Category Archives: Legislation

SELC Comments on FWS Proposal to Eliminate Bird Protections

The U.S. Fish and Wildlife Service (FWS) has proposed to largely eliminate protections against incidental take under the Migratory Bird Treaty Act (“MBTA”). The proposed rule would limit the reach of the MBTA’s take prohibitions to activities with the purpose of taking birds. For example, if a power washer cleaning a bridge destroyed bird nests or otherwise harmed migratory birds, that would be permissible so long as the power washer’s purpose was cleaning the bridge rather than harming the birds.

On March 19, 2020, the Southern Environmental Law Center, on behalf of over 50 organizations (inluding Friends of Nelson), submitted comments with a focus on the proposal’s implications for our Southeastern region. Their comments highlight examples in our region where the MBTA’s incidental take prohibitions have played an important role in conserving migratory birds, while also noting some key Southeastern species.

The letter argues that:

  1. The Proposed Regulation Governing Take of Migratory Birds Is Arbitrary and Capricious and Contrary to Law
    • The Interpretation in the Proposed Rule Is Not Supported by the Statute
    • The Interpretation in the Proposed Rule Is Not Supported by Treaties Relating to the MBTA
    • Proximate Cause Limits the Reach of Strict Liability Under the MBTA
  2. FWS’s Scoping Notice Previews an Environmental Analysis That Shortcuts the Agency’s Obligations Under NEPA
    • The Notice Fails to Forthrightly Disclose the Major Federal Action Properly Subject to Analysis Under NEPA and Forecasts a Predetermined Outcome
    • The Agency Should Reset the Analysis of Alternatives
  3. Excluding Incidental Takes Will Have Significant Effects on Protected Migratory Birds That Must Be Analyzed Under NEPA
    • Specific Projects That Compel Protections for Migratory Birds Due to Foreseeable Impacts (Atlantic Coast Pipeline, Mountain Valley Pipeline, Hampton Roads, Wind Energy Development, Atlantic Pelagic Longline Fisheries, Cape Hatteras National Seashore and Off-Road Vehicles)
    • FWS Must Assess Impacts to Species Particularly Vulnerable to Incidental Takes
    • FWS Must Analyze the Loss of Ecosystem Services and Economic Benefits of Birds in the Southeast
    • FWS Must Consider the Consequences of its Rulemaking in the Context of Climate Change

The SELC letter concludes, “Reversing course on decades of protections under the MBTA has already caused, and will continue to cause, impacts of significant consequence to migratory birds across the Southeast and the United States. Migratory birds are in steep decline from multiple stressors; many are already at risk of extirpation and face an uphill road to recovery, even with protections against incidental take in place under the MBTA. FWS’s proposed rulemaking will hasten the decline of migratory birds and cannot be squared with the broad protections afforded by the MBTA. Rather than continue with this rulemaking, we urge Interior to withdraw the proposed rule, rescind Opinion M-37050, and work instead on developing an appropriate regulatory program addressing the foreseeable incidental killing and taking of migratory birds.”

Read the full letter here.

Report on Natural Gas Act Hearing


Fellow pipeline fighter Irene Leech attended the House Energy and Commerce Committee hearing on the Natural Gas Act hearing on February 5, 2020. With her permission, we are sharing her notes on her experience. Thank you, Irene!

I was at the hearing. I sent my comments to the record. My Montgomery Congressman, Morgan Griffith, is on the committee. He used his first 5 minutes to enter my statement into the record and to tell them I was there – affected by both pipelines. He told the industry that his constituents did not verify the good working relationship they claimed. He also told them FERC ignored the request by a group of Virginia federal elected officials for at least one more hearing. They also refused to consider the combined effect of the MVP and ACP. Griffith and Kaine have introduced similar bills that address a little of what we care about.

LaFleur did a masterful job of directly laying out the problems. She spoke only for herself. She was extremely tactful describing those opposed to her positions as genuinely viewing things differently but made clear change is needed.

Maury Johnson from WVA was invited and uninvited to speak as a landowner. There were three other affected landowners from the MVP there. I believe I was the only one from the ACP. Griffith clearly described my impact from the ACP. When Maury spoke to former chairman LaFleur she already knew we were there as landowners.

