Category Archives: NEPA

Does Offshore Wind Finally Have The Wind At Its Back? DOI Announces Plan For Largest Auction To Date

Earlier this week, DOI Secretary Jewell joined with Governor Patrick to announce plans to auction more than 1,000 square miles on the Outer Continental Shelf offshore Massachusetts for wind energy development. The auction, which will be implemented as four separate leases, pretty much will follow the form of earlier lease auctions:

• Bidders will be prequalified to participate in the auction

• The auction will include multiple factors, including non-monetary factors

• The winning bidder or bidders will have one year in which to submit a site assessment for the… More

How Powerful is the Endangered Species Act? Just Ask the Delta Smelt

The Endangered Species Act is a powerful tool for the protection of threatened and endangered species and their habitats.  Just how powerful was made clear last week when the 9th Circuit Court of Appeals largely reversed a trial court opinion and essentially sustained actions taken by the Fish and Wildlife Service to protect the delta smelt.  Delta SmeltThe “reasonable and prudent alternatives” identified in the Biological Opinion issued by the FWS will result in substantially less water being exported from northern California to southern California.

The decision is massive (153… More

The Federal Tail Should Not Wag the Non-Federal Dog: The Sixth Circuit Concludes that the Corps’ Review of Mountaintop Removal Projects Is Limited

The Sixth Circuit Court of Appeals has ruled, in Kentuckians for the Commonwealth v. Army Corps of Engineers, that the scope of review by the Army Corps of Engineers of § 404 permit applications for fills related to mountaintop removal mining is limited to impacts directly related to the filling operations that require a permit, rather than the overall impacts of the mining project.

The case concerned a mountaintop removal project by Leeco in Perry County, Kentucky.  Prior to issuing a § 404 permit, the ACOE performed its NEPA review, issuing a Finding of No Significant Impact after completion… More

The Ninth Circuit Addresses NEPA’s Goldilocks Problem: How Many Alternatives Are Just Enough?

One of the critical elements of NEPA is that project proponents must assess the feasibility and impacts of not only the preferred alternative, but also a range of alternatives.  However, there is a tension in NEPA, because it is widely understood that the proponent, and not either courts or opponents, get to define its own project.  On the other hand, the proponent may not define the project so narrowly that its preferred alternative is the only one remaining.

Earlier this week, in HonoluluTraffic.com v. Federal Transit Administration, the 9th Circuit Court of Appeals addressed this tension and made clear… More

BOEM Gives a Lesson on How Not To Survive NEPA Review

Last week, the Ninth Circuit Court of Appeals agreed with the plaintiffs that the Environmental Impact Statement issued by the Bureau of Ocean Energy Management to support oil and gas leasing in the Chukchi Sea was flawed.  Although the decision was split and the Ninth Circuit’s track record on appeal is less than perfect, I think that they probably got it right.  Moreover, the flaws identified by the court provide a useful lesson to agencies in performing environmental analysis of probabilistic outcomes.

The issue on which BOEM got reversed was its use of a 1 billion barrel estimate of… More

Surprise, Surprise, Surprise: An Agency Cannot Revise Regulations In a Consent Decree

In a decision that should not have come as a surprise to anyone, the 9th Circuit Court of Appeals ruled on Thursday, in Conservation Northwest v. Sherman, that the Bureau of Land Management and other agencies implementing the Northwest Forest Plan could not amend the NFP without complying with the procedural requirements of the Federal Land Policy Management Act.  The rationale of the decision should apply far more broadly than just the FLPMA, however.  It should apply to any action by any agency purporting to amend agency regulations that would otherwise be subject to procedural requirements, such as notice-and-comment… More

Can Wind Energy Serve As Baseload Power? The First Circuit Agrees with the NRC That, For Now, The Answer Is “Not Yet.”

