El Paso pressured to make WWP agreement public

Aug 27, 2010

One month into what is arguably the widest reaching public lands ranching crisis in recent memory, efforts are still ongoing to achieve a satisfactory outcome following El Paso Corporation’s agreement to give a total of $22 million dollars to support the Western Watersheds Project (WWP) and Oregon Natural Desert Association’s (ONDA) agenda of buying private base property and retiring grazing permits.

In a July 15 press release, ONDA announced they were dropping litigation against El Paso’s Ruby Pipeline project in exchange for approximately $8.5 million dollars from El Paso to bankroll a new "Greater Hart-Sheldon Conservation Fund" which will seek to purchase and retire grazing permits between the Hart and Sheldon Wildlife Refuges in Lake County, OR, and northern Nevada. Explained Brent Fenty, executive director of ONDA, "As a result [of the agreement], ONDA has decided not oppose construction of the Ruby Pipeline."

The Greater Hart-Sheldon Conservation Fund will receive approximately $7 million dollars from El Paso over a 10-year period. An additional $1.5 million dollars from the Sagebrush Habitat Conservation Fund, which received $15 million dollars from El Paso to promote Western Watershed’s agenda, is earmarked for Hart-Sheldon Fund projects, making Lake County, OR, the greatest single target for permit buyouts.

Both ONDA and WWP were pursuing legal action against Ruby Pipeline, but subsequently dropped their suits because of the financial arrangement.

The Ruby Pipeline is a 677-mile natural gas pipeline which, if completed, will stretch from Opal, WY, to Malin, OR. The $3 billion dollar project is being constructed by Ruby Pipeline L.L.C., a subsidiary of El Paso Corporation, of Houston, TX.

In an effort to ameliorate outrage among ranchers, El Paso Corp. has offered the grazing industry financial support to help re-establish a balance between ranching interests and anti-grazing groups, and to promote grazing as a use of public lands. As of Aug. 10, the Public Lands Council (PLC), a cattle industry group representing 13 western states, NCBA, the American Sheep Industry Association, and the Association of National Grasslands, and El Paso Corp. had agreed to move forward on a plan to establish a $15 million dollar endowment fund to "protect, enhance and preserve the public lands grazing industry," according to a joint press release. As of this time, though the fund has been approved in principle by a unanimous vote by the PLC Board of Directors, details remain to be hammered out. Particularly contentious is El Paso’s insistence that the monies from the endowment not be used for litigation purposes.

Not all parties, however, are convinced that PLC’s approach to the situation has been sufficiently demanding. On Aug. 12 a coalition of county commissioners from the nine counties along the pipeline route convened at a meeting at the Utah State capitol building to discuss resolution options. Representatives from El Paso Corp. and PLC executives were also present.

Demar Dahl, county commissioner from Elko County, NV, was appointed chair of the new Multi-County Coalition, representing counties along the pipeline.

Coalition members have elected to pursue their own approach to the Ruby agreement, independent of PLC. Explained Dahl, "I am in sympathy with the PLC, but that does not mean that I agree with that position of taking that money. What we decided as county commissioners was to just drive ahead with our own thing. I think that the PLC may be getting out in front of themselves a little bit there."

Key to the Coalition’s approach is the demand that El Paso make their agreement with WWP and ONDA public. As of now, no one except the parties to the contract have seen the actual content of the agreement. Thus far however, El Paso Corp. has demurred from revealing the agreement, emphasizing a confidentiality clause in the contract.

Ultimately, the Coalition is hoping El Paso can be persuaded to entirely reverse the agreement.

Although no official action was taken at the Aug. 12 meeting, the Coalition adopted by unanimous vote a five-point "statement of present position" on the Ruby Pipeline agreement with WWP and ONDA. Among the positions taken are a demand to see the agreement and a reservation of the right to legally challenge it, if the agreement provides for illegal activity. The document emphasizes that Lincoln County, WY, has a special right to see the agreement, due to its status as a "cooperating agency" in the Environmental Impact Statement (EIS) approval process. Further, counties have reserved the right to reconsider already issued conditional-use permits, based on review of the agreement.

A follow-up meeting of the Coalition on Sept. 9 has been scheduled in Salt Lake City, UT.

Meantime, the Coalition of Local Governments, a Wyoming group of county commissions and other political entities, filed on Aug. 18 a petition for review in the 9th Circuit Court of Appeals on behalf of its members and Lincoln County. They are challenging the Record of Decision which approved the construction of the pipeline, demanding that a supplementary EIS be created which takes into account the socio-economic and environmental impacts of Ruby’s agreement with WWP and ONDA, in particular, the impact of retiring grazing permits.

Because Lincoln County was a cooperating agency, it was an official party to the process of creating the final EIS that led to the approval of the Ruby project. It therefore has special status and can legally appeal the process.

Constance Brooks, of C.E. Brooks and Associates, Denver, is representing the Wyoming coalition.

"[Lincoln County] thought they were supporting a pipeline that was discussed and disclosed in the final EIS," Brooks explained. "But three days after the record of decision was signed, El Paso announced that [they had] established a $20 million dollar fund that will promote Western Watershed’s objectives of retiring livestock grazing permits. That was completely contrary to the description of the proposed action that Lincoln County had participated in for two years."

Although El Paso Corp.’s agreement with ONDA and WWP was private, Brooks maintains that the consequences of this agreement still should have been considered in the EIS.

"[The agreement] is still part of the proposed action. And under the National Environmental Policy Act (NEPA) an EIS must look at not just the federal action. It’s supposed to look at connected, or cumulative, or similar actions. In this case, there’s no question that the agreement with Western Watersheds and the subsequent retirement of livestock grazing permits is a connected action."

Adds Brooks, "It’s a procedure. And we’re all about procedure."

If the Wyoming coalition succeeds in their appeal, it could likely result in disclosure of the WWP/ONDA agreement. Seeing the agreement, and crafting a supplementary EIS would give Lincoln County an opportunity to submit comment that the retirement of grazing permits is contrary to county planning and policy.

Kent Connelly, a county commissioner from Lincoln County, emphasized the impact the agreement could have.

"On the agreement between Western Watersheds and El Paso, we didn’t have a seat at the table," said Connelly. "We did not get to submit input [concerning] what will happen if you remove grazing from the [pipeline] corridor ... or anywhere else. The removal of that grazing ... what impact does that have to my county?"

Ironically, although El Paso Corp.’s $22 million dollar handout was intended to avoid litigation, they now find themselves intervening not only in the Wyoming coalition’s petition, but also in a motion for injunction to stop construction on the pipeline that was filed Aug. 19 by the Arizona-based environmental group Center for Biological Diversity (CBD). CBD is claiming that the pipeline project does not adequately provide protection for a number of endangered fish species along the pipeline route.

It is also ironic that the ranching community, though outraged at El Paso Corp.’s back-room agreement with WWP and ONDA, has been and continue to be strong supporters of the pipeline project. Said Dahl, "I think all of the counties on the pipeline ... view it in a very positive light, and are in support of the project. All of us understand the importance of using our own natural resources."

That said, none of the counties appear willing to let ranching be a casualty of El Paso Corp.’s buyoff of anti-grazing interests.

Said Brooks, "El Paso keeps pointing to the amount of money that it will generate in the counties while it builds the pipeline. But much of that money will be temporary, whereas livestock grazing is an integral part, not only of the economy, but of the custom and culture. Everyone wants these multiple-use projects to succeed. But when you have one multiple user basically throwing another one under the bus, bad things happen." — Andy Rieber, WLJ Correspondent