S5E32: Hiding Big Projects in Small Pieces

[00:00:00] Chris Clarke: This episode is made possible by listeners just like you, and by 

[00:00:05] CMC Ad: Copper Mountain College is proud to sponsor this episode of 90 Miles From Needles, the Desert Protection podcast.

[00:00:24] Chris Clarke: You know the frustration when environmental regulation keeps you from doing the things you love, whether it's mining coal or sending crude oil through thousand-mile pipelines, or even building a data center next to a national park. Local residents and environmental do-gooders, and sometimes even the government itself, stand in your way and insist that you come up with detailed descriptions of the harm your project is allegedly going to do.

[00:00:47] Chris Clarke: Meanwhile, the bank sends you nasty notes and your subcontractors grow cobwebs. What do you do? Why not consider segmentation? With segmentation, you need not account for all the environmental damage your project is going to do. Instead, you can just look at the environmental impact of the parking lot, and then the lights that go in on the parking lot, and then painting the stripes in the parking lot.

[00:01:11] Chris Clarke: You get the picture. With segmentation, you can break your project up into tiny little morsels that appear unrelated, each having only minimal environmental impact. Ask your politician about segmentation.

[00:01:26] Chris Clarke: Professional developer on a closed permitting process. Do not attempt without legal counsel. Segmentation may violate state or federal environmental law. Serious side effects may include public outrage, dried-up springs, diesel exhaust, litigation, injunctions, and repeated use of the phrase "arbitrary and capricious."

[00:01:37] Chris Clarke: Past permit approval is no guarantee of future construction. Offer void where prohibited by federal law. Segmentation does not reduce environmental harm. It merely reduces the amount appearing in any one document. For constructions lasting more than twelve months, consult your politician. 

[00:01:57] Joe Geoffrey: You think the deserts are barren wastelands? Think again 

[00:02:06] Joe Geoffrey: It's time for 90 Miles From Needles, the desert protection podcast

[00:02:18] Chris Clarke: Thank you, Joe, and welcome to 90 Miles from Needles, the desert protection podcast. I'm your host, Chris Clarke, and this is a bit of a challenging topic we're gonna tackle today 'cause it's the sort of thing that makes a lot of folks' eyes glaze over. But I'm gonna do my absolute best to break it down into terms that regular people who haven't passed the bar exam will understand. 

[00:02:40] Chris Clarke: We're talking about a method developers use to avoid the obligation to have a project's environmental impacts assessed thoroughly. It's a really common practice. We have abundant examples of it that we could point to, and when you explain it in plain English like I'm gonna try to do, it makes very little sense.

[00:03:01] Chris Clarke: It's quite clearly a dodge. I'll shed some light on this very shortly. But first, a couple things. One is that we've had no new donors since September 8th. If you wanna lift our spirits after that dry spell, you can go to 90milesfromneedles.com/donate and make a donation of a frequency and amount that makes sense to you.

[00:03:20] Chris Clarke: Even a dollar a month helps us plan, and we are incredibly grateful when we get it. Also, we are getting closer to our deadline for applications for the Fellowship for Desert Reporting. If you go to thedamn.org/fellowship, you'll see a description of the fellowship there. We're offering a $1,250 stipend to people who have a desert story to tell in one medium or another.

[00:03:44] Chris Clarke: We have an emphasis on audio, obviously, 'cause we're a podcast, but we're willing to talk with you about other ways, too. And you can find out more, and there's a link to the application form on the page, which, as I mentioned last week, that link now works. The things that happen when you have one person responsible for all of this stuff.

[00:04:03] Chris Clarke: I apologize for it not working before, but it's been working for the last week and a half. thedamn.org/fellowship gets you there. Please consider applying, even if you're pretty sure you don't qualify, 'cause you may well be wrong.

[00:04:58] Chris Clarke: It is really hard to find a better illustrative example of segmentation than the Cadiz Northern Pipeline. Here's the context. In 1997, a company called Cadiz Inc. floated a plan with their partner, Metropolitan Water District of Southern California, to tap the groundwater on thirty-four thousand acres of East Mojave land that Cadiz owned.