In an interesting decision issued last Friday, the Court of Appeals for the First Circuit, in Beyond Nuclear v. NextEra Energy Seabrook, affirmed the decision by the NRC rejecting a challenge to Seabrook’s relicensing posed by a coalition of environmental groups.  The decision seems clearly correct, but raises an important policy issue that is likely to recur as renewable energy technologies advance, so seemed worth mention.

The issue in the case was that the environmental groups, known collectively as “Beyond Nuclear,” contended that the relicensing proceeding should include wind… More

Coming (Sort of) Soon To An Ocean Near You: 4 Gigawatts of Wind Power

As a follow-up to my post earlier this month on BOEM’s release of the Environmental Assessment for the Massachusetts Wind Energy Area, I just thought that I would note that, according to Daily Environment Report, Maureen Bornholdt of BOEM announced earlier this week at a public hearing on the EA that BOEM expects to start auctioning leases for the WEA by the fall of 2013. Of course, that’s just when the fun starts. Each lessee is going to have to do a full environmental review before construction even begins, so it will still be some time before we see electrons flow from the… More

Another Step Forward for Offshore Wind: BOEM Releases Its EA for the Massachusetts Offshore Wind Energy Area

ma-wea-noaa-06-05-12-12-2On Friday, the Bureau of Ocean Energy Management released its Environmental Assessment for the Massachusetts outer continental shelf offshore Wind Energy Area. The EA does not permit construction of any turbines. It merely provides the basis for issuance of leases, pursuant to which the leaseholders would have the authority to perform the necessary detailed environmental and feasibility studies to determine whether to proceed with construction of turbines.

According to Greenwire, Jack Clarke of Mass Audubon has already pretty much blessed the EA. While BOEM has proposed an alternative that would eliminate approximately 25% of… More

An Example of True Judicial Restraint: Judge Robert Chambers Affirms the Highland Mining 404 Permit

After my post on judicial restraint – and the lack thereof – in Texas v. EPA, the opinion issued last week by Judge Robert Chambers, in Ohio Valley Environmental Coalition v. United States Army Corps of Engineers, affirming the Corps’ § 404 permit for Highland Mining’s Reylas Surface Mine, seemed particularly notable. I cannot recall of similar example of a judge who was almost visibly restraining himself, issuing a decision that he plainly did not want to issue, for one reason: because he thought that the proper application of the law dictated the result, however distasteful to… More

More Developments in Off-Shore Wind: BOEM Releases ENF for Rhode Island and Massachusetts

Last week, I noted that the Bureau of Ocean Energy Management announced that it had identified an area for commercial wind energy leasing offshore Massachusetts. This week, BOEM announced the availability of an Environmental Assessment to support commercial leases in an adjoining parcel offshore both Massachusetts and Rhode Island.  (Couldn’t find a photo with good resolution.  The figure is obviously in the EA, but you can find a stand-alone map here.)

The scope of the EA is limited. Separate analysis, almost certainly to require preparation of environmental… More

BOEM Identifies a Wind Energy Area offshore Massachusetts: Will the Next Project Take Less Time Than Cape Wind?

offshore wind areasLast Wednesday, the Bureau of Ocean Energy Management announced that it has identified an area offshore Massachusetts for commercial wind energy development. BOEM narrowed the area somewhat from what had been proposed, based on certain wildlife concerns. Although the identification of the area as part of the Department of the Interior’s Smart from the Start program will allow expedited permitting, individual projects by lessees would be subject to NEPA.

One can only hope that this process will indeed result in the successful siting of large-scale commercial wind projects offshore. Solar energy… More

CEQ Issues Guidance For Streamlining NEPA Reviews: Can You Say “Content-Free”?

The Council on Environmental Quality has released it guidance on “Improving the Process for Preparing Efficient and Timely Environmental Reviews under the National Environmental Policy Act.” As far as I can tell, the guidance provides literally nothing on improving the process. It is instead a compendium of how wonderful the process already is in allowing and encouraging appropriate flexibility in complying with NEPA. I’m not sold.

