 13 years to 33 years.

“It means that another generation of American kids will be exposed to dangerous levels of lead from their drinking water,” he said.

A spokesman for the EPA did not respond to a request for comment.

President Donald Trump has made the rollback of environmental regulations a hallmark of his administration, with initiatives to weaken or erase dozens of EPA regulations on climate change, chemical pollution and water quality. At the same time, he has also called attention to the concerns about lead in water that were ignited by the discovery of high levels of lead and other contaminants that poisoned Flint’s drinking water for more than a year. He also frequently emphasizes his desire to promote “crystal-clear water.”

During a 2016 campaign stop in Flint, Trump said: “It used to be, cars were made in Flint and you couldn’t drink the water in Mexico. Now, the cars are made in Mexico and you cannot drink the water in Flint.”

“We shouldn’t allow it to happen,” he added.

Trump’s first EPA administrator, Scott Pruitt, announced that he would prioritize removing lead from water. Pruitt stepped down amid a corruption scandal in 2017.

A 2018 report from the EPA’s Office of Inspector General said management weaknesses had hobbled the agency’s response to the Flint crisis and that federal officials should have taken stronger action to correct repeated blunders by state regulators.

Pruitt’s successor, Wheeler, was expected to unveil the proposal, which was initiated under Pruitt, on Thursday. The EPA planned to highlight it as part of Children’s Health Month, which falls in October.

New EPA Lead Standards Would Slow Replacement of Dangerous Pipes

WASHINGTON — The Trump administration was expected Thursday to propose new regulations on lead and copper in drinking water, updating a 20-year-old rule that may have contributed to the lead-tainted water crisis in Flint, Michigan, that began in 2015.

But the project is going forward now, in a big win for a powerful consortium of California farmers that stands to profit substantially by gaining access to more irrigation water from a higher dam and has been trying to get the project approved for more than a decade.

For much of the past decade, the chief lobbyist for the group was David Bernhardt. Today, Bernhardt is the interior secretary.

It is not the first time that the Interior Department under Bernhardt’s leadership has taken actions that benefit his former client, the Westlands Water District, a state entity created at the behest of, and largely controlled by, some of California’s wealthiest farmers. Bernhardt also promoted the weakening of an endangered-species regulation that would get Westlands more water, a move that has put him under scrutiny from his department’s inspector general.

The Shasta is already one of the tallest dams in the nation, and preliminary work has begun to raise its height by 18.5 feet. That would allow it to hold about 14% more water, and the 1,000 or so Central Valley farmers that Westlands represents would receive more than anyone else.

“Prior to the Trump administration, this project was dead,” said Jeffrey Mount, a water management expert with the Public Policy Institute of California. “Now it’s coming to life. And Westlands would be the No. 1 winner here.”

Under Bernhardt’s leadership, the Interior Department has disregarded its own scientific and legal analysis showing that raising the Shasta not only would be environmentally damaging and cost-prohibitive but also would also be illegal under California law. California’s attorney general is suing to stop it.

This year, the Interior Department’s Fish and Wildlife Service was told to prepare a new environmental review of the project, but this one will be much more limited in scope, according to a person familiar with the plans, who requested anonymity out of fear of retribution. The new plan would not analyze the effects on salmon habitat downstream or the effects on several rare species.

Excluding review of the dam’s downstream effects is “like analyzing the impact of a loaded pistol without looking past the nose of the barrel,” said Jon Rosenfield, a biologist at San Francisco Baykeeper, a conservation organization. The effects of storing more water behind the dam “are major and extend all the way down to San Francisco Bay,” he said.

The Interior Department is also pursuing a deal, long sought by Westlands, whereby Westlands would help pay for the work to heighten the dam.

William Reilly, who ran the Environmental Protection Agency in the George H.W. Bush administration, said the credibility of environmental decisions “always rests on good science.” The decision to raise the Shasta Dam is an example of the Trump administration’s disregarding scientific evidence when making policy, he said.

“When you see a pattern of not accepting scientific opinion, you lose trust in what the government has done, and it’s very hard to get that back,” Reilly said.

The Trump administration’s ethics pledge requires former lobbyists to recuse themselves for two years from working on any specific issue area involving a particular party on which or for whom they lobbied in the two years before joining the administration.

