Policy News: July 1, 2022

In this issue:

ESA Decries the Supreme Court’s West Virginia v EPA Decision
The Supreme Court decision severely hinders the efforts of the United States to reduce emissions.

ESA, Scientific Societies Submit Amici Curiae Brief in Sackett v. EPA Supreme Court Case
Supreme Court will hear Clean Water Act case in October 2023.

House Appropriations Bills Include Increases for Ecological Science
NSF receives $9.63 billion, a $793 million increase.

Congress
Senate Committee advances NOAA nomination.

Executive Branch
Biden administration repeals definition of habitat under the Endangered Species Act.

Courts
Supreme Court narrows ruling regarding tribal jurisdiction in Oklahoma.

States
Environmentalists hope new Maryland law will reduce nutrient pollution in the Chesapeake Bay.

International
UN moves Convention on Biological Diversity meeting location to Montreal.

Scientific Community
NSF seeks recommendations for a new Assistant Director for Biological Sciences.

Federal Register opportunities

ESA Decries the Supreme Court’s West Virginia v. EPA Decision

The Ecological Society of America, representing 8,000 research ecologists and environmental scientists, is greatly concerned about the recent United States Supreme Court decision in West Virginia v. EPA. At stake was the ability to reduce carbon emissions as written in the ‘Clean Power Plan’ regulation under the auspices of the Clean Air Act that gives the Environmental Protection Agency (EPA) power to regulate “the best system of reducing emissions.” This ruling essentially disallows the EPA to impose actions that would reduce life threatening carbon dioxide emissions from coal-fired power plants contributing to climate change.

The Supreme Court decision severely hinders the efforts of the United States to reduce emissions. This majority ruling will result in damaging our ecosystems, reducing biodiversity, and harming people and their livelihoods across the nation and throughout the globe by eliminating the regulations needed to effectively reduce harmful emissions.

We appeal to Congress to swiftly enact legislation that will empower the EPA to take appropriate regulatory actions to reduce the carbon dioxide emissions from coal-fired power plants. In addition, we encourage states to implement clean energy strategies that reduce emissions.

News Coverage of the West Virginia v EPA Decision:

• US Supreme Court hobbles the EPA’s authority over climate emissions – Nature
• Court Decision Leaves Biden With Few Tools to Combat Climate Change – The New York Times
• 3 takeaways from the Supreme Court’s big climate ruling – The Washington Post
• EXPLAINER: Why Court’s EPA-climate change ruling matters – Associated Press
• Congressional climate hawks demand action after ‘alarming’ Supreme Court decision – The Hill
• ‘I will take action’: Biden responds to SCOTUS climate ruling – E&E News

ESA, Scientific Societies Submit Amici Curiae Brief in Sackett v. EPA Supreme Court Case

Twelve scientific societies, including ESA and the members of the Consortium of Aquatic Science Societies, filed an amici curiae (friends of the court) brief with the US Supreme Court in the Sackett v. US Environmental Protection Agency case. The Supreme Court will hear this case, which pertains to the jurisdiction of the Clean Water Act (CWA) and the definition of the Waters of the U.S. (WOTUS), in early October 2022. The court may not issue a final ruling until summer 2023.

In this case, Chantell and Michael Sackett sought a CWA Section 404 permit to develop wetlands on their property that was denied.

At question is the ruling made over 15 years ago in Rapanos v. United States.  According to Venable law firm, in “Justice Kennedy’s ‘significant nexus’ test from Rapanos, the courts concluded that the wetlands on the Sacketts’ property have a significant nexus to a nearby lake and are therefore waters of the United States. The Sacketts have argued consistently (with support of the Pacific Legal Foundation) that they do not need a permit to develop their land because Justice Scalia’s ‘continuous surface connection’ test is the controlling law from Rapanos.”

The scientific societies’ brief argues that the Clean Water Act’s mandate to restore and maintain the chemical, physical, and biological integrity of the nation’s waters is inherently founded on science and thus can only be achieved through the consideration of science. Meanwhile, the Sackett’s proposed framework rejects hydrological reality, ignoring the science behind the ways in which wetlands and streams affect traditional navigable waters.

Currently, the EPA is establishing a “durable” definition of that’s informed by a “diverse perspectives and protects public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and industries that depend on clean water.” The White House’s latest regulatory unified agenda reports that the administration expects to release a new proposed rule in November 2023, after the Supreme Court issues its ruling.

