Reclaim Democracy!

Key 2024 Supreme Court Cases — environment and democracy: Loper Bright Enterprises v. Raimondo

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Will a majority of Justices overturn a 40-year-old precedent to grab more power for itself and for corporations?

March 2024

On the surface Loper Bright is a dispute about fishing corporations challenging the power of the National Marine Fisheries Service to require them to pay the cost of observers who monitor companies’ compliance with federal fishery rules. But this seemingly narrow legal question actually could yield widely destructive consequences because the justices have opted to re-examine a 40-year-old precedent the court established in Chevron Inc. v. Natural Resources Defense Council. 

That precedent, widely known as the Chevron Doctrine, says state courts should defer to federal agencies’ interpretation of a law when the language is ambiguous or leaves discretion regarding implementation.

Chevron effectively says the civil servants with expertise in their field and who are accountable to an elected president should decide how to implement Congress’ mandates, rather than judges — a principle clearly rejected by the most regressive justices. Reversing this precedent would do enormous harm, stripping many federal agencies charged with protecting civil rights, consumers, and public health and safety; limiting pollution and environmental harm; and much more. 

Stripping the Environmental Protection Agency of its authority to limit carbon emissions is one obvious industry target. 

Dozens of corporate and far-right advocacy groups are pushing the court to overturn Chevron and anoint federal courts as the arbiters of which federal regulations are proper. Such a ruling would invite floods of lawsuits challenging rules that limit or regulate corporate activities. Workplace safety rules, product safety regulations, and limiting emissions to abate the climate crisis are among the obvious targets.

Reversing Chevron also would undermine other core Unitarian Universalist values by enabling state politicians to challenge crucial federal civil rights and voting protections.

Congress is ill-equipped to manage the day-to-day administration of legislation it passes and necessarily must empower federal agencies to turn its broad directives into specific actions based on good-faith interpretations. Those actions remain subject to judicial oversight if any agency truly exceeds its authority. Accordingly, SCOTUS should uphold theChevron precedent and sustain the ability of civil servants to do their jobs effectively.

SCOTUS however, appears likely to at least weaken, if not overturn, the Chevron Principle, based on reports from oral argument.

Origin and Status: The case came on a writ of certiorari to the U.S. Court of Appeals for the District of Columbia Circuit. In October, the court also agreed to hear a second challenge to the Chevron Doctrine, Relentless v. Department of Commerce, which will be argued simultaneously with Loper v. Raimondo. 

Related: Edison Electric Institute v. Federal Energy Regulatory Commission (FERC):  Other corporations also are pushing the Court to overrule Chevron and grant them more power. The Edison Electric Institute and the utility NorthWestern Energy seek to have a lower court ruling in favor of the U.S. Federal Energy Regulatory Commission overturned. They object to approval of a FERC finding that a Montana solar and battery storage facility qualifies for incentives that encourage small renewable energy producers to upload power to the grid. No action has been taken by the Court as of April 2024.

The Multiplier Effect of Local Independent Business

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By Jeff Milchen, with thanks to Stacy Mitchell.

Clearly communicating the importance of the local economic multiplier effect or “local premium” is a key part of effective “buy local” public education campaigns. The multiplier results from the fact that independent locally owned businesses recirculate a far greater percentage of revenue compared to absentee-owned businesses (or locally owned franchises). In other words, going local creates more local wealth and jobs.

The multiplier consists of three elements — the direct, indirect, and induced impacts.

  • Direct impact is spending done by a business in the local economy to operate the business, such as inventory, utilities, equipment, and employee pay.
  • Indirect impact happens as dollars the local business spent at other area businesses.
  • Induced impact refers to the additional consumer spending that happens as employees, business owners, and others spend their income in the local economy.

Private research firm Civic Economics has executed many studies quantifying the difference in local economic return between local independents and chain businesses. One such study in Austin, Texas showed an independent bookseller and music seller returned 3x as much money to the local economy as a proposed Borders Books and Music outlet would. The Austin Independent Business Alliance successfully used the study to rally opposition against a City-planned subsidy to attract a Borders Books and Music store.

Those results have been mirrored by subsequent studies (ten years of studies are summarized here), each showing a much greater local multiplier for spending at independent businesses than chains. These studies measured the direct and indirect impacts to determine the base level local economic activity of a purchase made at a chain and a local independent business.

On average, 48% of each purchase at local independent businesses was recirculated locally, compared to less than 14% of purchases at chain stores.

Civic Economics: Benefits of local business vs chains
Civic Economics: Benefits of local vs chains

The Institute for Local Self-Reliance conducted a study of the local multiplier effect in several small Maine communities in 2003. The study examined how much of a dollar spent at a local independent store is re-spent in the local area as payroll, goods/services purchased from area businesses, profits spent locally by owners, and donations to area charities. The study found that every $100 spent locally generated $45 of secondary local spending, compared to only $14 for a big-box chains — nearly identical to later results across the decade of Civic Economics studies.