[00:05:19] Chris Clarke: The goal was to sell that water to Southern California communities. Now, the objections to the Cadiz project are so numerous, it would take several episodes to detail them all properly. But for that first round back in 1997, Cadiz and the Metropolitan Water District were attempting to navigate project analysis under the National Environmental Policy Act, or NEPA.

[00:05:38] Chris Clarke: That's the federal law that requires big projects like that to produce environmental impact statements and related documents. In the course of the NEPA process, the US Geological Survey examined Cadiz's hydrological claims. Those claims were basically that the amount of water they were planning to pump out of the ground, fifty thousand acre feet a year on average, would be replenished fairly quickly.

[00:06:00] Chris Clarke: The USGS challenged those claims, saying that natural recharge of the aquifer from rain and snow in the desert was between a tenth and a twentieth of what Cadiz and its contractors had proposed. Despite that, the Interior Department approved the environmental impact statement for Cadiz and offered a right of way for a water pipeline across BLM land.

[00:06:20] Chris Clarke: But that projection from the USGS of just how much water was actually gonna be able to be pumped from the East Mojave disillusioned the Metropolitan Water District, which decided to end its partnership with Cadiz. There were lawsuits involved, but basically, the economics of it just didn't pencil out for the Met.

[00:06:36] Chris Clarke: They were gonna spend millions of dollars to get way less water than they had imagined. But Cadiz didn't give up. They had learned their lesson. Sadly, their lesson was avoid federal environmental review. Over the next fifteen years, Cadiz rebranded its project and made an arrangement with a nearby small-scale railroad to put a pipeline on the railroad's right of way, arguing that a nineteenth century railroad law allowing railroads to do whatever they needed to do on their rights of way without new permitting from the federal government.

[00:07:09] Chris Clarke: Cadiz argued that that railroad law made their pipeline exempt from BLM analysis. Sadly for Cadiz, in 2015, the Obama administration said, "You are misinterpreting that railroad law. You are going to go through NEPA." There have been back and forths with subsequent administrations, but Cadiz seems to have put the railroad pipeline on the back burner.

[00:07:28] Chris Clarke: Instead, in December 2020, Cadiz won approval from the outgoing first Trump administration for a northern pipeline route, which would take an unused oil and gas pipeline, retrofit it, and then allow Cadiz to use that pipeline to ship water from its wells in East Mojave to the California Aqueduct. The BLM authorization was challenged in court.

[00:07:51] Chris Clarke: In the course of my last job, I was one of the people that did so. Now, the BLM had maintained in this particular instance, and Cadiz went along with it, that retrofitting a pipeline so that it could carry water from a series of wells in the eastern Mojave to California water companies didn't have any relationship to Cadiz wanting to pump water and then pump it through that pipeline.

[00:08:13] Chris Clarke: Cadiz had attempted to segment NEPA analysis of its project, potentially allowing the project to proceed without any other NEPA analysis. By focusing only on the impact of conversion of the pipeline and not what the pipeline was being converted for, Cadiz was hoping to sidestep environmental review.

[00:08:30] Chris Clarke: Why did the BLM go along with it during the first Trump administration? That may have something to do with the fact that David Bernhardt was Interior Secretary for a time during that administration. David Bernhardt being in the employ of the Cadiz company through his law firm, Brownstein Hyatt Farber Schreck.

[00:08:47] Chris Clarke: But then the first Trump administration went out of office, not as smoothly as most administrations do. The Biden administration came in, and the Interior Department under Biden did a one-eighty and asked the court to order it to redo the decision to grant that access. That was really good news, but as you might expect, that reversal was subject to its own reversal. 