In fairness, CEQ has a tough task here. It’s trying to satisfy everyone, including NGOs and environmental justice advocates, as well as project proponents. As I noted yesterday in my post on regulatory reform in Massachusetts, sometimes… More

One Small Step Forward For Mid-Atlantic Offshore Wind Development

offshore-wind-power-7259Yesterday, the Bureau of Ocean Energy Management issued a notice of availability for the Environmental Assessment it prepared in connection with the issuance of leases for wind energy development off the coast of New Jersey, Delaware, Maryland, and Virginia. The EA includes a Finding of No Significant Impact, or FONSI. In other words, BOEM concluded that the issuance of leases does not require a full blown Environmental Impact Report.

The EA also addresses the individual site assessment plans, or SAPs, that will have to be performed by… More

Is Massachusetts the NIMBY Capital of the World? What Will Be the Impact of the Wind Turbine Health Impact Study?

Yesterday, the “Independent Expert Panel” convened by MassDEP to review whether wind turbines cause any adverse health effects issued its report. I was pleased that the headline in the Boston Globe was that “Wind turbines don’t cause health problems.” Similarly, the Daily Environment Report headline was that “Massachusetts Study Finds ‘No Evidence’ of Health Impacts from Wind Turbines.” 

I hope that that’s the way the report will be read, but I’m worried. Perhaps I just have too many NIMBY-related scars. Whatever the reason, I am worried about the report’s statements that there

is limited epidemiologic evidence suggesting an association between… More

Has the Battle Begun? A Look at One of the Front Lines of the Adaptation Issue

A story in today’s Boston Globe makes clear that, at least in states where it is permissible to use the words “climate” and “change” in the same sentence, the battle over adaption may no longer be hypothetical. The neighborhood known as East Boston is one that might appropriately be described as having unfulfilled potential. Last month, at a Chamber of Commerce breakfast, Mayor Menino pledged to revive East Boston, specifically calling out five projects that have been on the drawing board for some time.

So what’s the problem? The problem is that East Boston is a waterfront community. Indeed, arguments have long… More

Dog Bites Man: Environmental Impact Edition

Casablanca36Earlier this week, Greenwire noted a Los Angeles Times story reporting that businesses are using the California Environmental Quality Act – California’s version of NEPA – as a tool of economic competition, trying to kill or delay projects for economic reasons. Much like Claude Rains, I am shocked, shocked, to find that there is strategic litigation going on here. In the past two years, I have defended multiple court cases and administrative hearings brought by a 10-citizens group against one particular client. Many of those claims have been premised on our… More

Go Ahead and Destroy the Environment; NEPA Won’t Stop You

Strawberry CanyonIt is, as the lawyers say, black letter law that the National Environmental Policy Act, or NEPA, is a procedural statute, which provides no substantive protection to the environment. It merely requires the appropriate level of assessment of the potential environmental consequences of federal action. Whether the action should be taken is outside NEPA’s purview.

Rarely, however, has this critical limitation on NEPA’s scope been stated so plainly as in yesterday’s decision in Save Strawberry Canyon v. U.S. Department of Energy, in which Judge Alsop of the Northern District of California… More

The Battle Over Guidance Is Joined Again: EPA Finalizes Its Mountaintop Removal Guidance

mountain_topThe fight about guidance and rules is in the news again. Yesterday, EPA finalized its guidance on Clean Water Act permitting with respect to mountaintop mining. As most of our readers know, EPA issued Interim Guidance in April 2010. In January 2011, in National Mining Association v. Jackson, Judge Reggie Walton, while denying plaintiff’s preliminary injunction, signaled that he thought that EPA’s Interim Guidance probably was a legislative rule that should have gone through notice and comment rule-making.

Judge Walton’s decision did not deter EPA, which finalized… More

Judicial Restraint in NEPA Cases: How Many Judges Allow “Unwise” Agency Action?