The Interior Department’s ethics office said it had reviewed Bernhardt’s past lobbying for a law related to the Shasta Dam and concluded before his appointment that the law “was not a particular matter or specific issue area.” As a result, it said, the ethics pledge did not prohibit him from decisions about the dam, unless they were on issues that were “a particular matter” involving his former client.

Bernhardt did not respond to detailed written questions.

Bernhardt’s spokesman, Nicholas Goodwin, said, “Secretary Bernhardt is and has always been committed to upholding his ethical responsibilities, and he has fully complied with those obligations.”

Thomas Birmingham, the general manager of Westlands Water District, said Bernhardt hadn’t lobbied specifically on the issue of the enlargement of the Shasta Dam.

Bernhardt separately is under federal investigation not only for the allegations that he helped weaken Endangered Species Act protections to free up water for Westlands but also for allegations that he continued lobbying for Westlands after formally deregistering as a lobbyist and that he intervened to block a scientific report showing a pesticide’s harmful effects on some endangered species.

Bernhardt is an architect of President Donald Trump’s efforts to roll back environmental regulations. Those rollbacks have benefited numerous parties, among them some of Bernhardt’s former lobbying and legal clients, including oil companies and Halliburton Energy Services, the oil and gas extraction firm once led by former Vice President Dick Cheney.

Bernhardt was appointed by Trump in 2017 as the Interior Department’s deputy secretary. This year, he rose to the top job after his predecessor, Ryan Zinke, resigned following allegations of ethical misconduct.

Zinke’s resignation was one of several high-level departures from the administration amid ethics scandals. Trump’s first pick to lead the Environmental Protection Agency, Scott Pruitt, resigned last year amid federal investigations into suspected improper activities. He, too was succeeded by a former lobbyist, Andrew Wheeler, who previously had represented coal companies.

Pruitt and Zinke have denied wrongdoing.

Rejecting Established Science

The 602-foot Shasta Dam tames the Sacramento River 200 miles north of San Francisco. Built by the Interior Department from 1938 to 1945, it captures the annual snowmelt from Mount Shasta, creating a vast reservoir that anchors California’s federally operated irrigation system, routing water from the state’s verdant north to the almond and pistachio farms of its arid Central Valley.

Today, however, California is suffering dire water shortages. For years, water demand has increased but supply has fallen as the warming climate diminishes Mount Shasta’s snowpack. Westlands, the state’s largest agricultural water user, has for decades pressed state and federal lawmakers for changes to provide it with more water.

Opponents of raising the Shasta say that, among other things, it would violate state law prohibiting construction that harms pristine waterways such as the McCloud River, which drains into Lake Shasta.

“It is explicitly against California law,” said Mount of the Public Policy Institute. “The federal government needs a permit from the state in order to enlarge the Shasta.”

Major concerns about the Shasta Dam have come from the Interior Department’s own scientists, lawyers and economists. In November 2015, staff biologists at the Interior Department’s Fish and Wildlife Service concluded in a 215-page report that raising the dam “would result in the loss, degradation, and fragmentation of habitat” in and around Shasta Lake and the Sacramento River, and throughout the San Francisco Bay Delta.

The report said the project would harm the habitat of many species, including not only the bald eagle but also the northern spotted owl and the Shasta snow-wreath, a delicate white flower. A higher dam would also cut off one of the main routes used by salmon to spawn by reducing the flow of water downstream. That could shrink the Pacific Coast salmon population, the report said, which scientists and fishermen say could devastate the West Coast salmon fishing industry.

“That Fish and Wildlife report tells us that raising the dam would choke the life out of the Sacramento River, and what that means for the West Coast salmon industry I shudder to think,” said John McManus, president of the Golden Gate Salmon Association.

For these reasons, the report concluded that Fish and Wildlife was “unable to support” raising the dam. A separate Interior Department report, in July 2015, found that raising the dam would also be too costly, at roughly $1.5 billion, given budget constraints.

Neither report has been publicly updated with new findings.

The Long Game

Westlands has played the long game, preparing for a moment when political winds might shift in its favor. It has pursued creative strategies large and small to help nudge the Shasta project forward while preparing to act quickly if the opportunity arose.

That strategy explains why, back in 2007, Westlands made an unusual purchase, spending $35 million to buy Bollibokka, a 3,000-acre fishing lodge along the McCloud River, just above the Shasta Dam.

“It was a real ‘What the heck?’ moment,” said Mount, the California water policy expert. “What is a water irrigation utility in the San Joaquin Valley doing taking money from their ratepayers to buy a fishing lodge on the McCloud River, 300 miles away?”