[00:09:09] Chris Clarke: In July of 2026, just a few months ago, the Bureau of Land Management gave Cadiz a fifty-year right of way for conversion and operation of the Northern Pipeline. And in doing so, they did not analyze the effects of the groundwater pumping project that the pipeline would make possible. Two Mojave Desert national parks and a national monument, a landscape of immense importance to local tribes and local non-Native people, all potentially at risk.

[00:09:36] Chris Clarke: Days after the BLM approved that right of way, the Center for Biological Diversity and the Sierra Club filed one lawsuit. My former employer, the National Parks Conservation Association, along with the Native American Land Conservancy, the Chemehuevi Indian Tribe, and the Fort Mojave Indian Tribe also sued to challenge the approval. 

[00:09:53] Chris Clarke: And what happens with that set of lawsuits is anyone's guess at this point. But if Cadiz prevails, this will be a successful use of segmentation to avoid environmental scrutiny, a textbook case.

[00:10:25] Chris Clarke: I first learned about segmentation in a context in which it was called something else. Under the California Environmental Quality Act, which is the state's equivalent of NEPA, breaking up a project into tiny pieces to avoid full environmental consideration of the entire project is called piecemealing.

[00:10:41] Chris Clarke: It's the same concept. When I first learned of it, I was working freelance as a press liaison contractor for the environmental law firm Earthjustice, and Earthjustice was representing Communities for a Better Environment, West County Toxics Coalition, and the Asian Pacific Environmental Network in suing the city of Richmond, California.

[00:11:00] Chris Clarke: They sued in 2008, and the reason was that city's approval of an upgrade for the local Chevron oil refinery. That refinery and Chevron, the corporation, are both dominant forces in Richmond politics. The city approved the upgrade in 2008. The frontline community groups filed suit relatively quickly. Among other things, they charged that the project description was inadequate, that it improperly deferred greenhouse gas mitigation required by California law, and that it treated a related hydrogen pipeline as a separate project.

[00:11:33] Chris Clarke: This was a charge of piecemealing, or segmentation if you stick to the federal terminology. It was pretty clear to us that Chevron wanted the upgrade to allow them to process heavier and dirtier crude, which would have been potentially catastrophic for the neighbors in fence line communities.

[00:11:47] Chris Clarke: Communities faced with refining heavier crude would have been contending with increased greenhouse gas emissions and particulate matter and aerial sulfur pollution, selenium and mercury pollution And Chevron didn't do itself any favors either. The environmental report that Chevron drafted and that Richmond approved denied outright that the project would enable processing that heavier crude.

[00:12:09] Chris Clarke: But it described the upgrades as a response to needing to process increasingly heavier oil. And Chevron also made a filing to the Securities and Exchange Commission that described processing heavier crude as a central purpose of the upgrade. That inconsistency did not work well for Chevron. A lower court found for the plaintiffs on all counts, but Richmond appealed.

[00:12:33] Chris Clarke: The segmentation finding by the lower court did not survive the appeals process. The appeals court did agree that the report explained the upgrades inadequately, and that the City of Richmond had to do the greenhouse gas mitigation plan before they gave final approval to the refinery upgrade. But the pipeline which would carry hydrogen to other places for industrial use was not something the refinery upgrade depended on. 

[00:12:56] Chris Clarke: They could have done it without that hydrogen pipeline. There is proper segmentation, that's segmentation that makes logical and logistical sense, and there is improper segmentation. Now, that's an important distinction. Improper segmentation involves connected projects that depend on one another, that you can't do one without the other.

[00:13:16] Chris Clarke: And if you do one, you're committing to the other. Despite losing on the piecemealing charge, the ruling in CBE versus Richmond was really inspiring, a fantastic example of frontline communities getting together and working hard to try and keep their communities from being even more impacted. Community groups have sued Chevron since, and forced payment of hundreds of millions of dollars in fees to mitigate the damage that Chevron is doing to the City of Richmond.

[00:13:44] Chris Clarke: My hat is off to them, and I'm glad to be able to tell you this story as an example of segmentation. After the break, I'll bring you one more story about segmentation. Don't go away. We'll be right back.  

