The Conservation Column
By Pepper Trail

Happy February! Happy, happy February! Beginning with this month’s Conservation Column, I look forward to hav-ing a lot more (well…any) good news to share than I have for the past four years.
For a while, though, the good news will consist mostly of reversal of some of the worst environmental actions of the Trump Administration. Those are tremendously important, but will just get us back to where we were at the end of the Obama Administration. Our long-term goal must be to advocate for truly enhanced protections for endangered species and wildlife habitats. Fortunately, it is now possible to imagine that increased protections could actually happen.

Biden Administration Environmental Reviews
On Inauguration Day, the Biden Administration released a list of over 100 Trump-era executive orders under scrutiny, directing federal agencies to reverse, review or revoke any environmental policies that are “harmful to public health, damaging to the environment, unsupported by the best available science, or otherwise not in the national interest.” These Trump Administration’s rule gutting the Migratory Bird Treaty Act—the most effective bird conservation policy in our nation’s include:

  • Review of the history:
  • A temporary halt to oil and gas development in the Arctic National Wildlife Refuge, one of America’s most important bird nurseries. This immediate action is critical as lease sales began this month;
  • Review of the Trump Administration’s opening of the Tongass National Forest, the world’s largest intact temperate rainforest, to logging and other development
  • Revisiting controversial endangered-species listing and delisting decisions, including those for monarch butter-flies, gray wolves, Greater Sage Grouse, and Northern Spotted Owls
  • Examining the very last-minute (January 15) removal of almost 3.5 million acres public forestland in Oregon, Washington, and California from protections as designated critical habitat for the Northern Spotted Owl. This outrageous decision is described in more detail below.
  • Rejoining the Paris Climate Agreement, an important global accord to reduce greenhouse gas emissions, and cancelling the Keystone XL oil pipeline.

Elimination of Northern Spotted Owl Critical Habitat
In December, the U.S. Fish and Wildlife Service determined that the Northern Spotted Owl meets the definition of an endangered species, a more serious status than its current “threatened” listing. The bird has lost more than 70 percent of its population since the FWS listed it as threatened in 1990. It faces a real threat of extinction.
Nonetheless, the agency said it would not elevate the bird’s listing to endangered because doing so “is precluded by higher priority actions.” That decision angered conservation groups, who accused the FWS of shirking its duty. (At the same time, FWS also made a “justified-but-precluded” decision relating to the monarch butterfly, declining to list that species despite declines of over 80% in the eastern U.S. and virtual collapse of western populations).
On January 15, five days before President Biden’s inauguration, the Trump Administration compounded its attack on Spotted Owls with a final rule that removes nearly 3.5 million acres from the Northern Spotted Owl’s designated critical habitat: areas determined to be essential for a species to recover. This was a dramatic expansion of a much more modest 200,000-acre cut proposed in August—a change made at the discretion of Interior Secretary David Bernhardt with no chance for the public to comment.
“The owl should be endangered because it’s in danger of going extinct in the near term, and yet we have this deci-sion from the Fish and Wildlife Service, driven by political appointees, that says: Nope, we’re gonna get rid of protected habitat,” says Susan Jane Brown, a staff attorney for the Western Environmental Law Center. “It’s really heartbreaking, frankly. This kind of callous action is just offensive.”
Endangered Species Act expert Patrick Parenteau, a Vermont Law School professor, said in an email, “I’ve never seen that dramatic a cut in critical habitat and never for a species that warrants up listing from threatened to endangered.”
Habitat loss driven primarily by timber harvesting led to the Northern Spotted Owl’s “threatened” listing and put it at the center of intense fights in the 1990s that pitted loggers against environmentalists in the Pacific Northwest and led to the adoption of the Northwest Forest Plan. Today the bird faces additional threats from increasingly devastating wildfires in its forest habitat and competition from Barred Owls, an eastern species that has expanded its range into the Northern Spotted Owl’s home turf. Safeguarding its habitat is vital to helping it evade and survive these threats, experts say.
Timber companies, chafing at restrictions on logging, have repeatedly challenged critical habitat designations for the owl, including a 2012 rule that set aside 9.5 million acres of forest. That lawsuit remained tied up in the courts until last April, when the FWS reached a settlement with the American Forest Resource Council, a timber industry lobbying group, requiring it to re-evaluate designated habitat.
The outcome of that process was a FWS proposal in August to remove some 200,000 acres of critical habitat in Oregon. But timber companies said the proposal didn’t go far enough. In formal comments on the plan, the American Forest Resource Council argued that the FWS should remove a total of 2.7 million acres.
The new rule goes further still, stripping more than one-third of the Northern Spotted Owl’s critical habitat in California, Oregon, and Washington. Brown says she’s heard from multiple contacts in federal agencies that the increase from 200,000 acres to 3.5 million acres came at the direction of Bernhardt and another Interior official, who “put the screws” to agency staff to give timber companies greater access. She says government biologists have described to her the reduction in protected habitat as an “extinction action” for the bird.
The FWS declined to answer questions about concerns that the new rule could push the Northern Spotted Owl toward extinction and instead sent Audubon a statement from FWS Director Aurelia Skipwith: “The Trump Administration and the Service are committed to recovering all imperiled species, and the northern spotted owl is no exception. These commonsense revisions ensure we are continuing to recover the northern spotted owl while being a good neighbor to rural communities within the critical habitat.”
To explain the more than 15-fold increase in removed acreage, the rule refers to the Interior secretary’s authority, via the Endangered Species Act, to exclude areas from critical habitat if the benefits of doing so outweigh the benefits of including it. But that discretion has limits; the law prohibits exclusions if they will cause the extinction of a species and requires that they be rooted in the best available science.
“This decision blows past those limits like few decisions I have seen from this administration, which is saying something,” Brown says. “Saying, ‘I have the discretion to push it into extinction’ does not pass the laugh test.”
Brown says she doesn’t see how a judge would allow such a sweeping action by the secretary without public comment, and her group will sue to reverse it. The incoming Biden administration is also likely to scrap the rule since it doesn’t take effect for 60 days, she says. Still, doing so will require the FWS to write a replacement rule, which takes time—something of which the Northern Spotted Owl has little to spare.

