On September 21, 2023, the Biden administration outlined plans to expand federal agencies’ consideration of the social cost of carbon—a metric for the economic cost of each additional ton of carbon dioxide emitted to the atmosphere. This announcement tilts the balance of cost-benefit analyses in favor of activities that reduce greenhouse gas emissions, and it could have widespread effects for entities that receive federal funding or are subject to federal regulation.… More
Category Archives: environmental impact assessment
Last week, Inside EPA (subscription required) reported that the Texas Commission on Environmental Quality has basically informed EPA that EPA may not promulgate guidance on cumulative risk assessments because of questions about its legal authority to require CRAs.
If EPA plans to interpret such environmental regulations as providing EPA with the authority to require that states consider CRAs in its decision making, including CRAs that may include nonchemical stressors,… More
Yesterday, the plaintiffs prevailed in the Montana climate litigation. Time will tell whether the decision will end up being seen as a watershed moment or just a blip. In trying to answer that question, it does seem worth briefly reviewing what the case was actually about and what the decision says.
First, it’s important to acknowledge that the decision’s formal reach is limited. … More
Proposed NEPA Rules Address Climate Change, Environmental Justice, and Efficiency of Environmental Reviews
On July 28, 2023, the Council on Environmental Quality (CEQ) proposed reforms to the National Environmental Policy Act (NEPA) regulations governing how federal agencies review the environmental effects of major federal projects. The proposed rules follow amendments to NEPA itself that were enacted in June 2023 through the Fiscal Responsibility Act of 2023, which addressed, among other things, the federal debt ceiling.… More
The Social Cost of Greenhouse Gases Is Increasing — But Is Uncertainty Over the Measurement of Climate Impacts Artificially Depressing the Number?
Yesterday, Climatewire (subscription required) released a peer review letter on EPA’s Social Cost of Greenhouse Gases (SC-GHG), which got a fair bit of press last year, because EPA’s metric was $190/ton, even though the Biden administration was using the $51/ton figure originally developed by the Obama administration. The peer reviewers’ views can be distilled down to two major points:
- It’s a really solid piece of work that provide a solid technical foundation for the SC-GHG.…
Biden-Harris Administration Publishes Priorities for Permitting Reform to Build Clean Energy “Faster, Safer, and Cleaner”
Yesterday, the Biden-Harris administration outlined in a fact sheet its priorities for permitting reform to accelerate the build-out of America’s energy infrastructure “faster, safer, and cleaner.” The fact sheet provides an endorsement of the Building American Energy Security Act of 2023, establishes several major objectives for permitting reform, provides several recommendations to streamline federal permitting processes, and urges Congress to include the objectives and recommendations as part of bipartisan permitting reform legislation.… More
Yesterday, the Bureau of Land Management announced that it has given final approval to the TransWest Express transmission line, a 732-mile project that will move electricity from a large wind farm in Wyoming to an interconnection point near Las Vegas. Most of the electrons will ultimately provide power to California.
Last week, Judge Donald Malloy vacated the Environmental Assessment for the Bull Mountains Mine No. 1 in central Montana. Judge Malloy had already vacated the EA once; when the 9th Circuit affirmed Judge Malloy’s decision that the EA violated NEPA, it remanded the case for new findings as to whether vacatur would be appropriate.
The default rule is that when agency action has been struck down,… More
Does Environmental Review of Projects Needed for a Net-Zero Economy Lead to a Death By a Thousand Cuts?
Earlier this week, the decision in Bartell Ranch v. McCullough generally supported the Bureau of Land Management’s review under NEPA and related statutes of a lithium mine near Thacker Pass, Nevada. If approved, Thacker Pass would be the largest lithium mine in the United States. The decision and the entire review of the mine are important, given how controversial large mining projects can be and how important lithium and other minerals are to building a zero-emission economy.… More
After more than a year of work, MassDEP has proposed regulations that would require applicants to perform cumulative impact analysis prior to issuance of certain air emissions permits. The regulations were required by the environmental justice provisions of the 2021 Climate Roadmap Act.