[00:13:59] CMC Ad: Copper Mountain College is a proud sponsor of 90 Miles from Needles, the Desert Protection podcast.

[00:14:04] CMC Ad: Located in Joshua Tree in the Mojave Desert, Copper Mountain College serves the communities of the high desert with a broad range of programs, from desert studies and the popular Wildland Fire Academy to nursing, EMT, water technology, and many more programs. Copper Mountain College provides direct transfer programs to CSU and UC universities, as well as career technical education.

[00:14:26] CMC Ad: Learn more at www.cmccd.edu. Go Fighting Cacti. 

[00:14:34] Chris Clarke: This week's offering from our friend nature recordist Fred Bell is of the dawn chorus at Sabino Canyon in Tucson

[00:16:03] Joe Geoffrey: Listening to 90 Miles From Needles, the desert protection podcast. GPS is a wonderful tool. It helps you get stuck in beautiful surroundings. 

[00:16:15] Chris Clarke: Before we get to our last example, it's important to note that the Trump administration has been hell-bent on gutting NEPA in whatever way they can get away with, and to that end, they have hamstrung the Council on Environmental Quality, which since the Carter administration has been in charge of putting out NEPA regulations that apply to the entire federal government In April of last year, the Trump administration removed uniform CEQ regulations, including the framework around what are called connected actions.

[00:16:46] Chris Clarke: That move took effect in January. Connected actions are parts of a larger project that depend on one another, and therefore will probably need to be considered together in an environmental review. Not doing that can be considered segmentation. So connected actions are what segmentation tries to pull apart.

[00:17:04] Chris Clarke: The changes at CEQ don't technically change the responsibility of federal agencies. The rules governing environmental review have changed, but federal agencies are still obligated to follow NEPA, and the procedures each agency uses to implement their NEPA obligations remain intact. And since the uniform federal rules have been removed and the Supreme Court has given agencies much more room to decide where one project ends and another begins, it is quite likely that we will see more examples of segmentation, and it's even more important in that case for us to know how to identify it.

[00:17:44] Chris Clarke: Now, all these changes apply only to the federal government. California and other states that have rules against segmentation and environmental assessment are mainly unaffected by this. But everything we've said about the federal loosening of regulations notwithstanding, for our last example, let's look at a really important victory over segmentation in California under the state law, the California Environmental Quality Act, or CEQA 

[00:18:10] Chris Clarke: And this is an issue that we have covered on the podcast earlier this year, all the way back in January, the very first episode of the year, season five, episode one, link in the show notes. In that episode, we covered the process of a developer trying to get a data center approved in Imperial County in Southern California.

[00:18:29] Chris Clarke: The data center would be adjacent to the city of Imperial, which is a frontline community. We talked about a planning commission meeting in Imperial County that was fairly raucous, as many residents signified their absolute opposition to this data center. The specific item that the planning commission was discussing was a simple land merger.

[00:18:51] Chris Clarke: In order to start building the data center, they needed to merge five independently owned land parcels into a seventy-five acre site. The data center would have been almost a million square foot facility, a nine hundred and fifty thousand square foot facility, and merging the parcels was a critical first step in permitting this facility The developer suggested to the county that the merger could proceed under existing zoning without project-level review under the California Environmental Quality Act. 

[00:19:24] Chris Clarke: In that December planning commission meeting, people in opposition made the point that the lot merger needed environmental review of the entire project because it was quite clearly only being considered in order to make the data center happen. The merger was therefore illegal piecemealing under CEQA.

[00:19:43] Chris Clarke: In April, the county supervisors approved the merger of the parcels, agreeing with the developer that that merger could proceed under existing zoning without project-level CEQA review. The City of Imperial, which is not to be confused with the County of Imperial, along with the Sierra Club, filed suit to challenge that approach.