In the past, ESA and other science societies have supported the 2015 definition of WOTUS that is based in sound science including endorsing an amicus brief in a former court case.

House Appropriations Bills Include Increase for Ecological Science

The House Appropriations Committee released and passed most spending bills for the federal FY 2023 appropriations cycle. The top Democratic and Republican members of the House and Senate Appropriations Committees have not yet reached an agreement on overall spending. The House’s overall spending level is largely in line with the president’s budget request. The full House is expected to consider appropriations bills in July. Top line agency numbers in the spending bills include:

• The National Oceanic and Atmospheric Administration receives $6.8 billion, a $908.6 million increase. This represents record spending levels for NOAA.
• The National Science Foundation would receive $9.63 billion. This falls short of $11 billion number requested by the Coalition for National Science Funding, the coalition of universities and scientific societies that advocates for NSF funding. The $9.63 billion number also falls short of the amounts in the House and Senate innovation and competitiveness legislation.
• The House bill proposes $11.5 billion for the Environmental Protection Agency, a 20% increase. The agency’s science and environmental programs would receive $4.67 billion, a $951 million increase.
• The Bureau of Land Management received $1.5 billion, a $135 million increase. This includes $81 million for sage-grouse conservation and $37 million for threatened and endangered species.
• The spending bills include $1.6 billion for the U.S. Geological Survey, a $250 million increase. This includes $338.9 million for the Ecosystems Mission Area, an $81 million increase. Appropriations allocate $85 million for the National and Regional Climate Adaptation Centers and $28.15 for the cooperative research centers. These amounts represent increases for both programs.
• The U.S. Fish and Wildlife Service receives $1.9 billion, a $230 million increase.
• The House bill includes $8 billion for the Department of Energy Office of Science, a $525 million increase over FY 2022 levels. This includes $840 million for Biological and Environmental Research.

In the bill report, House Appropriators recommend that the Interior Department create chief botanist positions in the Bureau of Land Management, the U.S. Geological Survey, the National Park Service and the US Fish and Wildlife Service.

Congress

Nominations: The Senate Commerce, Science and Transportation Committee advanced President’s Biden’s pick to be NOAA’s assistant Commerce secretary for environmental observation and prediction, Michael Morgan by a unanimous vote. Morgan is a professor in the Department of Atmospheric and Oceanic Science at the University of Wisconsin, Madison.

Legislative Updates:

• House Minority Leader Kevin McCarthy (R-CA) and Rep. Scott Peters (D-CA) introduced the Save Our Sequoias Act (H.R. 8186). This bill authorizes funding for Sequoia conservation efforts by the Forest Service and the National Park Service and codifies the already existing the National Park Service’s Giant Sequoia Lands Coalition.
• Patrick Leahy (D-VT) introduced a bill (H.R. 4415) to reauthorize the Lake Champlain Basin Program and increase authorizing funding for the program to $50 million. This EPA program supports restoration and protection efforts in Lake Champlain and the surrounding watershed. The Lake Champlain Basin Program received $28 million in fiscal year 2022. Sens. Bernie Sanders (I-VT), Chuck Schumer (D-NY) and Kirsten Gillibrand (D-NY) are co-sponsors of the legislation and Rep. Peter Welch (D-VT) introduced companion legislation (H.R. 8138) in the House of Representatives.

More News:

• Congress Searches for Compromise on Landmark Innovation Bill – FYI

Executive Branch

White House: Ahead of an international oceans summit, President Biden signed a memo directing federal agencies to better coordinate with themselves and international allies to stop illegal fishing. The memo does not name China by name, but it is widely considered to be aimed at stopping illegal fishing by China. A new proposed rule from the National Oceanic and Atmospheric Administration, released in tandem with the memo, expands the activities that NOAA can consider while determining if nations are engaged in illegal fishing.

USFWS: The Biden administration repealed a Trump-era Endangered Species Act rule which created a definition of habitat under the Endangered Species Act. The old definition reads, “habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.” This definition prohibited the agencies from designating areas that are not currently occupied by the species as habitat and would further ecosystem restoration improvements to become suitable habitat. It prohibited federal agencies from protecting areas that could become important habitat for rare species under climate change.