The requirement to perform a CIA will apply to any person seeking a comprehensive plan approval in or within one mile of any environmental justice community as well as to any project requiring a comprehensive plan approval that is within five miles of an EJ community,… More
On Friday, I posted about a decision invalidating BLM Resource Manage Plans for failure to comply with NEPA. My caption was “NEPA Is Still Going to Pose an Obstacle to Leasing Public Lands for Fossil Fuel Extraction.” Little did I know how prescient I was, because later on Friday, Judge Brian Morris – the same judge who invalidated the RMPs – went farther and reinstated the moratorium on leasing of public lands for coal mining that had been implemented by then-Secretary Jewell in 2016. … More
Last month, Oakland Mayor Libby Schaaf wrote to the Federal Highway Administration, stating that Oakland “is suffering from a crippling housing and homelessness crisis.” Furthermore, she complained that:
Addressing this crisis requires flexibility and creativity. … Federal environmental responsibilities, such as the National Environmental Policy Act (NEPA), can slow, discourage, or prevent these creative solutions. We must streamline the NEPA process as much as possible,… More
CEQ Finalizes Phase I NEPA Regulations: Undoing Trump’s Regulations Is One Thing; Modernizing NEPA Is Another
Earlier this week, the Council on Environmental Quality promulgated its Phase I rule amending the NEPA regulations. The final rule largely implements the proposed rule, though with some minor changes. Since the final rule so closely tracks the proposal, I won’t repeat the analysis that I already provided regarding these changes.
I will briefly repeat my concern that Phase II of the NEPA regulations is going to be very important. … More
Take my predictions with a grain of salt, because I still remember saying that Ronald Reagan would never fool enough voters to get elected, but it seems very likely at this point that Maura Healey will be the next Governor of Massachusetts. That makes her release of a climate plan a matter of some significance.
My take is that it is extremely ambitious,… More
The Fifth Circuit has stayed an order blocking Biden administration use of the “Interim Estimates” of the social cost of greenhouse gases. The Court did not leave much doubt that the administration will prevail on the merits.
Issuance of a stay is based on criteria very similar to those regarding entry of an injunction. The two most important are the likelihood of success on the merits and whether the person requesting the stay will suffer irreparable harm if a stay is not granted. … More
The D.C. Circuit Again Requires FERC to Consider the Environmental Impacts of Downstream Use of Gas: How Big a Deal Is It?
Last week, the District of Columbia Court of Appeals again rejected a FERC NEPA review for failure to assess the climate impacts resulting from the downstream use of natural gas supplied by a gas pipeline upgrade project approved by FERC. The Court found that FERC was too quick to conclude that those downstream impacts could not reasonably be evaluated.
How big a deal is this? … More
With the third quarter coming to a close and year-end reporting just around the corner, public companies should be giving careful thought to the evolving landscape for climate-related disclosures. While it did not promulgate any new rules in 2021 regarding these disclosures, the SEC has been actively commenting on climate change disclosures, and new rules are almost certainly on the way.
So CEQ has proposed to amend the NEPA regulations in order to eliminate some of the changes made by the Trump Administration in 2020. Important changes include:
- explicit consideration of indirect impacts
- renewed emphasis on consideration of cumulative impacts
- elimination of the requirement that there be “a reasonably close causal relationship” between a proposed action and a potential impact,…
Environmental justice is clearly an idea whose time has – finally – come. The need to find the intersection between the search for racial justice and efforts to save the planet is undeniable. If we get it right, we’ll be at least partially solving two problems at once. First, mobilizing underserved communities in the fight against climate change and other environmental problems increases the number of voices arguing for aggressive action,… More
On August 3, the District of Columbia Court of Appeals held that FERC could not avoid use of the social cost of carbon in assessing the impacts of natural gas projects by arguing that “there is no universally accepted methodology.” Given the growing recognition of the significant role FERC is going to have in combatting climate change, it’s an important decision.
FERC acknowledged that construction and operation of the projects under review would “contribute incrementally to future climate change impacts.” However,… More
Earlier this Month, Judge James Boasberg, who had previously ruled that the easement allowing construction of the Dakota Access Pipeline must be vacated due to a failure to comply with NEPA, nonetheless declined to issue an injunction requiring that the pipeline cease operations. The Court’s rationale was clear and straightforward. The Court of Appeals ruled that Judge Boasberg could not enjoin use of the pipeline without finding that all elements of the four-factor test for an injunction had been met. … More
The President today formally announced that the United States was pledging to reduce its emissions by 50% from 2005 levels by 2030. The announcement isn’t a surprise, but that doesn’t lessen its importance. So large a reduction will be a heavy lift, particularly in a federal system where many states are still not exactly with the program.
So how will this Administration get us on a path to 50%?… More
It’s not always the case, but my speculation about the Massachusetts climate bill was correct. On Friday, Governor Baker signed it into law. If I haven’t succeeded in making this clear previously, I want to emphasize that this is a really far-reaching piece of legislation. It commits Massachusetts to a very aggressive timetable for reducing GHG emissions. It species a number of specific policies,… More
In January, when Governor Baker vetoed the Legislature’s effort to go big on climate, my colleague Zach Gerson made clear that the bill was not even “mostly dead.” I am pleased to say that Zach’s diagnosis was correct. The climate bill is very much alive.