[00:20:04] Chris Clarke: In September, a court ruling overturned the lot merger approval and required an environmental impact report, or EIR, which is the CEQA version of the environmental impact statement required by NEPA. The judge said that the EIR must consider all aspects of the data center's development. Judge Brooks Anderholt found that the county had improperly approved the lot merger without reviewing the whole project, and the judge specifically cited grading, roads, electrical infrastructure, construction, and operation of the data center as things that needed to be assessed before the merger could go through.

[00:20:41] Chris Clarke: In other words, the court agreed with the Sierra Club and the City of Imperial that the county had piecemealed the data center project. And in one particularly useful sentence in the ruling, the judge said, "Agencies may not divide one integrated development into smaller pieces to avoid environmental review."

[00:20:58] Chris Clarke: End quote. Now, that ruling doesn't prohibit the project. It's an important thing to keep in mind. The ruling merely requires that the project go through full CEQA analysis with an environmental impact report, and that is a win because it provides opportunity for people to have more input to register their objections and their concerns, and importantly, it also slows the project down by perhaps two years, which gives opponents more time to organize against it.

[00:21:29] Chris Clarke: Nearby communities have not been standing still as these lawsuits proceed. The City of Imperial has placed a moratorium on data centers within its borders. Nearby Calexico adopted a permanent citywide data center ban on September sixteenth with a thirty-day delay before it takes effect, so two weeks from now The local community of Brawley declined to enact a proposed temporary moratorium and is instead working on data center zoning regulations.

[00:21:57] Chris Clarke: Calipatria is considering a permanent ban. Now, if Cadiz, discussed earlier, is potentially a textbook case of the developer using segmentation to avoid full environmental review, then the Imperial County data center issue is a textbook case of quite the opposite, of activists using the charge of segmentation or piecemealing to win full environmental accounting of a potentially destructive project.

[00:22:23] Chris Clarke: In our last episode, we discussed our new project, Desert Dispatch, which is working to set up community events on data centers, and they are working to set up such an event in Imperial County, and once that gets nailed down, we will let you know. The developer has said he intends to challenge the piecemealing ruling and continue advocating for the project, but the people of Imperial County are very impressive in their opposition and their tenacity, and they're also fed up with being treated like they don't matter.

[00:22:54] Chris Clarke: And those are pretty much ideal circumstances for a big destructive project proposed by an outside person to get tossed into the dustbin of history, or at least that's my hope

[00:23:32] Chris Clarke: Well, if you're anything like me, you're gonna need to go and just look at the horizon for 20 minutes after hearing all that. But really appreciate your patience, and do check with us about that Imperial County event. It promises to be really worthwhile. We have had a bit of cooler weather coming down the heels of Hurricane Polo, which sideswiped us here in the Morongo Basin.

[00:23:56] Chris Clarke: It hit the rest of the deserts east of the Mojave. Sure hope you're all staying safe and, to the extent possible, dry. The good news, I think it's entirely good news, I'm not sure. Actually, let me check today's news. I'll put you on hold for just a second. I'll be right back

[00:24:33] Chris Clarke: Well, I was gonna say the flooding on the Rio Grande has been good news. It's been full of water pretty much from Albuquerque all the way down through Texas. And it looks as though I need to temper that a little bit 'cause there has been some property damage to places in Southern New Mexico as well as in the El Paso area on both sides of the border.

[00:24:52] Chris Clarke: Ciudad Juarez. A little bit of road flooding. Some people have had damage to their houses, and that really sucks. I have not seen any reports of border wall construction equipment being swept downriver, but I still have my fingers crossed. Sometimes news is slow to spread. In any event, damage and personal suffering notwithstanding, and I certainly don't wanna minimize that, it's good to see some water in that stretch of the Rio Grande.

[00:25:21] Chris Clarke: When I was in Southern New Mexico a couple of years ago, I got out of the car in the community of Mesilla, right up next door to Las Cruces, and I went for a walk trying to find the Rio Grande. I wanted to get some audio of the water flowing, and I couldn't find any water. So this sounds pretty good. I wish it didn't impact people that are just trying to make ends meet, but every storm does that.

