On behalf of Pamela Underhill (former Superintendent of the Appalachian Trail), Jonathan Jarvis (former Director of the National Park Service), the Coalition to Protect America's Parks, and National Parks Conservation Association, we filed an amicus brief in the high-stakes Supreme Court litigation that will decide the fate of the ill-advised Atlantic Coast Pipeline and many more pipelines that may seek to bore through federal lands located in units of the National Park System. The Trump administration and the pipeline's developers (led by Dominion Energy) have, for the first time in history, argued that the Mineral Leasing Act's longstanding prohibition against granting pipeline rights-of-way in or through lands in the National Park System does not apply to the United States Forest Service where that agency cooperatively manages a parcel of land along with the National Park Service that is both a component of the National Park System and a component of the National Forest System. But this tenuous argument overlooks the plain language of three public lands statutes that govern the National Park System unit at issue -- the Appalachian Trail -- as well as decades of inter-agency memoranda and practice that confirm the federal government's understanding, across many different administrations, that only Congress may grant the pipeline right-of-way sought by developers of the Atlantic Coast Pipeline. The Supreme Court will hold oral argument in this matter on Monday, February 24, and the outcome of the case will have significant ramifications for public land management long into the future.
Nick Lawton Promoted to Senior Associate Role!
Eubanks & Associates is excited to announce that it is promoting Nick Lawton to a Senior Associate role! Nick will start his new position on January 1, 2020, which will include expanded administrative and management responsibilities. Nick began his litigation career with a predecessor firm to Eubanks and Associates in September 2015.
New Lawsuit Challenges Precedent-Setting Great Lakes Wind Project
Yesterday, on behalf of our clients the American Bird Conservancy and the Black Swamp Bird Observatory (“Plaintiffs”), our firm filed a challenge to the Icebreaker Wind Project (“Icebreaker Project” or “Project”), the first-ever offshore wind energy facility proposed for construction in U.S. freshwaters. The precedent-setting Icebreaker Project, which is being funded in part by the Department of Energy (“DOE”) to the tune of $40 million, is slated for construction in the heart of the Central Lake Erie Basin Important Bird Area—a National Audubon Society-designated Global Important Bird Area—and threatens to destroy millions of birds and bats per year in this ecologically critical area. The lawsuit, filed in the U.S. District Court for the District of Columbia against DOE and the U.S. Army Corps of Engineers (“the Corps”), highlights numerous fatal flaws in those agencies’ environmental review of the Icebreaker Project, including, among others, DOE’s refusal to prepare an Environmental Impact Statement under the National Environmental Policy Act and consider reasonable alternatives that would reduce the devastation likely to flow from the Project’s construction and operation. In addition, the lawsuit challenges the Corps’ reliance on defective scientific data and an overly narrow range of alternatives in issuing a permit for the Project under Section 404 of the Clean Water Act. If the Icebreaker Project is permitted to proceed, it will be the benchmark by which freshwater offshore wind energy projects are measured. For this reason, the superficial, result-oriented environmental analysis conducted by DOE and the Corps must not be permitted to justify this Project. A copy of the Complaint can be found here.