Westlands’ strategy: It wanted to eliminate opposition from landowners along the McCloud, whose property could flood if the dam was raised. So it bought the land itself.

“If there were valuable vacation homes along the McCloud River, it would have had the potential to create additional opposition,” said Birmingham, the general manager of Westlands.

Westlands, as far back as 2009, came up with a plan to offset the high cost of raising the dam by offering to help pay for it. Westlands in 2011 also hired a powerful advocate: Bernhardt, then a lobbyist with the firm Brownstein Hyatt Farber Schreck and previously a top Interior Department official in the George W. Bush administration. During his five years as a lobbyist and lawyer for Westlands, the water district paid his firm at least $1.3 million in lobbying fees, his disclosure reports show.

As the chief lobbyist for Westlands, Bernhardt advocated a federal water law that, among its many provisions, would let the Interior Department undertake expensive dam expansions provided that it find an outside cost-sharing partner. Today, that provision, supported by Westlands, is what has enabled the Interior Department to expand the Shasta Dam, paid for under a cost-sharing plan with Westlands. Preliminary construction work has begun.

Westlands could help cover one-third of the projected $1.5 billion cost and perhaps more, Birmingham said. The water district could end up paying “the lion’s share,” he added. He also said he did not consider his group to be the biggest beneficiary of the Shasta project. “If it’s built the way it’s described, Westlands will benefit,” but the state of California as a whole also stands to gain, he said.

A spokeswoman for Bernhardt, Molly Block, wrote in an email that the agency’s ethics officials concluded that Bernhardt had lobbied on the broader bill, which included thousands of provisions having nothing to do with Westlands, and therefore it was not necessary to distinguish which specific issues he had lobbied on within the bill.

Ethics experts said the Interior Department’s reversal on Shasta raised ethics questions.

Marilyn Glynn, who was general counsel and acting director of the U.S. Office of Government Ethics during the George W. Bush administration, said that it did not look as if Bernhardt had violated ethics rules in the Shasta matter but that the decision “creates the appearance that this administration is interested in favoring only the administration’s supporters instead of the overall public good.”

Shasta Moves Forward

Bernhardt stopped lobbying for Westlands in November 2016 and began work at the Interior Department in August 2017, first as its deputy secretary. Soon thereafter, the agency moved ahead on Shasta, explicitly naming Westlands in its budget request to Congress.

In February 2018, the agency asked Congress to pay $75,000 for “supporting activities” related to the 2015 study of expanding the dam and also requested $20 million for preconstruction and design work. The budget documents noted that the Interior Department had to find a cost-sharing partner and also noted that Westlands had previously signed an agreement in principle to share construction costs, although that agreement had expired in 2017. Congress approved that funding.

The same month, Westlands’ board met in Fresno, California, and voted to enter into a new deal to help pay for the project. One month later, in March, Bernhardt discussed the heightening of the Shasta Dam with an agency ethics official, according to that official.

With the project’s funding in motion, in May 2018, Bernhardt spoke at the Association of California Water Agencies, telling the audience that raising the Shasta was “a high priority.” This year, the Interior Department asked Congress to nearly triple the spending on enlarging the Shasta, to $57 million, although Congress has not yet approved that request. The Interior Department’s website says it expects by December to issue the first construction contract to raise the Shasta Dam by 18.5 feet.

Interior Chief Pushes Dam Project That Old Lobbying Client Wanted

WASHINGTON — For years, the Interior Department resisted proposals to raise the height of its towering Shasta Dam in Northern California. The department’s own scientists and researchers concluded that doing so would endanger rare plants and animals in the area, as well as the bald eagle, and devastate the West Coast’s salmon industry downstream.

The formal abolishment of one of California’s signature environmental policies — tailpipe pollution is the largest source of greenhouse-gas emissions in the United States — will be announced Wednesday afternoon at the Washington headquarters of the Environmental Protection Agency, according to two people familiar with the matter. President Donald Trump at the time will be traveling in California, where he is scheduled to attend fundraisers in Los Angeles and Silicon Valley.

Lawyers said the action takes the administration into uncharted legal territory in its battle with the state, which has vowed to fight the change all the way to the Supreme Court.

“This is unprecedented and a tremendously big deal,” said Richard L. Revesz, a professor of environmental law at New York University, noting that no administration has ever revoked a state’s authority to regulate its own air quality.

