Overnight Energy: Groups sue Interior over bird killing policy | Dem seeks probe into EPA blocking reporters from event | Report faults safety standards at Texas chemical plant

by Miranda Green and Timothy Cama - 05/24/18 6:09 PM ET

INTERIOR SUED OVER BIRD KILLING POLICY: A coalition of conservation groups is taking the Interior Department to court over its policy excusing “incidental” killings of certain birds.

Groups involved in the suite include: Defenders of Wildlife, The Center for Biological Diversity and the National Audubon Society.

They are arguing that the Trump administration’s interpretation of the Migratory Bird Treaty Act contradicts decades of enforcement by Interior — and the law itself.

“The Trump administration’s meddling with the Migratory Bird Treaty Act threatens to reverse decades of progress to conserve birds that are essential to ecosystems, economies and our enjoyment of nature,” Defenders of Wildlife President Jamie Rappaport Clark said in a statement.

“On the centennial of this important law, we will do everything we can to protect migratory birds that are defenseless against the reckless actions taken by this administration,” she said.

“This rule will allow the death of even more birds, whether they’re landing on polluted ponds left uncovered by the oil and gas industry or have their nest trees cut down from underneath them. It’s tragic,” said Noah Greenwald, endangered species director at the Center for Biological Diversity.

Background: In the December memo, Daniel Jorjani, Interior’s principal deputy assistant solicitor, said that an Obama administration policy on the bird law was incorrect.

“Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed,” Jorjani wrote.

The policy means that wind energy companies, oil refiners and others won’t be held liable for bird deaths that were not deliberate.

More from the lawsuit itself: “The Memorandum, which has been severely criticized by former DOI and [Fish and Wildlife Service] officials from both Republican and Democratic Administrations, is contrary to the plain language and fundamental purpose of the MBTA and the treaties it implements, and it unlawfully and improperly reverses Defendants’ own long-standing interpretation and implementation of the Act. Such a sweeping reversal of longstanding agency interpretation and policy requires notice and comment rulemaking and compliance with the National Environmental Policy Act … none of which occurred here.”

Why it matters: For environmentalists, the December memo struck at the heart of the Migratory Bird Treaty Act and threatened about 1,000 species that are covered by it. They see this lawsuit as protecting a bedrock species conservation law.

On the other hand, companies affected by it have long argued that they shouldn’t be held liable for harming or killing birds when they didn’t mean to.

Happy Thursday! Welcome to Overnight Energy, The Hill’s roundup of energy and environment news of the moment. Memorial Day feels so close, as does the unofficial start of summer and everything that comes with it.

Please send tips and comments to Timothy Cama, tcama@digital-staging.thehill.com, and Miranda Green, mgreen@digital-staging.thehill.com. Follow us on Twitter: @Timothy_Cama, @mirandacgreen, @thehill

DEM WANTS PROBE INTO EPA BARRING REPORTERS: Rep. Dan Kildee (D-Mich.) is calling for an investigation into reports that the Environmental Protection Agency (EPA) blocked certain media organizations from attending Scott Pruitt’s chemical summit.

Kildee wrote to EPA Inspector General Arthur Elkins Thursday, calling for a “fair and thorough” investigation into whether the agency violated any statues or laws related to government transparency.

“I am very troubled by Administrator Pruitt and the EPA’s attempt to block access to taxpayer-funded meeting, either for journalists or members of Congress. Simply put, the public has a right to know what is happening in their government,” Kildee wrote.

Kildee represents Flint, Mich., which is still recovering from its major drinking water crisis.

EPA only let select reporters, including from The Hill, into a brief part of the two-day summit Tuesday, and a security guard allegedly shoved an Associated Press reporter. The agency later let reporters into the afternoon session that day, but not the Wednesday session.

Here’s more on his request.

And it’s personal for Kildee: Kildee said even his own staff wasn’t allowed in the Wednesday session.

Here’s the tweet that started it all:

“My staff was not allowed to attend today’s @EPA #PFAS summit, and I represent communities affected by drinking water contamination,” he tweeted Wednesday. “@EPAScottPruitt’s lack of transparency and willingness to deny access to Members of Congress and the media is deeply troubling.”

However, EPA’s director of ground water and drinking water Peter Grevatt said that the Wednesday session wasn’t intended for congressional staff, though Kildee’s aides were allowed to go to the Tuesday session.

“Both state and federal officials had the expectation that the second day of the Summit would be a government-to-government discussion between federal and state co-regulators who are working together to address this important issue,” he said in a statement.

Kildee, whose district includes Flint, Mich., was having none of it though. His staff says EPA didn’t alert his office about the summit until they personally asked to attend.

And in some non EPA news…

PROBE FINDS WEAK STANDARDS AT CHEMICAL PLANT THAT EXPLODED: An investigation into the explosion of a chemical plant during Hurricane Harvey last summer found that its safety plans failed on all counts and the plant did not properly prepare for the hurricane season.

The findings issued Thursday by the U.S. Chemical Safety Board (CSB) found that the Arkema plant in Crosby, Texas, didn’t properly account for big floods in its emergency plan and the overall safety standards were too weak, falling below industry standards.

The failure to account for the six-foot floodwaters from Hurricane Harvey was largely responsible for the explosion of the chemicals at the plant, the probe found.

The organic peroxide chemicals produced and stored at the plant must be kept below 32 degrees Fahrenheit to prevent them from decomposing and catching fire. When the facility lost power from the flooding, the backup cooling systems failed and the trailers flooded, causing the chemicals to catch fire.

“Our investigation found that there is a significant lack of guidance in planning for flooding or other severe weather events. Based on other government reports, we know that there is a greater likelihood of more severe weather across the country,” CSB Chairperson Vanessa Allen Sutherland said in a statement. “As we prepare for this year’s hurricane season, it is critical that industry better understand the safety hazards posed by extreme weather events.”

Click here for more on the investigation.

OUTSIDE THE BELTWAY:

Most Michigan voters want Enbridge’s Line 5 pipeline across the Straits of Mackinac shut down, Michigan Radio reports.

An administrative law judge in Pennsylvania ordered Sunoco to shut down its Mariner East pipeline in Chester County, the Philadelphia Inquirer reports.

Russian state-owned oil company Rosneft says it found a new oilfield in Iraq, the Moscow Times reports.

FROM THE HILL’S OPINION SECTION:

Mike Carr, executive director of New Energy America, criticizes the Trump administration for trying to convince millennials to support coal.

IN CASE YOU MISSED IT:

Check out Thursday’s stories …

-Dem lawmaker calls for investigation into EPA blocking reporters from event

-Safety board: Standards too weak at Texas chemical plant that exploded during Harvey

-House Dems request information from EPA on Pruitt’s legal fund

–Green groups sue Interior over bird protection rollback

-Democrat criticizes EPA over access to water summit

-EPA extends comment period on controversial science transparency rule

-NASA head: ‘No reason to doubt’ climate change science