Eubanks & Associates Lawyers Go To Seattle To Protect Gray Whales
Today, two of our attorneys are traveling to Seattle to participate the first waiver proceeding under the Marine Mammal Protection Act (“MMPA” or the Act) in over twenty years. In April 2019, the National Marine Fisheries Service (“NMFS”) announced that it would seek a waiver of the MMPA’s moratorium on the taking of marine mammals on behalf of the Makah Tribe to allow the hunting and killing of Eastern North Pacific gray whales in the United States Exclusive Economic Zone. In order to issue a waiver of the MMPA, NMFS must demonstrate, on the basis of the best scientific evidence available, that the proposed taking will not adversely affect marine mammal stocks and will be consistent with the policies and purposes of the Act, and must propose regulations to govern the issuance of permits under the proposed waiver. The decision to waive the take moratorium and issue regulations governing such take must be made on the record after an opportunity for an agency hearing. It is clear from NMFS’s testimony that the proposed waiver and regulations will not be consistent with the policies and purposes of the MMPA, including because the hunt will result in the take of Western North Pacific gray whales, which are listed as endangered under the Endangered Species Act, and risks depleting the genetically and behaviorally distinct “resident” Pacific Coast gray whale population. The need for a precautionary approach to gray whale management is further evidenced by the fact that the Eastern North Pacific gray whale population is currently undergoing an Unusual Mortality Event (“UME”) due to an increased number of strandings. It would be contrary to the principles of sound resource management to authorize the intentional killing of individuals from a population that is experiencing increased mortality until the duration, severity, and causes of the UME can be determined. Our attorneys will be representing the Animal Welfare Institute in the administrative hearing, scheduled to begin on November 14, 2019.
(Photo courtesy of NOAA Fisheries)
Eubanks & Associates welcomes Matt Arnold as the firm's new Law Fellow!
This week, Matt Arnold started as a Law Fellow with Eubanks & Associates, LLC. We are very excited for him to join our team! More info about Matt:
Before joining the firm, Matt clerked for the Honorable Elizabeth C. Wingo at the Superior Court for the District of Columbia. Matt has also previously served as a law clerk for both Defenders of Wildlife and Meyer Glitzenstein & Eubanks LLP.
Matt received his J.D., cum laude, from Vermont Law School in 2018. During law school, Matt served as the Managing Editor of the Vermont Law Review, which selected his Note, What’s Good for the Goose May not be Good for the Gander: A Bird’s Eye View of the Emerging Incidental Take Permit Program Under the Migratory Bird Treaty Act, 42 Vt. L. Rev. 152 (2018), as the 2017 Vermont Law Review Note Competition Winner. In law school, Matt was also an active member of Vermont Law School’s Moot Court Advisory Board. During the school’s 2017 Debevoise Moot Court Competition, Matt was awarded “Best Respondents’ Brief.” In 2018, Matt was selected to represent Vermont Law School in the National Environmental Law Moot Court Competition at Pace Law School.
Prior to attending law school, Matt earned a bachelor’s degree in biology from the College of Charleston, where he focused on microbiology and saltwater algae. After graduating from college, Matt worked as a Naturalist in the salt marshes of South Carolina, where he studied the health of native avian populations and shared his admiration of wildlife with visitors to the Lowcountry. Ultimately, the encroachment of a resort development into pristine dune habitat compelled Matt to attend law school to defend the wild places he cherishes.
In his spare time, Matt is an avid birder with a particular admiration for sparrows and shorebirds. Matt is also a public lands geek who enjoys hiking (slowly, while gazing at the underbrush through his binoculars) with his wife, Sabrina, and their dog, Forrest.
Agencies Told To Conduct Robust Environmental Review Of Pipeline Impacts
Today, on behalf of a coalition of conservation organizations and affected municipalities, we submitted a 60-day notice of intent to sue letter under the Endangered Species Act (“ESA”) in connection with the proposed Permian Highway Pipeline in Texas. The letter urges the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service to avoid abusing the Section 7 consultation process under the ESA by providing incidental take authorization for impacts to ESA-listed species that will occur on private lands that are not under Federal control or jurisdiction. At minimum, the letter urges that the agencies subject the pipeline’s myriad adverse environmental impacts to scrutiny under other federal laws such as the Clean Water Act, National Environmental Policy Act, and National Historic Preservation Act.
