Obama adopts policy to offset environmental harm

OREANDA-NEWS. November 06, 2015.  Oil producers, coal mines and wind farms could face tough new requirements to avoid harm to the environment under guidance the White House sent yesterday to the federal agencies that oversee development on most US federal lands.

President Barack Obama directed agencies to require, at a minimum, "no net loss" of natural resources in mitigation policies when authorizing development on federal lands or approving other activities. Agencies' should pursue net benefits for natural resources, the guidance said, and prefer environmental compensation that occurs in advance.

The "no net loss" standard would represent a tougher stance than in the past. Federal agencies previously have tried to avoid or minimize adverse impacts to natural resources such as wetlands, endangered species and ecosystems. But regulators can still approve actions that will be disruptive to the environment, as long as they consider them and try to mitigate harm.

Republican lawmakers faulted the new policy over concerns that it would push investment and development away from public lands. Obama is "throwing the principle of multiple-use of our nation's federal land out the window," US House Natural Resources Committee chairman Rob Bishop (R-Utah) said yesterday.

The new standard could be problematic for the energy industry in part because of ambiguity about what "no net loss" means. There could also be practical difficulties and costs of meeting this goal, particularly if an agency decides to require a developer to achieve environmental benefits before a project's harmful effects occur.

"The big problem with mitigation is people do not know what it is going to be," Beveridge & Diamond environmental attorney Jamie Auslander said. "When you are planning a project you want to know how much it will cost."

The guidance will apply to the Interior Department, which oversees energy leasing on federal lands, as well as the Agriculture Department, the US Environmental Protection Agency, the National Ocean and Atmospheric Administration and the Defense Department — which includes the US Army Corps of Engineers.

If Democrats lose the White House in 2016, a Republican could undo the guidance and remove the no net loss standard. But implementing the standard now could have a lasting effect on the culture of career employees at federal agencies, said Beveridge & Diamond attorney and former Bureau of Land Management employee John Cossa.

The guidance could help some in industry by creating uniformity in what mitigation standard agencies apply when making decisions, said Environmental Working Group's Eric Holst. He said the guidance could also increase the use of "mitigation markets" that allow trading of the environmental benefits of projects.