Forest Service: A new environment assessment finds that permitting copper mining on federal lands near the Boundary Waters Canoe Area will damage water quality in the area. The agency is requesting comments on the environmental assessment and a proposal to withdraw the area from new mineral leasing for 20 years. Comments must be submitted by July 28, 2022.

In October 2021, the Forest Service and the Bureau of Land Management announced that the administration they were starting a two-year process to receive public comment and conduct an environmental analysis to evaluate the potential impacts of mining on the natural and cultural resources in the area. Federal agencies will not issue new mineral leases during the review.

A mining company, Twin Metals Minnesota, applied for permits for a copper-nickel mine near Ely, MN, drawing the ire of environmentalists. President Obama recommended a mining withdrawal in this area in 2016, but the Trump administration stopped that process.

NOAA: The agency inaugurated new weather and climate supercomputers, upgrading the capacity, storage and speed of the nation’s Weather and Climate Operational Supercomputing System. Ecologists use the data collected by the computers for many purposes including ecological forecasting. The upgrade was needed as the older computers were not powerful enough for everyone to access the data needed. ESA previously advocated for researchers to have fair access to the data.

The enhanced computing and storage capacity will allow NOAA to deploy higher-resolution models to better capture small-scale features like severe thunderstorms and more realistic model physics to better capture the formation of clouds and precipitation, resulting in better weather forecasts.

NOAA: Commerce Secretary Gina Raimondo announced that NOAA will award nearly $3 billion in competitive funding for coastal and climate resilience. Funding for this program is from the Bipartisan Infrastructure Law. Funded projects will support climate ready coasts, getting climate information and services in the hands of decision-makers and restoring fisheries habitat.

More News:

• Critical mistakes and miscalculations by federal employees caused devastating New Mexico wildfire, report finds – CBS News
• ‘In it for the long haul’ – The Hill
• Native American tribes to co-manage national monument for first time – The Washington Post
• Readout: OSTP and CEQ Initial Engagement on White House Indigenous Knowledge Effort – White House

Courts

• Supreme Court hands defeat to Native American Tribes in Oklahoma – National Public Radio

States

• With Increased Nutrient Pollution in the Chesapeake Bay, Environmentalists Hope a New Law Will Cleanup Wastewater Treatment in Maryland – Inside Climate News

International

Biodiversity: The United Nations Convention on Biological Diversity moved the location of the Convention of Parties (COP15) meeting from Kumming, China to Montreal, Quebec. This meeting has been repeatedly delayed due to the covid pandemic and organizers were concerned that China’s ‘zero COVID’ strategy could delay the meeting again. The meeting will take place December 5-17, 2022. Montreal is the home of the Convention on Biological Diversity’s secretariat. China will continue to chair the meeting.

IPBES: Representatives of almost 140 governments will begin a week-long meeting on Sunday in Bonn, Germany to advance the science and evidence necessary to address the global biodiversity crisis. The ninth session of the Plenary of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (#IPBES9) will be the first in-person meeting of the global pa since the start of the COVID-19 pandemic. The body will consider the approval of two major new scientific reports on Sustainable Use of Wild Species & Values and Valuation of Nature and launching new assessment on links between business and biodiversity.

More News:

• Young people go to European court to stop treaty that aids fossil fuel investors – The Guardian
• New Colombian president pledges to protect rainforest – Associated Press
• Ukraine War’s Latest Victim? The Fight Against Climate Change. – The New York Times
• Scientists warn deal to save biodiversity is in jeopardy – Nature
• The ocean takes center stage at a U.N. conference – The Washington Post

Scientific Community

National Academies: The Polar Research Board is soliciting nominations for new members. The board is particularly encouraging nominees with expertise in glaciology, sea ice, marine and terrestrial conservation, hydrology, geology/geophysics, space science, resource management, and science policy. Nominations are due July 8, 2022.

NSF: Director Sethuraman Panchanathan sent a Dear Colleague letter seeking recommendations and help in identifying a new Assistant Director for Biological Sciences. The new Assistant Director will succeed Dr. Joanne Tornow, who will retire at the end of September 2022. Recommendations must be submitted via email to biosrch@nullnsf.gov by Friday, August 12, 2022.

Department of Education: The Department released a new proposed rule modifying the Title IX regulation. According to the Department of Education, the proposed change will restore crucial protections for students who are victims of sexual harassment, assault, and sex-based discrimination. Previous regulations weakened these protections. The proposed rule will be open for comment for 60 days after it is published in the Federal Register.