Key Points

One study by Civic Economics has been the source of much confusion misrepresentation, to the detriment of many organizations. The study of Chicago’s Andersonville neighborhood found a total economic impact (i.e., direct, indirect, and induced) of $0.68 for each dollar spent at 10 local independents, compared to $0.43 for chain competitors. However, the projection of indirect and induced impacts does not mean $0.68 of each dollar spent at a local independent “stays” in the local economy, a widely spread inaccurate claim. It means $0.68 of additional local economic return is generated after additional spending cycles. Citing the higher numbers without including an explanation is wrong.

The Andersonville study examines just 10 businesses in one neighborhood of a large city, so we discourage extrapolating its findings too broadly. Businesses in smaller cities and towns typically have less ability to source many goods and services locally.

Be careful not to undermine the credibility of your group or campaign by presenting apples as oranges or statistically insignificant samples as a general truth! To gain respect as an authoritative voice within your community, we suggest you guard your credibility by checking your materials to ensure they convey verifiable, accurately worded information and only rely on primary sources. 

Stickiness

In addition to being accurate, make sure your message is memorable. Saying, “Independent retailers return more than 3x as much money per dollar of sales than chain competitors,” is more memorable than talking in terms of percentages or comparing $0.48 to $0.15. For restaurants, consider messages such as, “Per dollar of revenue, locally owned independent restaurants return twice as much to our local economy than chain restaurants.”

Buying remotely on the web creates almost no local benefit, only minutes of work for a delivery person. Calculating the added local wealth that would be generated by a 10% shift to local independents is one tactic successfully employed by several communities.

How much of each $100 stays in your community?
The local benefit of an online, remote sale depends on local driver wage, the size of the area (number of stops per hour), and distance to processing centers.

Study Variants

The size of the local premium varies depending on the type of business. Restaurants and service providers generate a large multiplier because they are labor-intensive and more of each dollar of revenue goes to local payroll. Most retailers, unless they source an exceptionally high percentage of their goods locally, also create a more modest multiplier than restaurants.

This is not to say restaurants are better for economic development than retail. May retailers have sizable revenue and professional job opportunities, which are important to any local economy. It’s just helpful to be aware of these differences because the mix of businesses involved in a particular study will influence the results.

Land Use

In 2009, Stay Local! in New Orleans commissioned Civic Economics to evaluate economic return per square foot of retail space used by both local merchants and Target Corporation. The local merchants studied generated twice as much sales activity per square foot and nearly quadrupled the local economic return per square foot compared to projections for Target. 

Quantifying Shifts in Spending

To gauge the overall impact on your local economy of shifting 10% of purchasing from absentee-owned to locally owned businesses, you would need to know the local multiplier for each category of spending and the percentage of peoples’ spending in each category. (e.g., 20% goes to groceries and the grocery multiplier is 0.15 or 5% goes to books and the local multiplier is 0.32).

NY Times Rails Against Fake Drugs, but Ignores the Role of Corporate Power in Creating the Demand

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by Reclaim Democracy staff
December 3, 2012

a victim of fake drugs? Among the many awful consequences of  many essential pharmaceuticals being priced beyond the reach of those who need them is the proliferation of fake drugs. While some counterfeit drugs are  manufactured by unauthorized producers and simply flout patent law, less scrupulous people are making pills or serums with no active ingredients or even toxic substances.

It’s a deadly problem in need of solutions, so it’s unsurprising the New York Times devoted a recent editorial to “The Problem of Fake and Useless Drugs.”But while the Times editors called for several sensible measures, they did readers a huge disservice by neglecting to mention the primary reason why fake drugs are so prevalent: federal actions that ban market competition, creating artificially high prices that are unaffordable to many who need them.

First, our patent laws grant pharmaceutical corporations long monopolies on essential drugs — even though a majority of the most medically-significant drugs derive from taxpayer-funded research (a situation we described a decade ago, but continues today). These exclusive patents enable companies to charge prices unrelated to costs of research and development or production. *

Further, pharmaceutical corporations routinely employ legal manipulations, illicit non-compete agreements and other tactics to further extend patent monopolies and block production of generic competitors that lower prices.

To make matters worse, federal laws ban importation of drugs or even re-importation of genuine drugs manufactured here. Under the guise of protecting consumers from counterfeit drugs, such laws enable gouging that forces us to regularly pay double or triple the price people pay for identical drugs in other nations, driving the demand for cheap counterfeits.

Of course, when privately-funded research yields an important new drug, the creators should be able to reap significant rewards in order to create strong incentives for real research and development. The trouble is, our present patent system rewards political power above innovation.

And when drugs are developed with publicly-funded research, we should contract private companies to produce them at a fair profit, not give away rights to valuable public property.

We’ve been thrilled to see the Times editors call for amending the Constitution twice in recent months to revoke the runaway political power of corporations, in recent months. This excessive power over agencies that purportedly serve the public underlies the tragedy of fraudulent drugs and the lives they claim.

The  arguments by the NY Times editors, and those made by all who call to revoke corporate personhood, will possess more power if they make such real-life impacts clear.

* See, for example, the current controversy over the AIDS drug Norvir.