This week, in Webster v. USDA, Judge John Bailey of the Northern District of West Virginia rejected a challenge to the Environmental Impact Statement filed for a USDA flood control project. The decision is not particularly startling and does not break new ground, but it does serve as a reminder just how limited judicial review under NEPA is supposed to be – and just how often that limitation is honored only in the breach, by judges who don’t like particular projects or don’t want to be known as the judge who approved a particular project if something later goes wrong.

More

First Circuit Finds Coast Guard Violated NEPA in Attempt to Preempt Massachusetts Oil Spill Prevention Act

While not ones to unnecessarily toot our own horns, the First Circuit’s decision in United States et al. v. Coalition for Buzzards Bay et al. is worth a read. We (specifically, Buzzards Bay Guardian Jonathan Ettinger, Amy Boyd, and I) have been representing the recently-renamed Buzzards Bay Coalition in this case for a number of years and yesterday’s decision represents both a victory for the Coalition and an important First Circuit precedent with respect to the National Environmental Policy Act (NEPA).

In yesterday’s decision the First Circuit held that the Coast Guard failed to comply with NEPA when… More

Dog Bites Man: NEPA Reviews Are Getting More Complex

Stop the presses: According to the Daily Environment Report, EPA’s director of the Office of Federal Activities, Susan Bromm, has acknowledged that concerns about climate change and environmental justice are “contributing to the size, cost, and time-consuming nature of environmental impact statements….” Nonetheless, Ms. Bromm apparently asserted that these "analyses do not have to be overwhelming,” and she blamed, at least in part, agencies which “overreact to the fear of litigation.”

Not surprisingly, a speaker on the same panel from DOT felt otherwise. According to Helen Serassio, an attorney at DOT:

We’ve gotten to the point where they’re kind of… More

What’s Next for Carbon Capture and Storage?

In February, President Obama tasked the Interagency Task Force on Carbon Capture and Storage with the ambitious goal of overcoming the barriers to widespread, cost-effective deployment of carbon capture and storage (CCS) within the next 10 years.  As the first bold step, the 14-agency and executive department group released its findings in a report on August 12.

The report concludes that widespread cost-effective deployment of CCS will only occur if the technology is commercially available (i.e. scale-able and cost-effective) and a supportive national policy framework is in place to both fund and regulate it.  The task force believes… More

The Supreme Court Really Means It: Injunctions Are Not Automatic Under NEPA

Yesterday, the Supreme Court issued its decision in Monsanto v. Geertson Seed Farms, the big NEPA case before the Court this term. The District Court had struck down the decision by the Animal and Plant Health Inspection Service to completely deregulate roundup ready alfalfa (RRA). That decision was not actually under appeal. The appeal concerned only the scope of the injunction issued by the District Court, which precluded APHIS from issuing any kind of deregulation decision without completing an Environmental Impact Report (EIS) and similarly issued a nationwide injunction against planting of RRA… More

Patchwork or Preemption, Redux

Yesterday, Senator Lieberman (I -CT) confirmed that the climate bill that he, Senator Kerry (D-MA) and Senator Graham (R-SC) plan to announce next week will include preemption of state and federal initiatives, including EPA’s Clean Air Act authority.  Leaving aside the potential in his statement for the bill to also preempt state renewable energy and efficiency programs, the goal of predictability and one nationwide cap-and-trade system is an approach that we endorsed a few weeks ago, and one that H.R. 2454 also contained, albeit with a 5 year moratorium, rather than a complete preemptive ban.

But this stance on preemption is drawing fire from both sides… More

The CEQ Issues Draft Guidance on Consideration of Climate Change Under NEPA

Late last week, the CEQ issued its long-awaited draft Guidance on how to factor climate change into NEPA reviews. CEQ explicitly stated the draft is not effective at this time. CEQ will take comment for 90 days and “intends to expeditiously issue this Guidance in final form” after close of the comment period. Assuming CEQ does so, it will join several states, including California, New York, and Massachusetts, which already require that climate change be addressed in their state NEPA analogues.