ELI: This month, the Environmental Law Institute, Delaware Law’s Global Environmental Rights Institute, Barry University’s Center for Earth Jurisprudence, the American Bar Association (ABA) Section of Environment, Energy, and Resources (SEER), the ABA Section of Civil Rights and Social Justice (CRSJ), and the ABA Center for Human Rights will host a three-part webinar series on the right to a healthy environment.

This year marks the 50th anniversary of the birth of the Stockholm Declaration, a landmark international accord that acknowledged a basic right to a healthy environment. Last year, the United Nations Human Rights Council in Geneva formally recognized the right to a “clean, healthy and sustainable environment” and recommended that the UN General Assembly do the same. In the first part of this series, a panel of international leaders will discuss what it might mean for the UN General Assembly to adopt a resolution that recognizes the human right to a healthy environment. Register for the July 6 panel here.

More News:

• Virtual Office Hours Recap – You’ve Been Awarded an NSF Grant, Now What? – DEBrief

ESA Correspondence to Policymakers

• ESC – FY2023 Department of Energy Office of Science Appropriations Statement (June 14, 2022)
• ESA – Testimony in Support of FY 2023 Appropriations for Forest Service Research and Development (June 10, 2022)
• Multiorganization Letter in Support of FY 2023 Appropriations for the DOE Foundation (identical letters sent to both the House and Senate) (May 20, 2022)
• Multiorganization Letter about Appropriations for USDA Agricultural Research and Climate (May 11, 2022)
• Multiorganization Letter in Support of FY 2023 302(b) Allocation for Commerce, Science and Justice Appropriations (May 11, 2022)
• ESA – Letter to the Forest Service about Managed Wildland Fire (May 3, 2022)
• Multiorganization Letter in Support of Appropriations to the Agricultural Research Service (April 25, 2022)
• CNSF – FY 2023 Appropriations Letter (identical letters sent to both the House and Senate) (April 7, 2022)
• Multiorganization Letter in support of appropriations for EPA Science and Technology and Science to Achieve Results program (identical letters sent to both the House and Senate) (April 4, 2022)

View more letters and testimony from ESA here.

Federal Register Opportunites

Upcoming Public Meetings:

• BLM – Public Meetings of the Idaho Resource Advisory Council and the Proposed Lava Ridge Wind Energy Project Subcommittee (July 7)
• BLM – Grand Staircase-Escalante National Monument Advisory Committee Meeting (July 1)
• Bureau of Reclamation – Colorado River Basin Salinity Control Advisory Council Meeting (July 7)
• Department of Energy – Advanced Scientific Computing Advisory Committee Meeting (July 21)
• EPA – Chartered Science Advisory Board Meeting (July 18)
• HHS – Tick-Borne Disease Working Group Meeting (July 19-20)
• Forest Service – Northeast Oregon Forests Resource Advisory Committee Meeting (July 11)
• Forest Service – Trinity County Resource Advisory Committee Meeting (July 11, July 25)
• Forest Service – Huron-Manistee Resource Advisory Committee Meeting (July 12)
• Forest Service – El Dorado County Resource Advisory Committee Meeting (July 6)
• Forest Service – Shasta Resource Advisory Committee Meeting (July 20)
• Forest Service – Rural Nevada Resource Advisory Committee Meeting (July 21)
• NOAA – Public Meeting of the Ocean Exploration Advisory Board (July 6-7)
• NOAA – Sanctuary System Business Advisory Council Meeting (July 28)
• NOAA NMFS – Gulf of Mexico Fishery Management Council Meeting (July 7)
• NSF – Advisory Committee for International Science and Engineering Meeting (July 11)
• NSF – National Artificial Intelligence Research Resource Task Force Meeting (July 25)

Opportunities for Public Comment and Nominations:

• Department of Energy – Notice of Availability for the Draft Supplemental Environmental Impact Statement for the Alaska LNG Project. DOE invites the public to comment on the Draft SEIS during the 45-day public comment period, which begins on July 1, 2022, and ends on August 15, 2022.
• EPA – Proposed Determination To Prohibit and Restrict the Use of Certain Waters Within Defined Areas as Disposal Sites; Pebble Deposit Area, Southwest Alaska. Submit comments on the proposed determination on or before July 5, 2022. 
• EPA – Draft Human Health and/or Ecological Risk Assessments for Pesticides; Notice of Availability. Comments must be received on or before July 5, 2022.
• Forest Service – Request for Information (RFI) Regarding Wildfire Crisis Implementation Plan. Comments must be received in writing by July 6, 2022.
• Forest Service – Superior National Forest; Minnesota; Rainy River Withdrawal Environmental Assessment. Comments concerning the environmental assessment must be received by July 28, 2022.
• NOAA NMFS – Nominations for U.S. Commissioners to Regional Fisheries Management Organizations. Nominations and any supporting documentation must be received by July 8, 2022.
• NOAA NMFS – Notice of Availability of an Interim Report on Post-Delisting Monitoring of Nine Distinct Population Segments of Humpback Whales and Notice of Intent To Prepare a Recovery Plan for the Central America, Mexico, and Western North Pacific Distinct Population Segments of Humpback Whales. USFWS must receive information no later than July 11, 2022.
• NOAA NMFS – Notice of Intent To Prepare a Programmatic Environmental Impact Statement for Identification of One or More Aquaculture Opportunity Area(s) in Southern California. All comments must be received by 8:59 p.m. Pacific Standard Time (PST) July 22, 2022.
• NOAA NMFS – NOAA Fisheries Draft Climate Science Regional Action Plans (2022-2024). Comments on the Draft Climate Science Regional Action Plans must be received by July 29, 2022 (comment period extended).
• NRCS – Notice of Intent To Prepare an Environmental Impact Statement for the Central Oregon Irrigation District Pilot Butte Canal Infrastructure Modernization Project, Deschutes County, Oregon. NRCS will consider comments that receive by July 18, 2022.
• USFWS – Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for the Silverspot Butterfly. USFWS will accept comments received or postmarked on or before July 5, 2022.
• USFWS – Notice of Intent To Prepare an Environmental Impact Statement for the Kauai Island Utility Cooperative Habitat Conservation Plan, Kauai, HI. Comments submitted online at https://www.regulations.gov/​ must be received by 11:59 p.m. Eastern Time on July 8, 2022.
• USFWS – Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Status Reviews for 167 Species in Oregon, Washington, Idaho, Montana, California, Hawaii, Guam, and the Northern Mariana Islands, USFWS is requesting submission of new information no later than July 11, 2022.
• USFWS – Programmatic Safe Harbor Agreement for the Northern Spotted Owl, Mendocino County, California. USFWS must receive written comments by 5 p.m. on July 11, 2022.
• USFWS – Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Status Reviews for 35 Southeastern Species. USFWS must receive comments or information on or before July 12, 2022.
• USFWS – Migratory Bird Hunting; Proposed Migratory Bird Hunting Regulations on Certain Federal Indian Reservations and Ceded Lands for the 2022-23 Season.USFWS must submit comments on the proposed regulations by July 14, 2022.
• USFWS – Port Blakely Company; John Franklin Eddy Forestlands Habitat Conservation Plan and Environmental Assessment; Receipt of Incidental Take Permit Application. Written comments must be received by no later than 5 p.m. Pacific Standard Time on July 14, 2022.
• USFWS – Maricopa Sun Solar Complex Habitat Conservation Plan, Kern County, California; Environmental Assessment. USFWS must receive written comments on or before July 21, 2022.
• USFWS – Endangered Species Status for Russian, Ship, Persian, and Stellate Sturgeon. USFWS will accept comments received or postmarked on or before July 25, 2022.
• White House OSTP – Call for Public Comment on the Draft U.S. Global Change Research Program (USGCRP) Decadal Strategic Plan, 2022-2031. Interested persons and organizations are invited to submit comments before 11:59 p.m. ET, 15 July 2022.

Visit this page on ESA’s website for updates on opportunities from the Federal Register, including upcoming meetings and regulations open for public comment. 

ESA’s policy activities work to infuse ecological knowledge into national policy decisions through activities such as policy statements, Capitol Hill briefings, Congressional Visits Days, and coalition involvement. Policy News Updates are bi-monthly summaries of major environmental and science policy news. They are produced by the Public Affairs Office of the Ecological Society of America.

Send questions or comments to Alison Mize, director of public affairs, Alison@nullesa.org or Nicole Zimmerman, public affairs manager, Nicole@nullesa.org

Visit the ESA website to learn more about our activities and membership.