Sources for further reading on this topic:

image courtesy bayat

Win for environmental law, loss for Walmart

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By Will Evans
First Published Nov. 16, 2012, in California Watch

A California appellate court has dealt a blow to Walmart’s strategy of using petition drives to push through approval of new superstores while avoiding California’s environmental law.

In a cookie-cutter pattern documented by California Watch, the mega-retailer bankrolled local signature-gathering efforts to build superstores or repeal restrictions on big-box stores in five California cities last year. Once 15 percent of local voters signed the petitions, city councils had to either approve the projects or hold a special election, which can be costly. Wal-Mart then urged cities to approve the petition rather than send it to voters, angering some officials who felt bullied.

Wal-Mart has said the strategy is necessary to avoid politically motivated lawsuits under the California Environmental Quality Act.

Voter-approved ballot measures that stem from petitions are exempt from environmental review and protected from CEQA lawsuits. Wal-Mart argued that when a city approves one of its petitions without an election, the project would be protected, too.

But in a strongly worded opinion, a three-judge appellate panel ruled late last month that the landmark environmental law still applies.

“The legal issue is important and calls for speedy resolution,” the opinion stated. “Developers’ strategy of obtaining project approvals without environmental review and without elections threatens both to defeat CEQA’s important statutory objectives and to subvert the constitutional goals of the initiative process.”

The Fresno-based 5th District Court of Appeal disagreed with a 2004 ruling by a different appellate court, setting up the possibility that the issue will ultimately be resolved by the California Supreme Court. Since the company carbon offsetting is being regularly tracked by the professionals from carbon click, this issue  will resolved in no time

The Fresno court held that a petition signed by 15 percent of a city’s voters doesn’t carry the same power as a majority-approved ballot initiative. “To hold otherwise would authorize rule by a few – the antithesis of democracy,” it said.

The case centers on a Wal-Mart expansion project in the small Gold Country city of Sonora. Attorneys who often target Wal-Mart with environmental lawsuits have sued over its use of the initiative process there, as well as in the San Bernardino County town of Apple Valley and the Silicon Valley suburb of Milpitas.

The city of Sonora argued in court filings that its citizens supported the proposed superstore so there was no point in holding an election. Wal-Mart argued that it would be unfair to “force city councils to incur unnecessary and unwanted expenses to hold elections.”

The city’s and company’s positions reveal “their failure to appreciate the importance of elections in the initiative process,” the court stated. “The results of an election represent the will of the people. A petition signed by 15 percent of the voters does not.”

The legal battle slowing down Wal-Mart’s expansion frustrates Sonora Mayor Hank Russell.

“These people just want to delay a process that should be part of a free market economy,” he said. “I don’t think it’s the city’s role to decide who can compete.”

Wal-Mart spokeswoman Delia Garcia said the existing Sonora store “has served customers faithfully and made a positive impact on the local economy.”

“We are committed to providing customers the broadest selection of products to meet their family’s needs and will evaluate all options for moving forward,” Garcia wrote in an email.

The court’s ruling goes beyond Wal-Mart, said Brett Jolley, the attorney who brought the suit.

“The opinion closes what could have been a major loophole in the CEQA process which would have allowed the wealthiest developers … to avoid CEQA and public elections by utilizing the initiative process,” he wrote by email.

Jolley quoted California Watch’s story in his opening brief, but Wal-Mart objected, moving to strike that part of the petition. The judges decided that the reference to the article did not alter their conclusions and denied Wal-Mart’s motion.

San Diego-based lawyer Cory Briggs, a longtime thorn in the side of Wal-Mart, said he would use the ruling to revive a similar lawsuit he is pursuing in Apple Valley. Briggs, who filed a friend-of-the-court brief in the Sonora case, heralded the decision as “a victory for the rule of law and for true majority rule.”

“Any developer who thinks that they’re going to buy their way to the ballot box is now going to have to do the work of actually persuading a majority of the voters,” said Briggs.

Wal-Mart has had mixed success at the ballot box. Voters in Inglewood shot down the company’s proposed superstore in 2004. But the residents of Menifee, in Riverside County, approved a Wal-Mart ballot initiative last year.

For more on this topic, see:

photo courtesy Brave New Films

Kicking the Coal Habit

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By Ted Williams
First Published by Audubon Magazine, May-June 2012

Editor’s note: For an overview and directory of resources on the current battle in Montana and the Northwest, see here.

What is the future of coal-fired power? Is it a “dead man walking,” as defined by Kevin Parker, Deutsche Bank’s global head of asset management, who notes that banks won’t finance it, insurance companies won’t insure it, and the EPA is after it? Or is it an economic elixir that will rouse comatose Americans from the canvas like Rocky Balboa and “together . . . power the next great comeback [with] clean coal,” as depicted in the TV ads of the American Coalition for Clean Coal Electricity?

Probably neither.

One of the strongest voices for coal-industry reform is Ann Weeks, litigation counsel for the Clean Air Task Force, a non-profit focused on protecting air and climate. She offers this: “The problem with wind and solar is that they’re intermittent—the wind doesn’t blow all the time, and the sun doesn’t shine all the time. You have to store the extra, and we don’t have that technology. I think we have to resign ourselves to finding a solution that cleans up coal.”