In a speech Tuesday, Andrew Wheeler, the head of the EPA, said, “We embrace federalism and the role of the states, but federalism does not mean that one state can dictate standards for the nation.”

The attack on California is only the latest in a broad array of efforts to weaken climate change regulations by a president who has repeatedly expressed skepticism about the scientific consensus that global warming is human-caused. The administration plans to weaken auto emissions standards nationwide, has rolled back rules governing coal-burning power plants and eased restrictions on energy companies governing leaks of methane, a powerful greenhouse gas.

A revocation of the California waiver would have national significance. Thirteen other states follow California’s tighter standards, together representing roughly a third of the national auto market.

Legal experts said that if Trump’s move is ultimately held up by the Supreme Court, it could permanently block states from regulating vehicle greenhouse-gas pollution. If it is rejected by the Supreme Court, it would allow states to set separate tailpipe pollution standards from those set by the federal government, potentially splitting the nation’s auto market into two or more markets, with automakers required to sell cars meeting different pollution standards in different states — a scenario automakers would like to avoid.

Environmental advocates criticized the California move, noting that weakening the state’s authority this way is directly at odds with the administration’s position on other vital issues — such as gun restrictions and abortion laws — that individual states have the right to set their own rules. “Trump has married his administration-wide hostility to the environment to his personal vendetta against California,” said Dan Becker, director of the Safe Climate Campaign, an advocacy group.

A White House spokesman referred questions on the matter to the EPA. A spokesman for the agency did not respond to an email requesting comment. In his speech to the National Automobile Dealers Association, Wheeler said the administration would soon be moving ahead with a single national vehicle pollution standard, suggesting that it would include the California revocation.

The move has been widely expected since last summer, when the Trump administration unveiled its draft plan to roll back the strict federal fuel economy standards put in place by the Obama administration. That draft Trump rule also included a plan to revoke the state’s legal waiver — granted to California under the 1970 Clean Air Act — allowing it to set tougher state-level standards than those put forth by the federal government.

Xavier Becerra, the attorney general of California, said the state intends to strike back with a lawsuit. “While the White House clings to the past, automakers and American families embrace cleaner cars,” he wrote in an email. He called the tougher standards “achievable, science-based, and a boon for hardworking American families and public health.”

In recent months, the administration’s broader weakening of nationwide auto-emissions standards has become plagued with delays as staff members struggled to prepare legal, technical or scientific justifications for it. As a result, the White House decided to proceed with just one piece of its plan — the move to strip California of its authority to set tougher standards — while delaying its wider strategy, according to these people.

The administration’s plans have been further complicated because major automakers have told the White House that they do not want such an aggressive rollback. In July, four automakers formalized their opposition to Trump’s plans by signing a deal with California to comply with tighter emissions standards if the broader rollback goes through.

Trump, who was blindsided and angered by that announcement, according to two people familiar with the matter, wanted to press forward with a policy that would punish California.

“It’s clear that the president felt very strongly about this,” said Thomas J. Pyle, the president of the Institute for Energy Research, a think tank that supports fossil fuels, who advised Trump’s 2016 campaign. “The actions of California and the other auto companies probably firmed up or hardened the president’s resolve on this issue, so here we go.”

The Obama-era tailpipe pollution rules that the administration hopes to weaken would require automakers to build vehicles that achieve an average fuel economy of 54.5 mpg by 2025, cutting about 6 billion tons of carbon dioxide pollution over the lifetimes of those vehicles. The proposed Trump rule would lower the requirement to about 37 mpg, allowing for most of that pollution to be emitted.

White House officials have also been eager to move quickly to revoke California’s authority to set its own standards because they want the opportunity to defend the effort in the Supreme Court before the end of Trump’s first term. The thinking goes that if a Democrat were to be elected president in 2020, the federal government would be unlikely to defend revocation of the waiver in the high court.

California’s special right to set its own tailpipe pollution rules dates to the 1970 Clean Air Act, the landmark federal legislation designed to fight air pollution nationwide. The law granted California the right to receive federal waivers to set stricter rules of its own because the state already had clean air legislation in place before it passed.

Over the decades, California requested and received numerous federal waivers to set tighter state-level standards on the tailpipe pollutants that cause smog and respiratory problems, though the federal government didn’t always grant them.

