Sage Grouse Protections Restored; Another Hasty Regulatory Rollback Is Rolled Back.

Last week, Federal District Court Judge B. Lynn Winmill granted a preliminary injunction to various NGOs, barring the Bureau of Land Management from implementing amendments BLM had made in 2019 to protection plans for the sage grouse promulgated by BLM in 2015.  It makes compelling reading.  In 29 pages, it pretty much summarizes everything the Trump administration has done in the environmental arena, and how courts have reacted.

First, there was regulatory action by the prior administration.  (And it’s worth an aside to note that the 2015 sage grouse plans were intended to protect the sage grouse without the burden of listing it as endangered under the ESA.)

Then, beginning early in the Trump administration, Secretary Zinke made clear he wanted to relax sage grouse protections.  BLM prepared and released six state-specific draft environmental impact reports, proposing to do so.  Even Scott Pruitt’s EPA commented that the draft EISs were inadequate and requested a cumulative analysis that crossed state boundaries.  BLM ignored EPA’s comments and finalized the EISs.  The Court rejected BLM’s NEPA analyses, found the plaintiffs likely to succeed on each of their claims, and enjoined implementation of the 2019 amendments.

Here are a few nuggets from the opinion:

Certainly, the BLM is entitled to align its actions with the State plans, but when the BLM substantially reduces protections for sage grouse contrary to the best science and the concerns of other agencies, there must be some analysis and justification – a hard look – in the NEPA documents.

The Final EISs were the first time the BLM announced it was removing the mandatory compensatory mitigation, and the public was never given notice or an opportunity to comment on those actions before they were taken.

And here’s my favorite:

The BLM had a duty to explain any “departure from prior norms.”  “[A]n administrative agency is not allowed to change direction without some explanation of what it is doing and why.”

That could serve as an epitaph to the Administration’s entire approach to all the regulations in existence when it took office.

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