But we already have that in “clean coal,” right?

Not hardly. “Clean coal” is a term concocted for the industry by R&R Partners, the ad agency that, by hatching the equally brazen untruth “What happens here stays here,” helped Sin City seduce gullible tourists into gambling away their money and marriages. The Ohio Valley Environmental Coalition’s Vivian Stockman provides “clean coal’s” best definition: “the mother of all oxymorons.”

Among the costs of mining, processing, and burning coal are mountains, prairies, rivers, lakes, fish, wildlife, livestock, people, and climate. And while pollution-control technology captures some of the poisons and carcinogens that mix with air and water, calling treated coal waste “clean” is the equivalent of settling out solids from municipal sewage, piping what’s left into public reservoirs, and labeling it “sanitized effluent.”

America is moving away from coal. Three years ago plans were underway for at least 150 new coal plants, but not one has broken ground since—largely because natural gas is cheaper and cleaner. Our existing coal plants tend to be old and decrepit, and expensive and difficult to retrofit with required pollution-control technology. In fact the Associated Press reports that this will cause the inevitable shutdown of 32 facilities (mostly coal-fired) and the possible shutdown of 36 others.

Still, the world’s largest private-sector coal producer, Peabody Energy, may be right when it proclaims that “coal’s best days are ahead.” This is because it and other companies plan to sell strip-mined coal to Asia . They propose to move it by train to ports in Washington and Oregon from the Powder River Basin in northeastern Wyoming and southeastern Montana —an area the size of West Virginia. Most of the basin’s springs and shallow aquifers are in coal seams, and are poisoned and desiccated by strip mining. As a result, much of the cost of vastly expanded strip mining for the Asian market would be borne by wildlife, farmers, and ranchers.

Peabody Energy is the main player in a plan to annually extract an additional 50 million tons of Powder River Basin coal for sale to Asia . The company claims that port expansion near Bellingham, Washington (at Cherry Point), and construction of new rail lines would create “8,400 direct, indirect, and induced jobs” and inject $900 million into the economy. Similar though smaller projects are planned at Longview and Grays Harbor in Washington and Coos Bay, Port St. Helens, and near Boardman in Oregon.

Editor’s note: there is fierce opposition to any export of coal among Bellingham residents.

China, where most of the coal would go, is building the equivalent of two 500-megawatt coal-fired plants each week. Although it produces twice as much coal as the United States, it has gone from a net coal exporter in 2008 to a net importer today.

Writing in Yale Environment 360, an online magazine, Jonathan Thompson draws an apt comparison between exporting coal and exporting tobacco, calling coal “the cigarette of our new age.” A quarter-century ago the tobacco industry was also comatose on the canvas. Medical evidence had given the lie to its mantra that smoking and cancer weren’t linked; no longer could it advertise on television or radio; and on its very packaging it had to warn customers against using its product.Then it found a market in Asia (mostly China) so lucrative as to “confound the imagination,” as a Philip Morris vice president effused. Tobacco companies sponsor at least 100 elementary schools in China, where 16 million kids under 15 smoke. “Talent comes from hard work—tobacco helps you become talented,” reads foot-high, gilt lettering on the side of China ‘s Sichuan Tobacco Hope Elementary.

Coal isn’t far behind firearm homicides or drunk driving in killing people, annually causing 24,000 heart attacks, 217,600 asthma attacks, and dispatching 13,200 Americans, according to the Clean Air Task Force. And the toll is undoubtedly higher in China, where citizens are demonstrating against coal power by the tens of thousands.

So mortality and morbidity are what we’d be exporting along with our coal.

To learn what Americans can expect from the deal, I visited the Powder River Basin in February. From Billings I drove two hours east to Colstrip, Montana, an 88-year-old community of 2,300 built because of the adjacent Rosebud strip mine—now 50 square miles and which feeds a midtown power plant owned, in part, by PPL Generation. The “city,” as it calls itself, would have been “Coalstrip” had not a spelling error permanently disappeared the “a.”

Colstrip residents overwhelmingly support the mine and plant. Less sanguine are other Montanans who depend less on coal but who pay for it in fish, wildlife, livestock, and quality of life. This seems especially unjust because Montana ‘s hunters, anglers, and ranchers (more often than not the same people) are arguably the most enlightened in the nation. For example, this group and the wildlife managers they’ve hired have broken with counterparts in Wyoming and Idaho in accepting wolves.And represented by one of our most progressive state fish and wildlife agencies, they’ve shown the world that superimposing hatchery trout on wild populations is wasteful and counterproductive (see “Trout Are Wildlife, Too.”).

If you figure in real costs, coal is a net loss for Montanans, and even if you don’t, much of the alleged profit migrates out of state. The mine is owned by Westmoreland Coal Co., based in Colorado. The plant is primarily owned by Washington’s Puget Sound Energy. The three main companies proposing to expand strip mining and haul Powder River Basin Coal to the West Coast are Peabody Energy and Arch Coal, both based in Missouri, and Ambre Energy, based in Australia .

