WAGLAC News & Updates
April 15, 2019
WAGLAC NEWS
UPCOMING MEETINGS
In order to optimize the opportunity for state coordination on environmental, natural resource and Indian law issues, the WAGLAC summer meeting will be a stand-alone meeting rather than as part of the CWAG Summer meeting. The stand-alone WAGLAC summer meeting will expand from a half day to two full days and we are excited to have you all at our upcoming WAGLAC meeting!
WAGLAC Meeting
June 24 - 25, 2019
Double Tree by Hilton
Park City, Utah

WAGLAC (Western Attorneys General Litigation Action Committee) meets three-times a year to discuss current litigation and issues facing Western States. The WAGLAC meeting will be held on June 24-25, 2019 at The Doubletree by Hilton Park City. 

In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on public lands issues. Please fill out and return the form below or email CWAG Legal Director Clive Strong at Cstrong@cwagweb.org. Please email to Clive any items you wanted distributed at the meeting.
ENVIRONMENT
President Trump Seeks to Expedite Oil and Gas Pipeline Construction
 
On April 10th the President signed two executives orders to make it easier for companies to construct oil and gas pipeline projects and to limit state power to block them. 
 
Executive Order on Promoting Energy Infrastructure and Economic Growth

This Executive Order directs federal agencies to streamline the permitting process for oil and gas pipelines. Section 3 directs EPA to review its Clean Water Act Section 401 “regulations and guidance to determine whether any provisions . . . should be clarified to be consistent with the policies described in the [Executive Order]." EPA is specifically directed to review the “existing guidance entitled, ‘ Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and Tribes.' (Interim guidance).The review is to “focus on: (i) the need to promote timely Federal-state cooperation and collaboration; (ii) the appropriate scope of water quality reviews; (iii) types of conditions that may be appropriate to include in a certification; (iv) expectations for reasonable review times for various types of certification request; and (v) the nature and scope of information States and authorized tribes may need in order to substantively act on a certification request within a prescribed period of time.” 
 
While EPA is directed to consult with States and tribes, it is required to issue new guidance to States and authorized tribes that supersedes the Interim Guidance within 60 days of the date of the Executive Order. No later than 120 days after the date of the order, EPA is required to “publish for notice and comment proposed [Section 401] rules,” and to finalize the rules within 13 months of the date of the executive order. Each agency that issues permits or licenses subject to Section 401 is required to ensure its regulations are consistent with EPA’s regulations and guidance.

Administrator Wheeler said the focus of EPA’s efforts will be on “clarifying” the timelines and scope of state water quality certification review. The Handbook not the regulations address the timelines and scope of state review. (Handbook is attached). Since the Handbook is guidance, it will be final when issued.  

EPA will be hosting a one-hour webinar on April 17 with states and tribes to discuss CWA Sec. 401 and present a summary of the feedback the agency has received thus far and to provide an opportunity for input. Please visit:  https://www.epa.gov/cwa-401
 
This Executive Order also directs the Department of Transportation to update safety regulations for Liquefied Natural Gas. And the Departments of Interior, Agriculture and Commerce are directed to develop a master agreement for energy infrastructure rights-of-way renewals or reauthorization within 1 year of the date of the order.
 
Order On The Issuance Of Permits With Respect To Facilities And Land Transportation Crossings At The International Boundaries Of The United States

This Executive Order “revises the process for the development and issuance of Presidential permits covering the construction, connection, operation, and maintenance of certain facilities and land transportation crossings at the international boundaries of the United States.” The Secretary of State is directed to adopt procedures to ensure that all actions for approval of a permit are completed within 60 days of the receipt of an application. Further, the Secretary of State is placed in charge of processing applications and recommending to the President whether the proposed pipeline will serve the foreign policy interests of the United States. The President retains sole authority to issue, deny, or amend a permit.
States Express Concerns Over Section 401 Executive Order Proposed Revisions
National Governor's Association and National Conference State Legislators
April 11, 2019

"In response to President Trump signing the Executive Order on Promoting Energy Infrastructure and Economic Growth, the National Governors Association and National Conference of State Legislatures released the following statement:

“Governors and state legislatures are concerned by Sec. 3 of the recent ‘Promoting Energy Infrastructure and Economic Growth’ Executive Order, which directs the Environmental Protection Agency (EPA) to begin a process that could result in a significant constraint on a state’s ability to protect its water quality."

The Western Governors have also expressed concerns regarding the impact of the Executive Order (promoting energy, infrastructure and economic growth.)
Barrasso Reintroduces Legislation to Improve Water Quality Certifications
US Senate Committee on Environment and Public Works
April 9, 2019

"U.S. Senator John Barrasso (R-WY), chairman of the Senate Committee on Environment and Public Works (EPW), introduced S.1087, the Water Quality Certification Improvement Act of 2019. The legislation is cosponsored by Senators Steve Daines (R-MT), Jim Inhofe (R-OK), Shelley Moore Capito (R-WV), Mike Enzi (R-WY), and Kevin Cramer (R-ND).