Griffith entered Karolyn Givens comments into the record with the second panel and asked the industry what can be done to incentivize industry to genuinely work with landowners – at my suggestion. The question was essentially ignored.

Hearing planners decided to displace landowners but we were there early to ensure seats (arriving around 7; at 9am we were told sitting in line outside the meeting room, not blocking any door, was considered protesting and we had to stand if we wanted to stay. They let us in at 9:50). We made sure the committee knew we were present. We shook our heads no when false things were said. We had scarves that said FERC doesn’t work but did not show them once the meeting was underway, being told that would get us thrown out – but folks saw them and pictures are on Facebook and Twitter. We also talked with staff after the hearing so we have their contact info and they have ours.

I think we made good use of our day. I did not widely share my comments but will get a copy to you. The ACP and MVP were referenced several times to point out problems with the Natural Gas Act.

We got things on the record – started the process to create change. I’m bummed we didn’t make the news – but they had a vaping hearing simultaneously along with a briefing on the coronavirus – plus State of the Union and impeachment.

P.S. Congressman Riggleman’s statement was announced as being put on the record but I have not seen/heard it.

[Note: Congressman Denver Riggleman’s statement is here.]

Trump Weakens the Nation’s Clean Water Efforts

Writing in the New York Times on February 10, 2020, Chris Wood, Collin O’Mara, and Dale Hall discuss the presidents “deeply misguided” decision to roll back water protections. Wood is president of Trout Unlimited, O’Mara is president of the National Wildlife Federation, and Hall was director the United States Fish and Wildlife Service.

They write, “The Environmental Protection Agency made a startling admission last month when it announced that many of the nation’s streams and wetlands would no longer be protected under the Clean Water Act, perhaps the nation’s most successful antipollution law. The agency said it could not predict how many miles of streams and acres of wetlands would lose their protection because of ‘existing data and mapping limitations.’ In other words, the E.P.A. was sharply narrowing the reach of a landmark environmental law without understanding the consequences of its actions.”

They state “unequivocally that this ill-informed policy will reduce water protections to a level not seen in more than a generation.”

The authors did what EPA apparently did not do, and used best mapping resources to find out what would no longer be protected. They say, “Trout Unlimited’s research suggests that more than six million miles of streams — half the total in the United States — will now be unprotected by the Clean Water Act, because they flow only after rainfall. More than 42 million acres of wetlands — again, about half the country’s total — will no longer be protected because they are not immediately adjacent to larger waters.”

Under the new laws, for example:

  • In Arizona, 88% of streams and 99% of lakes will lose protection, meaning “98 percent of the permits that limit pollution discharges into waterways will simply no longer be in force.”
  • In New Mexico, invalidated permits will no longer control the levels of mercury and PCBs running off the heavily contaminated grounds of Los Alamos National Laboratory
  • “In West Virginia and Virginia, there will no longer be federal protections for some 82 small streams that are to be excavated if the 600-mile Atlantic Coast Pipeline is built, based on surveys by Dominion”

Wood, O’Mara, and Hall conclude, “You need only consider the name to recognize what’s happening here. What was the Waters of the United States Rule is now the Navigable Waters Protection Rule. This signals a narrow concern only for commerce but not, illogically, for the network of tributaries and wetlands that keep navigable waters healthy. It also completely misses the point of the Clean Water Act, which is to protect the health of all the nation’s waters.”

Landowner Comments for Congressional Hearing


The House Energy and Commerce Committee hearing on the Natural Gas Act was held on Wednesday February 5, 2020. Included in the hearing was discussion on H.R.5454 – Fairness for Landowners Facing Eminent Domain Act.

Richard Averitt, on behalf of himself and 25 other ACP-impacted Nelson County landowners, submitted a powerful and impassioned letter to be entered into the record for hearing. In his covering letter, Averitt stated, “It is of critical importance that the voice and perspective of landowners affected by the current implementation of the Natural Gas Act be part of the record and a stakeholder to the process of reforming the NGA.”