A month before I arrived in Colstrip I’d asked Jesse Noel of Western Energy (a Westmoreland subsidiary) for a tour of the Rosebud mine, explaining that while he wouldn’t like my article, he’d like it better if I could get the company’s perspective and not just that of the local populace. He said he’d “run it up the flagpole,” then called back to say his company wasn’t “interested” in showing me its operation because “the last few articles have not shown us in a favorable light.”

Fortunately (for me, at least) the Sierra Club’s Mike Scott agreed to give me a tour of the mine. Scott, 32, doesn’t fit the popular image of a Sierra Club official. The tall, athletic goat rancher and big-game hunter came to the club three years ago from the Northern Plains Resource Council, a group formed by local farmers and ranchers to stop mine development and resulting power plants from completely destroying their way of life. Scott knows roads that Western Energy can’t legally block and that offer a true picture of open-pit strip mining as opposed to the sanitized view the company showed journalists when it was on friendlier terms with them.

Confronting us was a flatland version of the mountaintop removal I’d seen in West Virginia. “Overburden,” the industry’s word for wildflowers, grasses, forbs, shrubs, trees, and topsoil, had been bulldozed away. Two-hundred-foot-high draglines bit into eight-story-deep coal seams blown to rubble with ammonium nitrate. Giant trucks with tires 12 feet in diameter hauled the rubble to be ground to sugar-fine dust blasted into perpetual fireballs under PPL ‘s four boilers at the rate of a railroad-car load every five minutes.

Here and there we encountered pools of water. Companies can’t let it sit in their mines, so they get state permits to divert it to rivers—in this case tributaries of the Yellowstone and Tongue. One of the many health threats of strip mining is “fugitive dust,” and on this day it swirled around us in yellow clouds. Not only does it accumulate in lung tissue of humans and wildlife, it pollutes wetlands, streams, and lakes. The industry tells locals that it’s safe, that they shouldn’t worry about it—and to avoid it.

A strip-mining company must post a bond to partly cover costs of reclamation should it go bust. And the bond isn’t released until work passes muster with the Interior Department (on federal land) or the appropriate state agency if it’s on state land. In Montana one-tenth of one percent of the strip-mined land has qualified for bond release; in Wyoming the figure is four percent. As we gazed out over the vast moonscape in front of us, Scott declared: “To me this is just as bad as mountaintop removal. But western coal mining is framed as somehow more benign. I think that’s because no one lives here and it’s easier to hide.”

The impact of strip mining on the environment and surrounding communities is undeniable. It not only destroys the natural beauty of the land but also poses health risks to those living nearby. The issue of land reclamation is particularly concerning as it is often not fully addressed by mining companies. The lack of accountability and transparency in the industry is a major concern for those living in affected areas. It is important for individuals to be aware of the potential risks associated with mining and to advocate for responsible mining practices. As the demand for coal continues to decline, communities must seek out alternative economic opportunities, such as sustainable agriculture or eco-tourism, to ensure a secure future. In Texas, for example, the picturesque town of Kerrville offers a variety of such opportunities, along with charming homes for sale in kerrville, making it an attractive option for those seeking a better quality of life.

Despite the devastation we encountered, Montana is pristine compared with Wyoming . Wyoming provides 40 percent of the nation’s coal, Montana about 4 percent.

Back in town we inspected the power plant. Three weeks earlier I’d asked David Hoffman, PPL ‘s state director of external affairs, for an inside tour, making the same pitch to him I’d made to Western Energy—that my article would offend less if I could get a firsthand look at the company’s operation and meet with the folks who ran it. He declined.

Four stacks belched smoke to a cloudless sky. The two shorter ones topped boilers and 358-megawatt generators built in 1975 and 1976 and designed for 30-year lifespans. The boilers and 778-megawatt generators under each of the taller stacks were constructed in 1984 and 1986. An analysis of EPA data done by the Associated Press shows that the plant is the nation’s eighth-most-prolific greenhouse-gas producer.

Scrubbers, which saturate coal smoke with water, remove some of the poison-laden ash. The contaminated water is then shot into the plant’s “ash ponds.” By any definition coal ash is hazardous waste. But when it appeared that the EPA would designate it as such and thereby require the industry to invest in safe disposal, coal ash got designated as mere “solid waste.”

The plant’s certificate from the state Board of Natural Resources and Conservation required that the ash ponds not leak. So when they began poisoning entire aquifers then-owner Montana Power got a court to allow “seepage,” as if this were somehow different than “leakage.” PPL claims to have lined some of its ash ponds with plastic, but leakage (seepage) appears to be ongoing. Fifty-seven citizens sued PPL for damage to their water, collecting $25 million in 2008.

Water for steam, pumped from the Yellowstone River, is stored in a “surge pond” that overflows into Armells Creek and, according to residents, drowns cottonwoods and wipes out productive ranchland for miles to the west by drawing salts from the earth and converting grass to cattails.

