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"Public scrutiny is especially important because the activities at issue here, by their very nature, result in the production of dangerous weapons and extensive amounts of toxic and radioactive waste," a plaintiffs' lawyer said.
In what advocates called a major win for frontline communities and the rule of law, a U.S. district court judge ruled on Monday that the federal government could not move forward with producing plutonium pits—"the heart and trigger of a nuclear bomb"—at two proposed sites in New Mexico and South Carolina.
Instead, Judge Mary Geiger Lewis agreed with a coalition of nonprofit community groups that the Department of Energy (DOE) and the National Nuclear Security Administration (NNSA) violated the National Environmental Policy Act (NEPA) by failing to fully consider alternatives to producing the pits at New Mexico's Los Alamos National Laboratory and South Carolina's Savannah River Site (SRS). Now, the federal government must conduct a full environmental impact statement of how pit production would work at sites across the U.S.
"This is a significant victory that will ensure NEPA's goal of public participation is satisfied," attorney for the plaintiffs Ben Cunningham, of the South Carolina Environmental Law Project, said in a statement. "Public scrutiny is especially important because the activities at issue here, by their very nature, result in the production of dangerous weapons and extensive amounts of toxic and radioactive waste. I hope the public will seize the upcoming opportunity to review and comment on the federal agencies' assessment."
"This is a victory for public transparency, and hopefully will result in alternative proposals that are more protective of the environment and affected communities around these sites."
Making plutonium pits means working with "extremely hazardous and radioactive materials," Nuclear Watch New Mexico, one of the groups behind the suit, pointed out. As of 2018, the government had planned to produce at least 80 pits a year by 2030—30 or more in New Mexico and 50 or more in South Carolina.
Yet these pits are not intended to maintain the United States' existing nuclear weapons stockpile. Instead, they would be for future, experimental weapons that could not even be tested without violating the Nuclear Test-Ban Treaty. What's more, making the pits would cost U.S. taxpayers over $60 billion over the next three decades, and the Government Accountability Office (GAO) found that the NNSA has not made reliable cost estimates for production at the two proposed sites.
"The DOE and NNSA have been on the GAO's 'High Risk List' for project mismanagement and cost overruns for more than 30 years," said Jay Coghlan, the executive director of Nuclear Watch New Mexico. "Nevertheless, these agencies think they can proceed with their most expensive and complex project ever without required public analyses and credible cost estimates."
Coghlan continued: "Public scrutiny and formal comment under the National Environmental Policy Act have proven time and again to improve public safety and save taxpayers' money. A nationwide programmatic environmental impact statement [PEIS] on expanded plutonium pit production will hold DOE and NNSA accountable for just that."
It will also give local communities a chance to have a say in potentially dangerous projects being implemented near their homes. The plaintiffs were composed mostly of frontline groups: Savannah River Site Watch, Nuclear Watch New Mexico, Tri-Valley Communities Against a Radioactive Environment (CAREs), and the Gullah/Geechee Sea Island Coalition.
"Native Gullah/Geechees, including the Gullah/Geechee Fishing Association and Gullah/Geechee Sea Island Coalition members, rely on safe and healthy water in order to sustain ourselves and our community," said Gullah Geechee Nation Chieftess Queen Quet. "Therefore, it is critical that the public is fully aware of any and all potential negative impacts that projects will have on critical resources such as our water supplies and water bodies."
If the DOE and NNSA's plans had gone ahead, it would have been the first time that plutonium pits were manufactured at the Savannah River Site, at a facility which could cost between $11 and $25 billion to complete. However, Judge Lewis concluded that the agencies had not updated their plans to account for production at two sites at once and must therefore conduct a PEIS considering production at potential sites across the U.S. as well as the handling and disposal of waste.