The draft is very limited in scope at this point; CEQ may have decided that what is most… More

There Ain’t No Such Thing As A Free Lunch: You Choose, Renewable Energy or Endangered Bats

On Tuesday, District Judge Roger Titus issued an injunction against the construction of the Beech Ridge Energy wind project – 122 wind turbines along 23 miles of Appalachian ridgelines – unless the project can obtain an incidental take permit, or ITP, under the Endangered Species Act. Judge Titus concluded, after a four-day trial, that operation of the turbines would cause a “take” of the endangered Indiana Bat.

I’m not going to get into the details of the decision, though it certainly… More

Another Front in the Climate Change Battle: NEPA Reviews

Waxman-Markey. Boxer-Kerry. Public nuisance litigation. EPA regulation under existing authority. What’s next in the arsenal of weapons against climate change? How about including climate change impacts in reviews under NEPA?

In February 2008, the International Center for Technology Assessment, the Natural Resources Defense Council, and the Sierra Club petitioned the CEQ to “clarify” its regulations to require the assessment of potential climate change impacts in environmental reviews performed under NEPA. CEQ has not yet formally responded to the petition, but that hasn’t stopped noted environmentalist Senator James Inhofe (R. Okla.) from weighing in preemptively. Calling NEPA a “bedrock environmental statute,” Senator Inhofe has informed Nancy… More

Concerns About NEPA and the Stimulus: CEQ Is Here to Help

As we noted previously, in the face of efforts to include language in the stimulus bill exempting stimulus projects from the requirements of NEPA, Senator Boxer proposed what you can describe either as a compromise or a fig leaf. Section 1609 of the bill provides that NEPA reviews will be expedited and resources will be devoted to facilitate such expedited reviews. According to the Environmental Reporter today, CEQ is going to be providing guidance to federal agencies on how to conduct such expedited reviews.

Despite my normal skepticism about agency guidance documents, such guidance would almost certainly… More

Today’s Forecast: More Climate-related Litigation on the Horizon

We posted recently about the revival of EPA’s NSR enforcement program. Now, yet another shoe has dropped. The Center for Biological Diversity has announced the creation of the Climate Law Institute, the purpose of which is to use citizen law suits under existing laws to advance regulations intended to address climate change. The press release states that the Institute has $17 million in funding with which to pursue its mission.  

While that mission will focus on climate change, as its name implies, it will not be limited to litigation under the Clean Air Act. It was the CBD which led the… More

Massachusetts Takes Steps to Ensure That Stimulus Spending is Not Bogged Down in Environmental Reviews

It looks as though Massachusetts is going to at least try to avoid having lengthy environmental reviews create obstacles to spending its share of the federal stimulus package. A draft report prepared by the Commonwealth’s Permitting Task Force makes several recommendations which, if implemented, would indeed help to ensure that the money can get out the door and the shovels in the ground. Highlights include:

  • Allowing projects to proceed, at their own risk, during permit appeals.
  • Providing that appeals related to any stimulus projects would be heard in the permit session of… More

Continuing Developments on Environmental Reviews of Stimulus Projects

I have posted a few times recently about the tension between environmental regulation and economic development, particularly in the context of current efforts at devising a stimulus package in Congress. Yesterday, Congress rejected an amendment to the stimulus bill, offered by Senator John Barrasso (R-Wyo.), which would have required NEPA reviews to be completed within 270 days for projects funded through the stimulus. Projects not reviewed during this time period would have been constructively approved, i.e., the absence of NEPA review during the 270-day period would have resulted in a determination that the project had no significant… More

Is There a Conflict Between Environmental Protection and Economic Growth? Could Be.

It’s now de rigueur to say that there is no conflict between a healthy economy and a healthy environment. President-elect Obama said so himself as recently as December 15, when he introduced members of his environmental and energy team. Certainly, in a perfect world, where information is free and everyone agrees on the economic value to be placed on protecting environmental interests, that would be true as a matter of definition.

Unfortunately, we live in the real world and in the real world, there are often trade-offs to be made between economic growth and environmental protection. This critical tension was brought home… More