“Coal is cheap,” Rosebud mine’s neighbor Nick Golder told me at his ranch just north of Lame Deer, “because the industry doesn’t pay its bills.” Golder started ranching here in 1947 and since then has spent more time than he can afford working to save the local livestock industry from the mine and power plant. “Ranchers are independent people,” he said. “But we saw we had to join together, and we formed the Northern Plains Resource Council. Anyone in the proximity of the strip mine has lost water. If reclamation was done properly, it would restore aquifers, too. Downwind of the power plant grass is stunted and won’t head out [go to seed]. Upwind it’s mostly fine. Misting [spraying ash water heavenward to evaporate it] puts the stuff back in the air that they took out in the first place. We laugh at a dog for chasing its tail, but at least he doesn’t pay to do it.”

Perhaps because of past overgrazing the Powder River Basin is often perceived as desiccated and dead, but it is rich wildlife habitat with rolling hills cloaked in grasses, shrubs, and trees. I was reminded of what’s at stake when Golder’s ranching partner, Brad Sauer, drove me in his pickup truck through backland too rough for my rental car. Barely visible on distant slopes, white pronghorn rumps mixed with black steer backs like rice and beans. Mule deer filed across ridgetops. Raptors soared. A cock pheasant sprinted into sage. At an ancient homestead a coal seam showed in a rock formation three feet above ground. We dismounted to inspect golden sandstone spires inscribed with Indian petroglyphs and 19th-century rancher graffiti. To our south rose Deer Medicine Rocks, on which Sitting Bull, inspired by a prolonged fast, carved his accurate vision of Custer’s approach.

Above the basin’s shallow coal deposits dwell cougars, bobcats, bears, elk, deer, black-tailed prairie dogs, black-footed ferrets, and 250 bird species. In the words of Mike Scott, this is “the iconic West that so many people on the coasts have seen in westerns but never get to experience—a landscape that breaks your heart with its desolate beauty and abundance of life.”

In Forsyth I met Clint McRae, another Rosebud neighbor, rancher, and Northern Plains Resource Council activist. When I asked him how he felt about the coal around his ranch going to China, he said: “If it’s for a plant in the United States, that’s one thing. But they’re talking about using condemnation to take my private land [for a rail line] so they can haul coal to a communist country. This is a game changer.”

McRae views what’s planned for the Powder River Basin in the same light as TransCanada Corporation’s proposal to seize the property of U.S. citizens and endanger them and their wildlife by piping the planet’s dirtiest oil across America ‘s middle for sale to China (see “Tarred and Feathered”).

“There are people furious with Obama for calling the bluff of Congress and taking another look at the XL pipeline,” he declared. “He did a gutsy thing. Finally someone stood up. Republicans used to represent property rights; they used to represent me. Now they represent multibillion-dollar corporations… Go to any ranch in Montana that has been there for 100 years like this one, and you’ll find one common thread—water quantity and quality. The mine and ash ponds are wreaking havoc with ranching operations. It wouldn’t be this way if the state and federal government enforced existing laws.”

But enforcement rarely happens. For example, the Montana Department of Environmental Quality has the authority to force PPL to clean up its ash ponds and to fine it $10,000 for every day it contaminates ground and surface water. It has done neither. And ranchers are suing the department for allowing Western Energy to dewater and poison their springs and wells.One of the litigants, Doug McRae (Clint’s cousin), reports that six of his cattle died when they drank from a spring polluted by mine runoff.

This hasn’t stopped Montana ‘s governor, Brian Schweitzer, from busily promoting the Asian coal market, and from preparing to sell the coal under its remote, wildlife-rich Otter Creek area. According to the National Wildlife Federation, the mining, transport, and burning of that coal will foul the planet with 2.4 billion tons of carbon dioxide. Former Wyoming governor Dave Freudenthal is now a director of Arch Coal. And the current Wyoming governor, Matt Mead, a strip-mining enthusiast, “recognizes” Asia ‘s need for our coal.

But the main threat comes not from Montana or even Wyoming . It comes from the federal government, which owns the vast majority of the coal reserves in both states. Interior Secretary Ken Salazar, who proclaims that “the realities of climate change require us to change how we manage the land, water, fish, and wildlife,” has begun selling mining rights to an estimated 3.7 billion tons of Powder River Basin coal.

Meanwhile, Bellingham officials and chamber-of-commerce types whoop it up for port expansion to facilitate coal export to Asia while simultaneously bragging about awards the city has received from the EPA and Natural Resources Defense Council for quitting fossil fuel. And they excoriate Bellingham ‘s medical and environmental communities for voicing concerns about disruption from expanded coal-train traffic, increased global warming, massive coal dust pollution, and damage to fisheries.

Seattle Audubon director Shawn Cantrell says this: “It doesn’t make sense on many levels—from climate change to extraction problems to transport problems. We don’t want these mega-trains with the volumes they’re talking about coming through our communities. This is a particularly bad product because there’s so much coal dust that just coats everything. We’re going to have a monumental fight because coal is still huge in parts of the country. Washington can lead the trend on the export issue.”

Like the city, the state has committed to renewable energy, and it has legislated strict greenhouse-gas limits that include a forced shutdown of its single, though enormous, coal-fired power plant by 2025. In addition, the plant’s owner, TransAlta, must contribute $55 million for economic development and investments in clean energy and energy efficiency.