[00:25:49] Chris Clarke: And now for probably the least appropriate segue I've ever used on this podcast, but the vultures are migrating. Turkey vultures were in the sky around the studio this morning as we arrived. Probably three dozen of them. This is the time of year where they come down from the California coast and angle along the San Andreas Fault, generally keeping to the desert side of the mountains.

[00:26:14] Chris Clarke: Beautiful to see. It's one of those reminders of time of year that's just a lovely thing. Hooray for the cleanup crew. Enjoy your southern winter vacation. Remember, we are still taking applications for the Fellowship for Desert Reporting, thedamn.org/fellowship. And we are always grateful for your donations at 90milesfromneedles.com/donate.

[00:26:43] Chris Clarke: Getting ready to go to the Chihuahuan Desert Conference in El Paso November 4 through 6. Turns out I'm making a presentation there, so that should be fun. Just diving into PowerPoint for the first time in a couple of years. I'm one of those people that almost routinely refuses to have any text at all on my PowerPoint slides.

[00:27:03] Chris Clarke: I think pictures do more coherent talking than a list of bullet points a lot of the time. And there's no lack of great photos of the desert to share. Take care of yourselves. We'll be back with a new episode next week. And until then, Jack the giant German shepherd and I will see you at the next Watering Hole.

[00:27:28] Joe Geoffrey: And that brings us to the end of this episode of 90 Miles From Needles, the desert protection podcast. You can find show notes for this episode along with links

[00:27:43] Joe Geoffrey: and background at 90milesfromneedles.com. We're also on social media. You can find us on Facebook, Instagram, Bluesky, and Threads. Just search for 90 Miles From Needles. And if you'd like a more direct line, you can reach us on Signal at Hey90MFN.67.

[00:28:04] Joe Geoffrey: If you'd like to support the show, you can make a donation of whatever size and frequency feels right to you at 90milesfromneedles.com/donate. Listener support is what makes this podcast possible. Our voiceover is by Joe Geoffrey. Podcast artwork is by Martine Monchuk. Nature sounds are recorded by Fred Bell.

[00:28:27] Joe Geoffrey: Our theme song, Moody Western, is by Brightside Studio with additional music licensed from independent artists. 

[00:28:38] Chris Clarke: Additional music in this episode is by PremiumBeat

[00:29:36] Joe Geoffrey: A production of the Desert Advocacy Media Network

[00:29:58] Chris Clarke: Has this ever happened to you? You're enjoying a desert road trip. The mountains are beautiful, and you can see more than 100 miles away. You've counted a dozen kinds of cactus, three golden eagles, and huge patches of something you'd like to stop and identify if the person behind you would stop tailgating.

[00:30:13] Chris Clarke: And then your passenger says, "There's nothing out there." You may be suffering from aridignoritis, a nervous system condition that can result in anxiety, high blood pressure, depression, digestive upset, and fistfights. But you don't have to weather aridignoritis on your own. 90 Miles From Needles is the best way to control your aridignoritis.

[00:30:34] Chris Clarke: By taking a convenient, easy dose once a week, you can regain the confidence you need to respond with a hearty, "Well, actually..." Desert plants, desert wildlife, groundwater, public lands, and the desert rats who care about them, all delivered via your mobile device. Ask your podcast app about 90 Miles From Needles.

[00:30:51] Chris Clarke: Results may vary with rainfall. Side effects may include a sudden, strong affection for snakes, hyperthermia, dehydration, sunburn, cactus-related lacerations, lost hats, flat tires, strong opinions about the spelling of the word Mojave, strong opinions about the pronunciation of the word saguaro, and repeated use of the phrase, "It's not a wasteland." 

[00:31:03] Chris Clarke: Don't listen to 90 Miles From Needles if you're allergic to 90 Miles From Needles. Happy people shown in this ad may not represent true sufferers of aridignoritis. Testimony made by unpaid actor. Do not taunt 90 Miles From Needles. If misconceptions last more than 24 hours, consult your optician.