Finally, to close on a positive note, there was some very good news close to home:
Federal Energy Regulatory Commission Upholds Oregon’s Denial of Key Jordan Cove LNG Permit
On January 19, the Federal Energy Regulatory Commission (FERC) upheld the Oregon Department of Environ-mental Quality’s denial of a key permit for the proposed Jordan Cove LNG export terminal and Pacific Connector fracked gas pipeline. The pipeline would carry fracked natural gas 229 miles from Malin, Oregon, to Coos Bay, impacting hundreds of rivers, streams, and wetlands. The Jordan Cove LNG project cannot move forward without a Clean Water Act approval from the state of Oregon.
This is the latest in a series of regulatory losses for Jordan Cove LNG, representing a huge blow to the 15-year-old proposal that has been vehemently opposed by tribes, impacted landowners, fishermen, climate advocates, and others. The project has also not qualified for other critical state, federal, and local permits needed to move forward.
In its summary of today’s meeting, FERC wrote: “The order finds that Jordan Cove and Pacific Connector never requested certification with respect to the Commission authorizations for the Jordan Cove Energy Project and that the Oregon Department of Environmental Quality could not have waived its authority to issue certification for a re-quest it never received.”
“Today’s unanimous FERC decision shows that when our communities come together and speak out, we win! Thousands of southern Oregonians have raised their voices to stop this project for years and will continue to until the threat of Jordan Cove LNG is gone for good,” said Hannah Sohl, executive director of Rogue Climate.
“Today’s decision is a huge win for clean water and healthy communities who’ve been fighting this harmful project for nearly 15 years,” said Robyn Janssen, director of Rogue Riverkeeper. “FERC’s decision to uphold Oregon’s 401 denial gives me hope that this is the end for Jordan Cove LNG.”
There are plenty of challenges ahead, but I sure feel like a weight has been lifted – don’t you?