"In our comments, it was repeatedly stressed that the agency violated the law by failing to take a hard look at alternatives for this 'two-site' plan," said Scott Yundt, executive director of the Livermore, California-based Tri-Valley CAREs. "Additionally, commenters pointed out the lack of inclusion in the environmental review of the other affected sites involved in the plan, chief among them Lawrence Livermore National Laboratory and the Waste Isolation Pilot Plant, where the scope of work and the corresponding impacts was largely left out of the analysis and, again, no alternatives were offered or analyzed as required by NEPA. The judge saw these violations clearly and ordered agencies do the analysis that should have been done at the outset. This is a victory for public transparency, and hopefully will result in alternative proposals that are more protective of the environment and affected communities around these sites."
Tom Clements, who directs Savannah River Site Watch and was also an individual plaintiff in the case, said the ruling was "a notable victory for the main argument in our lawsuit—that the NNSA's NEPA analysis on plutonium pit production was inadequate."
In addition, it provides a reprieve for the project's concerned neighbors.
"The design and construction work on the proposed SRS pit plant should be put on hold until the PEIS has been finalized," Clements said.
Dylan Spaulding, senior scientist at the Union of Concerned Scientists, also applauded the ruling.
"NNSA skirted the rules and now they are being held accountable—this is a victory for transparency," he said.
Spaulding added that he was unsure whether or not this would delay the planned plutonium pit production blitz.
"There are still a lot of environmental hazards and questions that need to be addressed," he said. "We should be pausing and thinking about that before this hugely expensive project goes forward."
This piece has been updated to included comments from Dylan Spaulding of the Union of Concerned Scientists.
Pacific Environment and other green groups filed a legal petition this week asking the Department of the Interior for a new analysis of the climate damage and other harms related to the Trans-Alaska Pipeline System.
Recent technology breakthroughs have unlocked the potential production of many billions of barrels of Alaska’s high viscosity heavy oil, a development not yet accounted for in U.S. climate strategy. Federal intervention is needed now to keep this heavy oil carbon bomb in the ground.
Pacific Environment, alongside other environmental groups, filed a legal petition this week asking the Department of the Interior for a new analysis of the climate damage and other harms related to the Trans-Alaska Pipeline System (TAPS). The petition was filed by the Center for Biological Diversity, Pacific Environment, Sovereign Iñupiat for a Living Arctic, Alaska Community Action on Toxics, Fairbanks Climate Action Coalition, and Public Employees for Environmental Responsibility.
Right now, more than 5 billion barrels of previously unrecoverable Alaska North Slope (ANS) heavy oil appear commercially feasible to produce using polymer flooding technology. For comparison, the sprawling, massive Willow field—development approval of which by the Biden administration last year sparked widespread objection because of the impacts to the climate, communities, and wildlife—is estimated to have 576 million barrels of recoverable oil reserves. The potential and incentive to produce the massive, viscous, and heavy oil accumulation larger than Willow is a huge, dangerous development for the climate.
It’s time for the Department of the Interior to review the nearly 50-year-old aging TAPS infrastructure and put a plan in place to decommission it.
The ANS heavy oil accumulation is enormous—large enough to qualify as a “carbon bomb” (greater than 1 gigaton of CO2 equivalent) with roughly 3 gigatons of CO2 emissions—and is Alaska’s largest prospective oil development. The accumulation contains an estimated 20 to 25 billion barrels, with more than 5 billion now commercially feasible to produce.
Although the international scientific consensus urges a rapid transition away from fossil fuels, Alaska crude oil production is projected to nearly double between 2024 and 2048, according to the U.S. Department of Energy’s (DOE) Energy Information Administration’s Annual Energy Outlook 2023.
The increase in Alaska production is driven by a combination of Willow, Pika, enhanced oil recovery in aging existing oil fields, and new enhanced oil recovery in previously uneconomic viscous and heavy oil formations using new polymer flooding technologies adapted for the Alaska North Slope. In contrast, the entire Lower 48 crude oil production is projected to be flat over the long run, growing by only one-twelfth of 1% (12.29 million barrels per day to 12.30 million b/d) from 2024 to 2048.