The waiver in effect now was crafted in the wake of the 2008 financial crisis, when the nation’s automakers were financially teetering. It was part of a deal struck by President Barack Obama to toughen emissions standards nationwide while aligning California’s rules with federal regulations. It was designed to remain in effect until 2025.

Trump's EPA to Revoke California Role on Car Emissions

WASHINGTON — The Trump administration is expected on Wednesday to formally revoke California’s authority to set auto emissions rules that are stricter than federal standards, taking a major step forward in its wide-ranging attack on government efforts to fight climate change.

The rollback of the 2015 measure, known as the Waters of the United States rule, has been widely expected since the early days of the Trump administration, when President Donald Trump signed an executive order directing federal agencies to begin the work of repealing and replacing it.

Weakening the Obama-era water rule had been a central campaign pledge for Trump, who characterized it as a federal land-grab that impinged on the rights of farmers, rural landowners and real estate developers to use their property as they see fit.

Environmentalists say Trump’s push to loosen clean-water regulations represents an assault on the nation’s streams and wetlands at a moment when Trump has repeatedly declared his commitment to “crystal-clean water.”

The repeal of the water rule, which is scheduled to be announced at the headquarters of the National Association of Manufacturers, will take effect in a matter of weeks.

The Environmental Protection Agency and the Army Corps of Engineers, which had worked together to write the original Obama rule, are expected to issue a new, looser replacement rule by the end of this year.

The rollback is the latest in a series of actions by the Trump administration to weaken or undo major environmental rules. Others include proposals to loosen regulations on planet-warming emissions from cars, power plants and oil and gas drilling rigs; moves designed to push new drilling in the vast Arctic National Wildlife Refuge; and efforts to weaken protections under the Endangered Species Act.

Environmentalists assailed the move.

“With many of our cities and towns living with unsafe drinking water, now is not the time to cut back on clean water enforcement,” said Laura Rubin, director of the Healing Our Waters-Great Lakes Coalition.

But agricultural groups, an important political constituency for Trump, praised the repeal of a regulation that they said had restricted how farmers could use their land.

“The rule that was developed in 2015 was a significant overreach,” said Don Parrish, director of regulatory relations with the American Farm Bureau Federation, which has lobbied for the repeal and replacement of the rule. “It overstepped the limit of protecting clean water and tried to regulate land use. It created liabilities that can end up putting farmers in jail.” He was referring to actions like using pesticides, he said.

The Obama rule, developed under the authority of the 1972 Clean Water Act, was designed to limit pollution in about 60% of the nation’s bodies of water, protecting sources of drinking water for about a third of the United States. It extended existing federal authority to limit pollution in large bodies of water, like the Chesapeake Bay and Puget Sound, to smaller bodies that drain into them, such as tributaries, streams and wetlands.

Under the rule, farmers using land near streams and wetlands were restricted from doing certain kinds of plowing and from planting certain crops and would have been required to obtain EPA permits in order to use chemical pesticides and fertilizers that could have run off into those bodies of water. Those restrictions will now be lifted.

It is expected that the new rule, still being developed, will retain federal protections for larger bodies of water, the rivers that drain into them and wetlands that are directly adjacent to those bodies of water.

But it will quite likely strip away protections of so-called ephemeral streams, in which water runs only during or after rainfalls, and of wetlands that are not adjacent to major bodies of water, or connected to such bodies of water by a surface channel of water. Those changes would represent a victory for farmers and rural landowners, who lobbied the Trump administration aggressively to make them.

Lawyers said the interim period between the completion of the legal repeal of the Obama rule and the implementation of the new Trump rule this year could be one of regulatory chaos for farmers and landowners, however.

“The Obama clean water rule had very clear lines defining which waters are protected by the Clean Water Act, versus which waters are not, while repealing the rule means replacing those lines with case-by-case calls,” said Blan Holman, an expert on water regulations with the Southern Environmental Law Center.

“This will be very unpredictable,” Holman said. “They are imposing a chaotic case-by-case program to replace clear, bright-line rules.”

Trump Administration to Finalize Rollback of Clean-Water Protections

WASHINGTON — The Trump administration on Thursday is expected to complete the legal repeal of a major Obama-era clean water regulation, which had placed limits on polluting chemicals that could be used near streams, wetlands and water bodies.

The decision, by Judge Sharon L. Gleason of U.S. District Court for the District of Alaska, concluded late Friday that President Barack Obama’s 2015 and 2016 withdrawal from drilling of about 120 million acres of Arctic Ocean and about 3.8 million acres in the Atlantic “will remain in full force and effect unless and until revoked by Congress.” She wrote that an April 2017 executive order by Trump revoking the drilling ban “is unlawful, as it exceeded the president’s authority.”