The bill amends section 401 of the Clean Water Act. The legislation makes several key clarifications to existing law about the appropriate scope of review for a water quality certification. It would also place procedural guardrails and requirements on states as they process requests for certification to prevent future abuses."
Judge Stays Lighthouse Case

As reported in the April 8th WAGLAC Newsletter , BNSF’s challenges under the Commerce Clause are still pending in Lighthouse Resources, Inc. v. BNSF Railway Company (aka Millennium Pipeline). On April 11th, District Judge Robert Bryan stayed all further proceedings on the Commerce Clause issue until appellate review of the State Pollution Control Hearings Board’s decisions is completed. Judge Bryan concluded a stay was warranted under the Pullman Abstention doctrine because “a determination of whether the Commerce Clause was violated can be “plainly” avoided, depending on the degree to which Plaintiffs may prevail in the state courts.”
WATER
Water Subcabinet/Infrastructure Special Report
Western States Water Council
April 5, 2019

"On August 3, a “Water Subcabinet,” addressed members of the Western States Water Council (WSWC), Interstate Council on Water Policy (ICWP), National Water Resources Association (NWRA) and National Water Supply Association (NWSA) at a Water Infrastructure Forum in Washington, D.C. The subcabinet officials included: Tim Petty, Assistant Secretary of the Department of the Interior (DOI) for Water and Science; David Ross, Environmental Protection Agency (EPA), Assistant Administrator for Water; Timothy Gaullaudet, Assistant Secretary of Commerce for Oceans and Waters, with responsibility for the National Oceanic and Atmospheric Administration (NOAA); William Northey, Under Secretary for Farm Production Conservation, U.S. Department of Agriculture (USDA); R.D. James, Assistant Secretary of the Army for Civil Works; and Alex Fitzsimmons, Chief of Staff, Daniel Simmons, Department of Energy (DOE), Assistant Secretary, Office of Energy Efficiency and Renewable Energy."
Congress Zips Into Action, Quickly Approving Long-Sought CO River DCP Authorization Act
Arizona Department of Water Resources
April 12, 2019

"The proposal to take federal action on behalf of the troubled Colorado River system morphed seemingly overnight into a legislative IndyCar powered by an astonishing level of bipartisan support.

Passed by Congress on April 8, the Colorado River Drought Contingency Plan Authorization Act enjoyed the support of all 14 of the Colorado River Basin States senators, and was approved by acclimation by both houses.

The Act formally authorized the Secretary of the Interior to execute and carry out multiple agreements in relation to the Colorado River Drought Contingency Plan crafted by the Seven Basin States."
FEDERALISM
California, Oregon and Minnesota Challenge 2 For 1 Executive Order
 
California, Oregon, and Minnesota brought an action for declaratory and injunctive relief to challenge Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs,” hereinafter Order), dated January 30, 2017. The complaint asserts the President exceeded his constitutional authority, violated the separation of powers doctrine, the President’s duty under the “Take Care” clause, and are generally ultra vires. The complaint also asserts that OMB in issuing guidance to implement the Order violated the Administrative Procedure Act.
COMINGS AND GOINGS
David Bernhardt Confirmed As New Interior Chief
The Hill
April 11, 2019

"Congress confirmed David Bernhardt as Interior secretary on Thursday, adding his name to a list of Trump Cabinet officials with lobbying ties.

Manchin, the top Democrat of the Senate committee that oversees Interior, welcomed Bernhardt's confirmation Thursday, saying he was more than qualified for the job

"I believe Mr. Bernhardt is clearly qualified to serve as secretary," Manchin said during a floor speech. "He knows the Interior Department inside and out and he is well versed on all the issues that come before it. He clearly has the knowledge and experiences to serve as secretary."
INDIAN LAW SUMMARY UPDATES
Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. 
Recent Indian Law Case Summaries
Please check back next week for more updates.
All summaries are posted in CWAG's google docs acc ount, accessible through the link below. Should you have any issues with the links, contact Andrea Friedman with any questions.
INDIAN LAW DESKBOOK
Updated  American Indian Law Deskbook  Is Now Available

The  American Indian Law Deskbook is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook addresses the areas of Indian law most relevant to the practitioner.
Topics include:
  • Definitions of Indians and Indian tribes
  • Indian lands
  • Criminal, civil regulatory, and civil adjudicatory jurisdiction
  • Civil rights
  • Indian water rights
  • Fish and wildlife
  • Environmental regulation
  • Taxation
  • Gaming
  • Indian Child Welfare Act and tribal-state cooperative agreements
WAGLAC
CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 30 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.
CWAG | CLIVE.STRONG@CWAGWEB.ORG | (208) 850-7792 | WWW.CWAGWEB.ORG
Contributions For WAGLAC Newsletter

We rely on our readers to send us links for the WAGLAC Newsletter. If you have or know of a recent (published in the last two weeks) case, statute or article relating to natural resources, environment, Indian law or federalism that you would like us to consider for inclusion in the Newsletter, please send it to clive.strong@cwagweb.org. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.