The heavy oil accumulation overlays deeper reservoirs on state-owned land in production for decades, including the Prudhoe Bay, Kuparuk River, and Milne Point units. ANS heavy oil, with a consistency ranging from molasses to tar, is extremely carbon intensive and is driving the greenhouse gas emissions intensity of ANS oil upward from already high levels, which have increased by 25% since 2012, according to California Air Resources Board greenhouse gas emissions estimates.
Polymer flooding technology for enhanced oil recovery was field tested and validated at the Milne Point Unit in a DOE-funded, four-year study that concluded in 2022, which dramatically improved the outlook for production of ANS heavy oil. The study was conducted by the University of Alaska, Fairbanks’ petroleum engineering department, with technical support from Hilcorp.
Because of the enormous climate impacts more heavy oil production would unleash, the Biden administration should act now to start a new environmental analysis that will evaluate and lead to implementation of remedial actions addressing climate impacts.
The existing environmental analysis of TAPS, now more than two decades old, fails to examine the climate harms of the extraction and burning of oil moving through the pipeline.
A Supplemental Environmental Impact Statement (EIS) process for TAPS should be initiated immediately to examine existing and potential climate impacts and the effects of using the heavy oil that could be transported through the nearly 50-year-old aging pipeline, among other issues.
During the past 45 years, TAPS has undergone two environmental assessments required by the National Environmental Policy Act (NEPA): the initial pre-construction EIS in 1972 and the Reauthorization EIS in 2002. NEPA requires that an existing EIS must be supplemented whenever there is new information or circumstances relevant to environmental concerns, or if there are significant environmental impacts that were not evaluated.
A lot has changed since 2002—more than 20 years of science have increased understanding of the causes, impacts, and necessary actions to address the climate emergency.The contributions of fossil fuels to greenhouse gas emissions have been irrefutably documented. Global climate change has accelerated with dramatically observable effects including the increase in the frequency and severity of climate disasters and disruptions and storms eroding the rapidly melting Arctic.
The prior EIS assessments did not sufficiently address climate impacts nor the impact TAPS will have as the infrastructure that delivers Alaska’s heavy oil to market.
The 2002 EIS contains this dubious prediction: “Carbon dioxide (CO2) emissions from TAPS would add little to the global CO2 concentration level.”
Neither outdated EIS discussed the fact that the 18.5 billion barrels of crude oil transported through TAPS already has contributed 9 billion metric tons of CO2 equivalent to the global atmosphere, including methane through leaks, venting, and flaring. The stale 2002 pipeline renewal EIS estimates refer only to emissions from the pipeline system itself (the pump stations, generators, etc.) and do not include the 92 million metric tons of CO2 per year currently associated with the crude oil that TAPS transports after it gets refined and burned.
Ironically, the physical stability of TAPS is threatened by thawing permafrost caused by fossil fuel-driven warming. The combination of advanced age and unstable land caused by thawing permafrost potentially jeopardizes the integrity of the pipeline and substantially increases environmental risk, including the increased potential for leaks and spills.
Under the current authorization the TAPS EIS will be reviewed again in 2032; however, changing circumstances and new information require that the Biden administration immediately reevaluate the TAPS authorization by initiating a Supplemental EIS process. New information since 2002 includes the commercialization of heavy oil and the listing of species as endangered including polar bears and ringed and bearded seals.
As the Trans Alaska Pipeline System approaches the end of its life, climate change is impacting Alaska and the Arctic region significantly. Alaska is warming faster than any other state and nearly four times faster than the global average.
By transitioning beyond fossil fuels, Alaska can build a thriving economy based on its abundant renewable energy resources, reduce energy costs for families and businesses, and increase the state’s energy security.
It’s time for the Department of the Interior to review the nearly 50-year-old aging TAPS infrastructure and put a plan in place to decommission it. How the TAPS is managed is key to America’s climate future.