Court Requires Federal Government to Take a Hard Look at Seismic Risks to Nuclear Weapons Facility
Today, the U.S. District Court for the Eastern District of Tennessee issued a ruling in favor of our clients, the Oak Ridge Environmental Peace Alliance and Nuclear Watch New Mexico, as well as the Natural Resources Defense Council, finding that the Department of Energy (“DOE”) and the National Nuclear Security Administration (“NNSA”) violated the National Environmental Policy Act (“NEPA”) by failing to take a hard look at serious seismic risks to aging, dilapidated nuclear weapons facilities in Oak Ridge, Tennessee. The NNSA had previously decided to continue enriching uranium for nuclear weapons in facilities originally built during the Manhattan Project and the Cold War, while rejecting calls for the agency to seriously consider new information showing increased risks of large earthquakes that could damage or even destroy these buildings, potentially causing a catastrophic release of nuclear and toxic contamination. Recognizing the fundamental importance of our clients’ claims, the court found it was “hard-pressed to imagine a more dramatic hypothetical than this, where it must contemplate what might occur if a major earthquake struck a nuclear weapons manufacturing facility located in a major population center.” Reasoning that the NNSA “blatantly disregarded” its own regulations in dismissing our clients’ serious concerns about seismic risks, the Court vacated the NNSA’s decisions and NEPA analyses and remanded the issue to the agency for a more thorough evaluation of these risks.
Bill Eubanks Selected by Law360 as a Top Environmental Lawyer
This week, the national legal publication Law360 selected Bill Eubanks as one of the nation’s five best environmental attorneys under the age of 40, based on his stellar record of winning difficult cases and setting important precedents on many legal issues of first impression in federal courts throughout the country. According to Law360, this is the first time that this award has been bestowed on a public interest litigator. Bill recently sat down with Law360 to discuss his accomplishments and vision for the future of environmental law.
Court Denies Motion to Dismiss Case to Enforce FOIA’s Proactive Disclosure Mandate
Today, the district court for the Western District of New York denied a motion to dismiss a case that we brought on behalf of our clients, the Animal Welfare Institute and Farm Sanctuary. The case aims to compel the United States Department of Agriculture and its Food Safety and Inspection Service to obey the proactive disclosure requirements of the Freedom of Information Act (“FOIA”) by placing certain records related to farm animal welfare online, including records of non-compliance with the Humane Methods of Slaughter Act and the Poultry Products Inspection Act. Our clients and others use these records to monitor the agencies’ enforcement (or lack of enforcement) of these important statutes and to advocate for more effective enforcement, statutory and regulatory reform, and improved treatment of farm animals. As such, our clients and others have a long history of frequently requesting these records under FOIA. FOIA, in turn, requires agencies to place certain frequently records online without burdening the public with the need to file repeated FOIA requests for essentially the same information—a requirement that federal agencies often ignore. Today’s ruling is an important victory that brings our clients one step closer to enforcing FOIA’s proactive disclosure mandate.
Comments Filed with FERC on Harmful LNG Pipeline and Export Facility
On behalf of our client Natural Resources Defense Council, we prepared comments on the Draft Environmental Impact Statement for a proposed liquefied natural gas (LNG) pipeline and export terminal in Oregon. The Pacific Connector pipeline and the associated Jordan Cove LNG export terminal would traverse hundreds of miles of federal land, harm numerous federally protected species, including the iconic spotted owl, adversely impact local communities, and exacerbate climate change. Our comments raised a host of important issues that the Federal Energy Regulatory Commission and other agencies must consider before issuing any approval for this harmful and ill-conceived project.
Lawsuit Filed to Protect Unique Wildlife and Historic Resources in the Nebraska Sand Hills
Grand opening of Eubanks & Associates, LLC on July 1
On July 1, 2019, Eubanks & Associates, LLC will officially open its law offices in Washington, DC and Fort Collins, Colorado. Eubanks & Associates, LLC is a distinguished public interest law firm focused on environmental, public health, animal, and open government issues. The firm specializes in impact litigation in federal appellate and trial courts. We are excited to carry on the tradition of Meyer Glitzenstein & Eubanks LLP, where the new firm’s attorneys worked prior to its closure on June 30, 2019.