The decision, which is expected to be appealed in the 9th U.S. Circuit Court of Appeals, immediately reinstates the drilling ban on most of the Arctic Ocean off the coast of Alaska, a pristine region where oil companies have long sought to drill. Along the Atlantic coast, it blocks drilling around a series of coral canyons that run from Norfolk, Virginia, to the Canadian border.

Most immediately, the decision will force the Interior Department to withdraw the waters of the Arctic Ocean from its forthcoming plan detailing where the federal government intends to lease federal waters to oil companies for offshore drilling. A draft of that plan published last year called for drilling off the entire U.S. coastline.

Although Friday’s court decision relates specifically to a law on offshore drilling, it could also hamstring Trump’s efforts to erase or reduce the creation of large protected areas of public lands by previous presidents.

“The statutes and the Supreme Court have been silent on the authority of a president to modify or reduce a predecessor’s protections of these public lands, waters and monuments,” said Patrick Parenteau, a professor of environmental law at Vermont Law School. “But these decisions are showing that if a president wants to reverse a predecessor’s environmental policy, they have to give a cogent reason why.”

Parenteau predicted that the case was likely to reach the Supreme Court, though probably not for several years.

This article originally appeared in <a href="https://www.nytimes.com/2019/03/30/climate/trump-oil-drilling-arctic.html" id="8caa83d5-6ea4-314b-a32a-463180e792a0">The New York Times</a>.

WASHINGTON — In a major legal blow to President Donald Trump’s push to expand offshore oil and gas development, a federal judge ruled that an executive order by Trump that lifted an Obama-era ban on oil and gas drilling in the Arctic Ocean and parts of the North Atlantic coast was unlawful.

Trump Order to Open Arctic Ocean to Drilling Was Unlawful, Judge Rules

The decision, which is expected to be appealed in the 9th U.S. Circuit Court of Appeals, immediately reinstates the drilling ban on most of the Arctic Ocean off the coast of Alaska, a pristine region home to endangered species including polar bears and bowhead whales where oil companies have long sought to drill. Along the Atlantic coast, it blocks drilling around a series of coral canyons that run from Norfolk, Virginia, to the Canadian border which are home to unique deepwater corals and rare fish species.

In addition, Friday’s ruling by the judge, an Obama appointee, has broader implications for Trump’s effort to push drilling across the U.S. coastline and on public lands. Specifically, the Arctic Ocean drilling case could give legal ammunition to opponents of Trump’s efforts to roll back protections for 2 million acres of national monuments created by Obama and President Bill Clinton.

The case adds to a growing roster of legal losses for Trump’s efforts to undo Obama’s environmental legacy. Experts in environmental law estimate that the Trump administration has now lost about 40 environmental cases in federal courts.

The White House referred questions on the matter to the Interior Department, where a spokeswoman declined to comment.

And although Friday’s court decision relates specifically to a law on offshore drilling, it could also hamstring Trump’s efforts to erase or reduce the creation of large protected areas of public lands by previous presidents.

“The statutes and the Supreme Court have been silent on the authority of a president to modify or reduce a predecessor’s protections of these public lands, waters and monuments,” said Patrick Parenteau, a professor of environmental law at Vermont Law School. “But these decisions are showing that if a president wants to reverse a predecessor’s environmental policy, they have to give a cogent reason why. Just saying ‘energy dominance’ is not enough. Saying ‘I won the election’ is not enough.”

Both Obama’s efforts to use his executive authority to ban drilling in the Arctic Ocean, and Trump’s efforts to undo that ban, are legally unprecedented.

In using his executive authority to permanently ban drilling in most of the Arctic Ocean, Obama relied on an obscure provision of a 1953 law, the Outer Continental Shelf Lands Act, which governs how the executive branch uses federal waters for offshore energy exploration. The law includes a provision that lets presidents put those waters off limits to oil and gas drilling. Presidents Dwight Eisenhower, Richard Nixon and Clinton used the law to protect sections of the Atlantic, Pacific and Arctic oceans, but those protections came with time limits, usually one to two decades.

In late 2016, as he sought to legally cement environmental protections before Trump, then the president-elect, took office, Obama used what both supporters and critics called a creative and unusual interpretation of that law to set a permanent ban on drilling in most of the Arctic Ocean.