"Today's rule restores strong environmental review of federal actions and will go a long way towards having a meaningful process to assess the health and safety impacts of an array of projects," said one campaigner.
In a clear demonstration of how U.S. President Joe Biden's priorities differ from those of his GOP predecessor, the Democrat on Tuesday finalized a two-part push to revive and strengthen a landmark environmental law eviscerated by the Trump administration in 2020.
While in office, former Republican President Donald Trump—who has pledged to "drill, baby, drill" if he wins back the White House—attacked the National Environmental Policy Act (NEPA), which ensures communities can weigh in on projects that are built nearby or otherwise impact them.
The White House Council on Environmental Quality on Tuesday released regulations that "aim to undo Trump's gift to polluters," in the words of Food & Water Watch, one of several groups that applauded the Biden administration's new rules.
"This rule is yet another reminder that we do not have to choose between environmental justice and meeting our energy needs."
"NEPA gives communities the power to participate and advocate for themselves when the federal government greenlights polluting projects like factory farms and fossil fuel power plants," said Food & Water Watch legal director Tarah Heinzen. "Today's rule restores strong environmental review of federal actions and will go a long way towards having a meaningful process to assess the health and safety impacts of an array of projects."
"Over the past few years, NEPA has been targeted by polluters and their political allies as an impediment to permitting sensible and necessary projects," Heinzen noted. "But this is simply not the case; full, transparent consideration of a project's impacts—including climate and environmental justice impacts—is critical to informed decision making and ultimately transitioning away from fossil fuels."
In addition to reinstating provisions gutted under Trump, Biden's rule introduces new climate and environmental justice requirements.
"These are the most significant improvements in decades to the NEPA process that analyzes gas pipelines, power plants, and other polluting projects," said Brett Hartl, government affairs director at the Center for Biological Diversity. "These rules undo the damage from both the previous administrations' efforts to weaken NEPA and the Fiscal Responsibility Act of 2023."
Hartl also highlighted some inconsistency with Biden's record, saying that "these rules come not a moment too soon, as the Department of Energy, the Bureau of Land Management, and other federal agencies continue to unthinkingly approve climate-killing fossil fuel projects. All federal agencies must now meaningfully adjust their environmental reviews so that fossil fuel companies' profits aren't put above the interests of our most vulnerable communities and our climate."
Friends of the Earth legal director Hallie Templeton similarly praised the progress while stressing that the fight is far from over.
"This marks a victory in our yearslong litigation to reverse the rollbacks and benefits frontline communities who rely on NEPA for a voice in the permitting process and for transparency around our government's activities," said Templeton. "While much more must be done to shore up our nation's environmental and environmental justice laws, this is a certain step in the right direction for safeguarding people and the planet."
Abigail Dillen, Earthjustice's president, emphasized that "smart, transparent blueprinting for the future has never been more important."
"We need to build out the clean energy infrastructure of the future as efficiently and affordably as possible, while forcing a shift in business-as-usual thinking that is driving fossil fuels expansion, entrenching environmental injustice, and accelerating biodiversity loss," she asserted. "This new rule restores NEPA to its original intent while modernizing its implementation to address the scale of the environmental problems we face now."
Sierra Club executive director Ben Jealous pointed out that "this rule is yet another reminder that we do not have to choose between environmental justice and meeting our energy needs."
"Through this commonsense reform, we can unlock the benefits of the Inflation Reduction Act and bring abundant clean energy resources online without sacrificing communities or rubber-stamping more fossil fuels," he continued, referencing a package signed by the president in 2022. "We applaud the Biden administration for taking this important step toward ensuring certainty, efficiency, and transparency in the federal environmental review process."
David Watkins, the director of government affairs for the Climate and Energy Program at the Union of Concerned Scientists, said that "by restoring and strengthening key provisions of NEPA, the Biden administration has unequivocally declared that polluting industries will not have the only say in how federal investments and projects are evaluated."