His letter begins, “I write to you on behalf of Landowners in Nelson County, Virginia who are suffering greatly from gross abuse and misuse of the Natural Gas Act by a FERC that repeatedly slants every decision and ruling in favor of any new energy project regardless of the need, cost or environmental impacts.

“We are outraged citizens who have spent nearly six years fighting for our most basic and fundamental rights to due process and property in a country founded on these sacrosanct principles. Moreover, while our specific experience relates to the Atlantic Coast Pipeline (ACP), our grievances are representative of injustices perpetrated against thousands of families across the country at this very moment along dozens of new pipelines routes. We are the victims of a broken system, a truly feckless FERC, an energy economy that is wildly incentivized to build infrastructure at any cost, and the outrageous lie that the public need for gas is driven by domestic demand while our nation races to be the largest global exporter.”

He asks that “there be more thoughtful and detailed discussion allowing for adequate citizen comment to identify the right changes moving forward,” and notes that while there are many issues worth discussing, “There are at least five key issues which must be resolved in order to protect citizens’ basic rights to property and due process in the courts and to re-balance the NGA.”

Averitt continues by discussing in detail:

  1. Issues of Notice and Intervention
  2. Defining the metrics for determining NEED
  3. Tolling orders must be eliminated
  4. Conditional Permits must be eliminated
  5. Eminent Domain reform – eliminate Quick Take

He concludes, “In summary, while there are many details beyond these five core reforms, these changes to the NGA and the FERC process represent the bare minimum Congress must do in order to restore a semblance of fairness and balance to the process and ensure the most basic and primary protections to a citizen’s guaranteed right to due process and property are preserved.”

Read the full letter here.

Many thanks to Richard for so eloquently and articulately giving voice to landowners most impacted by the reforms in question!

Information on hearing is here, including the Committee Memorandum, witness list, testimony and a live webcast.

In opening remarks at the hearing, Congressman Frank Pallone (D-NJ), Chairman of the full committee, said that the Federal Energy Regulatory Commission (FERC) “must take a more holistic view of the pipeline infrastructure already serving particular regions in order to determine whether new infrastructure is truly needed.” He continued, “I am concerned FERC is simply approving duplicative pipelines, with 60-year lifespans, under the guise of ‘market need’ even when those pipelines are not really necessary. The Atlantic Coast and Mountain Valley pipeline projects clearly illustrate the need for regional review. Both pipelines cross roughly the same areas in the mid-Atlantic region and, in some instances, impact the same communities and landowners. Why do we need that duplication? And while work on both pipes has been halted, much of the land damage has already been done because FERC allowed these duplicative projects to begin construction.”

Support Virginia’s HB 167


Please ask your delegate to support HB 167. The bill would require electric utilities who want to expand their capacity to deliver fuel and then recover the costs from their customers to prove that: 1) additional capacity is needed, 2) both the amount of additional supply and its delivery date are clearly identified, 3) alternatives have been objectively studied, and 4) the new source is the least expensive option. If HB 167 were to become law, it would cut down on the number of costly, dangerous and unnecessary pipeline projects like the Atlantic Coast and Mountain Valley pipelines.

Click here for detailed information on the bill and to follow its progress.

Click here to find your legislators and their contact information.

In addition to contacting your own legislators, the League of Conservation Voters suggests it would be useful to contact the following key legislators and tell them you support HB167:

Congressional Hearing on Natural Gas Act


The House Energy and Commerce Committee will hold a hearing on the Natural Gas Act on Wednesday February 5, 2020.  Included in the hearing will be discussion on H.R.5454 – Fairness for Landowners Facing Eminent Domain Act. The hearing is open to the public on Wednesday, February 5, at 10 am in room 2322 of the Rayburn House Office Building. The hearing is entitled, “Modernizing the Natural Gas Act to Ensure it Works for Everyone.”

The House Committee’s press release, with information on the hearing, is here.  Information for this hearing, including the Committee Memorandum, witness list, testimony and a live webcast will be posted here as they become available.

H.R.5454 – Fairness for Landowners Facing Eminent Domain Act that is being referenced in the hearing is here.

A press release from the Fairness for Landowners bill’s sponsor, NJ Representative Tom Malinowski, is here.