05 Dec Update on Litigation Challenging Scope of Environmental Review for Northern Pipeline Right-of-Ways
On Friday December 3, 2021, the United States Bureau of Land Management (“BLM”) filed in U.S. Federal District Court a motion for voluntary remand in two cases challenging the adequacy of environmental review for BLM’s December 2020 approval of an assignment of an existing right-of-way under the Mineral Leasing Act (MLA) and a grant of a new right of way over the same land under the Federal Land Management and Policy Act (FLPMA) that expressly incorporated the conveyance of water. Plaintiffs in the cases are led by Sierra Club, National Parks Conservation Association, and the Center for Biological Diversity, which were all parties to the unsuccessful challenges to the Cadiz Water Project permits in State Court.
The current cases focus on the federal environmental review completed by BLM when it assigned the existing MLA right of way to Cadiz and granted the FLPMA right-of-way authorizing water to be conveyed through the pipe over federal land. Conveying water in the pipeline does not require any disturbance of the public land of any kind. Approximately 58 miles of the pipeline’s 220-mile route cross federal lands managed by BLM, with the balance non-public lands.
The Company is a real party in interest in the case, after being permitted to intervene in August, and, in accordance with the Court’s briefing schedule, will file its opposition to the motion and defend the right of way grants in a reply brief in January 2022. A hearing on the motion is expected in March 2022 following briefing by all parties. Any remand for further environmental review must be ordered by the Judge.
The Company’s ownership rights in the pipeline are not at issue in the litigation and the Company maintains ownership and operational rights in the line. These cases also have no bearing on the Company’s existing rights to conserve groundwater and manage the groundwater basin at Cadiz to make available 2.5 million acre-feet over 50 years for beneficial uses, authorized in the Cadiz Water Project CEQA environmental documents and County groundwater management plan.
The 220-mile Northern pipeline, when fully converted to carry water instead of natural gas, will have utility separate and apart from the CEQA-approved Cadiz Water Project. Development of the pipeline conversion project will proceed as the lawsuit continues.
Community Groups Support the Pipeline Conversion Permit
“While no single solution can solve California’s water crisis and serve all communities in need, our leaders and policy makers can encourage innovation and the prioritization of meeting the Human Right to Water. Repurposing infrastructure that is no longer needed for oil and gas is a strategy that can benefit many communities and adds the potential for new access in underserved and isolated communities. We urge you to continue to support the innovative use of this pipeline for water and do all you can to ensure communities can continue to explore the potential to utilize it to improve water access for those in need.” – Adan Ortega, Jr., Executive Director, CalMutuals
“Many California communities – particularly disadvantaged communities and communities of color – do not have equal access to a reliable or clean water supply. In times of drought, they also suffer disproportionately from higher rates and shortage … As more petroleum products pipelines go out of service, the conveyance of water and other renewable energy sources in these pipelines can create new access to infrastructure and economic development for the communities we serve.” – Jose L. Barrera Novoa, State Director, California LULAC and Jon P. Preciado, Business Manager, Southern California District Council of Laborers
“Historic droughts are hitting communities across the Southwest that do not have the infrastructure to handle such conditions. More than one million Californians currently lack access to safe and reliable drinking water. The disparities in access and the inequalities exacerbated by lack of infrastructure will only get worse in the coming years if action is not taken. (We) urge BLM to ensure that the use of this pipeline will not be subjected to any future delays.” – Terry O’Sullivan, General President, Laborers International Union (LiUNA)
“Our constituents are worried about the reliability of their water supplies, because of the seriousness of the current drought and projections of increases in frequency and intensity of future droughts due to climate change. The pipeline presents a new, innovative opportunity to further augment water access opportunities for California communities. We urge you to reject any efforts to delay or disrupt the potential use of this pipeline and to continue to support the right-of-way permits, including in any future Court proceedings.” – Congressmen Tony Cardenas (D-CA-29) and Jim Costa (D-CA-16)
“Saying the Administration wants to remove barriers for disadvantaged communities to access funds for clean water infrastructure, while at the very same time erecting yet another barrier to accessing clean water infrastructure for California’s most vulnerable communities is concerning and inconsistent. It is our hope that this fumble on clean water, climate change and racial inequality is temporary and not cause for great concern.”Jose L. Barrera Novoa, State Director, California LULAC
“The federal government should consider that a pipeline like this may also potentially be used for in-pipe hydropower generation and broadband distribution, and must fight any precedent that would signal that the repurposing of fossil fuel pipelines for the movement of needed clean power and clear water in underserved communities is not supported by the Biden Administration’s BLM….Rebuild and other community groups in California have called, written and emailed the Department of the Interior and the Bureau of Land Management multiple times over the last four months seeking an opportunity to discuss the urgent need for quick action on an innovative project that would permit a fossil fuel pipeline to carry water supplies to desperate communities in the State. Based on the Court filing, it appears we were ignored.” – Jon Switalski, Executive Director, Rebuild SoCal Partnership
“We need the support of the federal government to ensure solutions can be available, especially innovative solutions such as the conversion of an existing fossil fuel pipeline to water conveyance, which would limit community and environmental disturbance yet deliver needed water supply. …We urge the Biden Administration to keep the commitments it has made to expanding equity and opportunity in America’s underserved communities and defend in Court the right-of-way permits your agency rightly granted for the Cadiz pipeline conversion project. “ – Robert V. McDonald, President, OC Black Chamber
“We strongly urge the Bureau of Land Management to work with the Department of Justice to defend against legal efforts seeking to remand and redo the permits, a process that could slow down the smart re-use of this pipeline. The Hispanic communities we serve are disproportionately impacted by lack of water access in California and would be harmed by any backsliding of this policy.– Mario Rodriguez, Chairman, Hispanic 100 Policy Committee
“Conversion of the pipeline would provide job opportunities and critically needed new water infrastructure access for more than 20 state-recognized disadvantaged communities along the pipeline’s route. The addition of this new pipeline asset in Southern California could also provide fresh ways to manage the state’s water and groundwater resources by interconnecting new water providers previously limited in their supply options.” – Donna Duperron (Chair), David Fleming (Founding Chair) and Tracy Hernandez (Founding CEO), Los Angeles County Business Federation – BizFed
“Just as President Biden announced that the first wave of funds from the recently passed bipartisan infrastructure package is being distributed to states in need of water infrastructure repairs and upgrades, his Department of the Interior has asked a Federal Court to unwind permits for an innovative water infrastructure project that could quickly transport water supplies to rural small and disadvantaged communities. These are the same communities that for decades have suffered from underinvestment in safe, reliable water supplies.” Dave Sorem, P.E., Engineering Contractors Association, Past Chairman of Rebuild.