But the boosters don’t see a problem with exporting greenhouse gases that threaten the entire planet or exporting poisons that will damage human and non-human life not only in Asia but the United States, especially Washington—one of the closest downwind states. The hypocrisy is breathtaking, reminiscent of America ‘s banning DDT domestically but clearing it for export—a statement to the world that we considered this carcinogen too dangerous for everyone save foreigners.

“If we don’t make money poisoning Asians, other countries will,” is the basic pitch. Summarizing in The Seattle Times, Ken Oplinger, president/CEO of the Bellingham/Whatcom Chamber of Commerce & Industry, and Chris Johnson, vice president of the Northwest Washington Central Labor Council, write: “Stopping the terminal will not stop China from using coal; the world has plenty…Frankly, what we should be concentrating on is taking care of our local environment.” A similar moral case could be made for whacking a key witness because Bugs Moran had already put out the hit and someone else would have collected the fee anyway.

Actually, providing China with the world’s cheapest coal will merely ensure a long-term commitment to it while removing incentives to improve plant efficiency and seek alternate fuels, all of which are cleaner. There is nothing “startling” about this, notes natural resources watchdog and former University of Montana economics professor Thomas Power. “Lower prices and costs encourage consumption. Higher prices and costs discourage consumption.”

When all is said, however, there’s some cause for optimism. Public outrage in Montana, Wyoming, Washington, and Oregon is mounting to the point that at least one expert is betting against major export of Powder River Basin coal. “Most folks see it as a lose–lose proposition for the environment and local economies,” remarks Nancy Hirsh, policy director for the Northwest Energy Coalition, an alliance of environmental groups, civic and human-services organizations, and businesses, including utilities. “I don’t think there will be a lot of success because of the public outcry. Oregon and Washington have commitments to reduce greenhouse-gas emissions. And yet here we’re going to grant permits for coal exports and transport our problem across the ocean? It just doesn’t ring true to public-policy makers.”

While Hirsh hardly articulates the majority opinion, other encouraging news cannot be debated. The few U.S. coal plants on the drawing board face daunting requirements. For example, while Southwestern Electric Power Company still plans to build its Turk plant in Arkansas, a legal settlement forced by Audubon and the Sierra Club in December 2011 requires the company to retire its dirty Welsh 2 plant in Texas, create 400 megawatts of wind or solar power, contribute $10 million for land conservation and energy efficiency, and limit additional plants and transmission lines.

Across the nation students, some wearing “Kick-Ash” skivvies, are demonstrating against on-campus coal plants. At Michigan State University, students staged a sit-in to protest health hazards posed to themselves and East Lansing residents by the school’s coal-fired power plant. Twenty colleges and universities have promised to quit coal by signing on to the Sierra Club’s Campuses Beyond Coal initiative.

Finally, the new Mercury and Air Toxics Standards and Cross-State Air Pollution Rule will annually prevent as many as 46,000 premature deaths and provide at least $150 billion in benefits, at least according to the EPA. And the agency recently announced carbon-dioxide limits for new power plants and major upgrades.

While we cannot wean ourselves from coal anytime soon, we’re phasing it out. Despite the “clean-coal” media blitz, Americans, from liberal environmentalists to conservative ranchers, now recognize it as a filthy, 19th-century fuel source whose days are clearly numbered.

© 2012 Audubon Magazine

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Bozeman Resolution on Coal Trains

by

Posted July 2, 2012

A resolution of the Bozeman City Commission to request that the U.S. Army Corps of Engineers hold a public hearing in Bozeman, Montana, and that it prepare a comprehensive Programmatic Environmental Impact Statement (PEIS) on the cumulative impacts of new and expanded coal export terminals in Washington and Oregon, as Bozeman will be significantly impacted by the transport of coal by rail from the Powder River Basin in Montana and Wyoming to terminals along the Pacific Coast.

WHEREAS, currently, there are four coal-export terminal projects pending before the Corps: the Gateway Pacific Terminals (“GTP”) site at Cherry Point, Washington; the Millennium Bulk Logistics (“MBL”) site at Longview, Washington; the Oregon Gateway Terminal at the Port of Coos Bay, Oregon; and the Coyote Island Terminal site at the Port of Morrow, Oregon. Additional permit applications are anticipated for the Kinder Morgan project at the Port of St. Helens, Oregon, and the RailAmerica proposal at the Port of Grays Harbor, Washington. Additionally, existing export terminals at port facilities in British Columbia that are already receiving coal shipments are considering expansions.

WHEREAS, taken together, the announced capacity of the planned U.S. projects is approximately 150 million tons of coal per year. Operating at full capacity, these plans would mean approximately 60 coal trains—each about a mile and a half long—moving through Montana , Idaho , and the Pacific Northwest everyday. These trains will pass through Bozeman , Montana , and will potentially result in a significant adverse effect on our community that should be considered in any environmental review of these proposals.

WHEREAS, to ensure each individual permitting action accounts for the significant cumulative impacts of multiple proposed Northwest coal export terminals, the Army Corps of Engineers must first prepare a PEIS that carefully analyzes the combined impacts of multiple, similar coal export terminal proposals.