Three months after taking office, Trump issued an executive order rescinding the ban. That made him the first president to seek to revoke a decision by his predecessor to use the law to protect federal waters.

Environmental groups promptly sued the administration over the move. They welcomed Friday’s court decision.

“Since coming into office, Trump has been on an one-man campaign to undo the work of his predecessor,” said Niel Lawrence, a lawyer with the Natural Resources Defense Council, who took part in the oral arguments in the Alaska case. “What this opinion confirms is that there are constitutional limits to that.”

Erik Milito, a spokesman for the American Petroleum Institute, which lobbies for the oil industry and which joined the Trump administration’s case, said, “While we disagree with the decision, our nation still has a significant opportunity before us in the development of the next offshore leasing plan to truly embrace our nation’s energy potential and ensure American consumers and businesses continue to benefit from U.S. energy leadership.”

Experts said Gleason’s decision could affect the legal outcome of Trump’s efforts to roll back certain protections created by his predecessors on public lands.

Just as presidents have used the 1953 offshore-drilling law to protect federal waters, they have used a different law, the 1906 Antiquities Act, put in place by President Theodore Roosevelt, to designate and protect millions of acres of lands as permanent public monuments. Presidents throughout the past century have created such monuments.

While at least two presidents have used their authority to shrink the size of monuments created by their predecessors, Trump has done so at a more drastic scale. In December 2017, Trump cut about 2 million acres from two national monuments in Utah: the Bears Ears monument, created by Obama, and the Grand Staircase-Escalante monument, created by Clinton. At the time it was the largest rollback of federal land protection in the nation’s history.

Already, lawsuits on the issue are making their way through federal courts. Parenteau and others predicted that Gleason’s decision could possibly have a bearing on those cases.

That is because, in the language of both laws, Congress gave the president the right to occasionally designate public lands and waters for protection. However, each of the laws is silent on whether a successor can reduce or revoke those protections.

If Trump’s challengers win in court, the decision could affirm future presidents’ right to set bans of offshore drilling that could be undone only by Congress (as opposed to a later president) and similarly could set a precedent that presidential decisions to expand protections of public land could be revised or reversed only by Congress.

If Trump prevails in court, future presidents could potentially use an executive order to shrink any of the dozens of monuments created by their predecessors or similarly revoke presidential decisions to protect federal waters.

The decision, by Judge Sharon Gleason of U.S. District Court for the District of Alaska, concluded late Friday that President Barack Obama’s 2015 and 2016 withdrawal of about 125 million acres of Arctic Ocean from drilling “will remain in full force and effect unless and until revoked by Congress.” She wrote that an April 2017 executive order by Trump revoking the drilling ban “is unlawful, as it exceeded the president’s authority.”

The decision, which is expected to be appealed in the 9th U.S. Circuit Court of Appeals, immediately reinstates the drilling ban on most of the Arctic Ocean off the coast of Alaska, where oil companies have long sought to drill. It also has broader implications for Trump’s effort to push drilling across the U.S. coastline and on public lands.

And it adds to a growing roster of legal losses for Trump’s effort to undo Obama’s environmental legacy. Experts in environmental law estimate that the Trump administration has now lost about 40 environmental cases in federal courts.

Most immediately, the decision will force the Interior Department to withdraw the waters of the Arctic Ocean from its forthcoming plan detailing where the federal government intends to lease federal waters to oil companies for offshore drilling. A draft of that plan published in 2017 called for drilling off the entire U.S. coastline.

A spokeswoman for the Interior Department declined to comment, and a spokesman for the White House did not immediately respond to a request for comment.

Parenteau predicted that the case is likely to reach the Supreme Court.

This article originally appeared in <a href="https://www.nytimes.com/2019/03/30/climate/trump-arctic-oil-drilling.html" id="d3763938-43bf-3341-ab79-c34572f5b5fe">The New York Times</a>.

WASHINGTON — In a legal blow to President Donald Trump’s push to expand offshore oil and gas development, a federal judge ruled that an executive order by Trump that lifted an Obama-era ban on oil and gas drilling in the Arctic Ocean was unlawful.

Trump's Order to Open Arctic Waters to Drilling Was Unlawful, Federal Judge Finds

Interior Secretary David Bernhardt, a former oil lobbyist who was confirmed by the Senate last month to head the agency that oversees the nation’s public lands and waters, announced the plan Thursday afternoon in Port Fourchon, Louisiana, the vast industrial hub that serves as the onshore base for most companies that drill in the Gulf of Mexico.