WHEREAS, such analysis is allowed for, and most likely required, under the National Environmental Policy Act (NEPA). Under Section 1508.25(a)(1) and (2) of the Council of Environmental Quality’s NEPA regulations, this environmental review must collect, analyze, and consider connected and cumulative actions for any federally supported project. Further, “cumulative” and “similar” actions should be discussed within a single environmental impact statement, necessitating the development of a PEIS.

WHEREAS, the railroad tracks in Bozeman bisect a significant portion of the city’s residential, commercial, and industrial activities, and the crossings at North Rouse Avenue, Wallace Avenue, Griffin Avenue, and Story Hill Road restrict access to Kelly Canyon, Bridger Canyon, and the Bridger and Bangtail Mountain ranges for residential, commercial, and recreational access. Additionally, the response time of emergency services, including law enforcement, fire departments, and emergency medical services, will be increased to the aforementioned areas, resulting in potentially life-threatening delays.

WHEREAS, the increased noise, air pollution, and inconvenience could lead to significant reductions in property values; and an increase in response times for emergency services could lead to increased property insurance and health care costs.

WHEREAS, increased train traffic, whether by an increased number of trains or cars per train, will cause significant increases in diesel exhaust, coal dust emissions, and noise pollution; and the longer and more frequent delays in vehicle traffic will result in increased emissions of air pollution from numerous cars idling for additional hours per day. These increases in pollution can reasonably be expected to have negative health impacts.

WHEREAS, increased diesel emissions and coal dust will negatively affect the agricultural sector of the Greater Bozeman area, especially farms and ranches adjacent to the rail line. This could cause significant negative impacts in local agricultural production, as farms and ranches may need to relocate to avoid contamination of their fields and pastures.

WHEREAS, Bozeman’s large and growing high-tech sector is a major factor in the economic vigor of our city, and the location of high-tech businesses in Bozeman is closely related to quality of life, which will be negatively impacted by increased train traffic. This could lead to a loss of new businesses locating in Bozeman, the exodus of existing businesses, a reduction in construction jobs and all the supporting businesses and services needed to support these businesses and their employees.

WHEREAS, increased noise and air pollution may negatively affect tourism, as most of the city’s hotels and many other tourist facilities are located close to the railroad tracks. Shortened stays due to these impacts would significantly reduce income among this critical economic sector in our area.

WHEREAS, the citizens of Bozeman would bear the costs to upgrade several railroad crossings and build new infrastructure to mitigate traffic delays and safety concerns, resulting in increased taxes.

WHEREAS, mounting evidence demonstrates the negative health impacts of coal mining, process, transport, and combustion.

WHEREAS, studies show living near major transportation routes and industrial areas correlates with higher rates of respiratory and cardiovascular illnesses, due to diesel emissions, coal dust particles, and exhaust from idling automobiles.

WHEREAS, increased train traffic through the northern portion of the Greater Yellowstone ecosystem and through the I-90 corridor may have a detrimental effect on the waterways, wildlife populations, and health of the Greater Yellowstone ecosystem. As tourism and outdoor recreation is integral to Bozeman’s economy, the ecological and economic effects of increased coal transport through the northern portion of the Greater Yellowstone ecosystem must be analyzed.

WHEREAS, any environmental analysis of these proposals must consider the negative long-term effects of burning huge volumes of sub-bituminous coal. Domestic demand for sub-bituminous coal from the Powder River Basin has been rapidly declining due to more stringent emissions standards and access to cheaper and cleaner fuels. Coal exports from the Powder River Basin will permanently shape global energy markets. With access to cheap, abundant PRB coal, countries in Asia will be induced to build a new fleet of coal-fired power plants capable of burning the more corrosive, higher-alkaline coal. These new plants, with a minimum thirty-year life span, will lock in reliance on coal from the Powder River Basin and forestall the transition to cleaner energy sources in these developing markets.

WHEREAS, the City of Bozeman Community Climate Action Plan, adopted by the Bozeman City Commission on March 28, 2011, states: “Scientific evidence clearly tells us that the Earth is warming, and that anthropogenic (man-made) causes are influencing this trend. That was the conclusion of the second scientific assessment of the United Nations Intergovernmental Panel on Climate Change (IPCC) in 1988 and reinforced by the third and fourth scientific assessments by the IPCC submitted in 2001 and 2007. In 2007 the IPCC concluded, ‘The balance of evidence suggests a discernible human influence on global climate.’”

Now therefore be it resolved that the Bozeman City Commission requests that environmental reviews of these proposals consider the effects on the City of Bozeman.

Be it further resolved that the Bozeman City Commission requests that the Army Corps of Engineers conduct a comprehensive Programmatic Environmental Impact Statement that includes an analysis of not only the direct impacts but also the indirect and cumulative environmental impacts, including the impacts on Montana communities, from all proposed coal ports in the Pacific Northwest.

Be it further resolved that the City Commission of Bozeman requests that the U.S. Army Corps of Engineers hold a public scoping hearing in Bozeman, Montana .

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