The oil industry praised the move. Environmental groups warned that the rollbacks could pave the way for similar crises to happen again.

The weakened safety rules come as the Trump administration has also sought to vastly expand offshore drilling in the nation’s waters. Last year the Interior Department proposed opening almost the entire U.S. coastline to drilling, although Bernhardt recently said the administration may delay those plans while court challenges are addressed.

Among the safety changes put in place Thursday is a significant reduction in the requirement for oil companies to test fail-safe devices called blowout preventers, which are intended to be a last line of defense against disasters like Deepwater Horizon. In the 2010 fire and monthslong oil leak, the failure of a blowout preventer, an immense device resting on the seabed and extremely difficult to access, was at the heart of the crisis.

The new rules include some changes that had been sought by the American Petroleum Institute, the lobbying arm of the oil industry. A bipartisan commission appointed by President Barack Obama to investigate the Deepwater Horizon disaster had specifically cautioned federal regulators against following the institute’s guidance, writing in its 2014 report that “API-proposed safety standards have increasingly failed to reflect ‘best industry practices’ and have instead expressed the ‘lowest common denominator.’”

Bernhardt praised the new rule as one that would allow President Donald Trump to continue his policy of aggressively expanding oil production without sacrificing safety.

“Today’s final rule puts safety first, both public and environmental safety, in a common sense way,” he said. “Incorporating the best available science, best practices and technological innovations of the past decade, the rule eliminates unnecessary regulatory burdens while maintaining safety and environmental protection.”

Erik Milito, a vice president of the American Petroleum Institute, wrote in a statement, “This revised well control rule will help to further manage risks and better protect workers and the environment.”

Environmental groups criticized the changes.

Referring to the fact that the new rules include changes sought by the American Petroleum Institute, Bob Deans, a spokesman for the advocacy group the Natural Resources Defense Council said, “The Trump administration, in other words, wants to hand over responsibility for industry safety to the very entity the commission warned against entrusting with that responsibility.”

After the 2010 disaster, Obama commissioned the bipartisan panel to investigate the cause and recommend policy changes meant to prevent such disasters. Among the key recommendations was the release by the Interior Department of tougher safety regulation on the construction, oversight and operation of offshore oil wells and other equipment, particularly blowout preventers.

The Deepwater Horizon explosion was caused in part when the buckling of a section of drill pipe led to the malfunction of a blowout preventer on a BP well known as Macondo.

In Obama’s final year in office, the Interior Department issued new safety rules on undersea wells and blowout preventers. In Trump’s first year of office, he announced his plans to loosen those rules. Those plans were detailed in a 176-page draft published by the Interior Department in the fall, and finalized in the 289-page plan made public Thursday.

In the final rule, the Interior Department noted that the changes were expected to save the oil industry about $824 million over 10 years.

“The changes in the new rule allow for producers to be nimbler, with more adaptive guidelines based on the most up-to-date insights and innovative technology,” said Barry Russell, chief executive of the Independent Petroleum Producers of America.

In addition to reduced testing of blowout preventers — the Obama-era rules required 30-minute tests every 14 days, whereas the new rules reduce that to 5-minute tests every 21 days — the new rules also eliminate a requirement that companies report some of those safety-test results to the Interior Department.

In addition, the new rule removes a requirement for an Interior Department approved independent expert to verify safety measures and equipment used in offshore drilling operations. And it removes a requirement that drilling operators provide real-time data from wells to onshore observers.

The final rule will become effective 60 days after it is published in the Federal Register, which is expected to happen this week or next week.

This article originally appeared in <a href="https://www.nytimes.com/2019/05/02/climate/offshore-drilling-safety-rollback-deepwater-horizon.html" id="261c5d85-d3f3-3a76-a66b-8c540f47e41f">The New York Times</a>.

Interior Dept. Loosens Offshore-Drilling Safety Rules Dating From Deepwater Horizon

WASHINGTON — The Trump administration on Thursday made public its rollback of a major offshore-drilling safety regulation, significantly weakening an Obama-era rule that was put in place after the 2010 Deepwater Horizon explosion in the Gulf of Mexico, which killed 11 people and sent 4.9 million barrels of oil gushing into the sea, causing the worst oil spill in American history.

Coral Davenport

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