Last week, the District of Columbia Court of Appeals affirmed vacatur of the easement issued to the Dakota Access Pipeline by the Army Corps of Engineers. As I noted last month in connection with the Biden Executive Order concerning Keystone XL, no one in the industry is rushing out to plan any new pipelines and no one in the financing business is rushing out to provide the cash to build any new pipelines. … More
Yesterday, President Biden signed an Executive Order on Tackling the Climate Crisis at Home and Abroad. It’s even more comprehensive than last week’s order. Indeed, my main reaction to the order isn’t to any of the specific provisions. It’s one simple realization – he really means it. And I think that’s the point. There is no question at this point that President Joseph Robinette Biden,… More
Among the important provisions of President Biden’s Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis is the requirement to review and revise estimates of the social cost of carbon (and nitrous oxide and methane). The order establishes a working group, co-chaired by the Chair of the Council of Economic Advisers, the Director of OMB, and the Director of the Office of Science and Technology Policy. … More
Yesterday, President Biden hit the ground running on environmental policy, issuing an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. There’s a lot in it, so I think I’m going to have to take it in blog-sized bites. Let’s start with Section 6, in which he revoked the Presidential permit for the Keystone XL pipeline.
Why start here?… More
Over the past four years, while the Trump Administration did everything possible to ignore climate change, optimists continued to find progress at the state level. And while President-elect Biden has put together an A-team on climate, Massachusetts, at least, seems determined to show that the states will continue to lead – even if they now have a partner at the federal level.
Two weeks ago,… More
Since I noted earlier this week the announcement by ConocoPhillips that its “ambition” is to reach net-zero carbon for its own operations by 2045-2055, it seemed appropriate also to note that BLM has now approved the Willow Master Development Plan, which will authorize ConocoPhillips to produce almost 600 million barrels of oil over 30 years in the National Petroleum Reserve in Alaska.
Last week, Judge James Jones declined to issue a preliminary injunction that would have prevented implementation of the Trump Administration’s NEPA revisions. Judge Jones’s explanation was fairly sparse. He merely noted that the plaintiffs had not made the required “clear showing” that they are likely to succeed on the merits, though he did indicate that testimony, including expert opinion, is likely to be necessary.
I can’t say I’m shocked,… More
In 2015, I noted that the then-Governor of Alaska had decided that it was necessary to increase drilling for oil in Alaska to raise the money necessary to cope with the impact of climate change. I suggested that Governor Walker’s solution to the problem of funding climate adaption might be considered ironic.
Welcome to the Department of Irony Department, also known as Alaska Climate Adaptation Rev 2.0.… More
On Wednesday, the D.C. Circuit Court of Appeals stayed the injunction requiring the shutdown of the Dakota Access Pipeline. It’s a victory for the operator, Energy Transfer LP, simply because it lives to fight another day. From a legal point of view, however, I wouldn’t take that much comfort from the decision.
The basis for the stay was that the District Court did not make explicit findings on the need for an injunction. … More
CEQ has finalized revisions to the NEPA regulations. I don’t have too much to add to my post on the proposed rule back in January. NEPA needs reform. These regulations, however, are not the reform NEPA needs.
The rule largely tracks the proposed rule. It is worth noting, however, that, contrary to this administration’s frequently cavalier attitude toward judicial review, they have made a few tweaks to increase the likelihood that the rule will survive review. … More
I don’t like to speculate, so I won’t say that July 6, 2020, was the beginning of the end of fossil fuel infrastructure in the United States. I will say, with apologies to Judith Viorst, that it was a Terrible, Horrible, No Good, Very Bad Day.
Last week, Chief Judge Brian Morris of the Federal District Court for the District of Montana vacated an “Instruction Memorandum” issued by BLM in 2018 – and also vacated numerous oil and gas leases issued in reliance on the 2018 IM. The 2018 IM changed the way BLM interpreted land management plans issued by BLM in 2015 in order to preserve sage grouse habitat, and avoid the necessity for listing the sage grouse as endangered under the ESA.… More
Greenwire reported today that two medical sterilization facilities in Georgia that had been shut down or had production limited due to concerns about exposures to ethylene oxide would be allowed to increase operations in response to the need for sterilized medical equipment to address the COVID-19 pandemic. The result is not surprising and, one assumes, appropriate in the circumstances.
It does highlight, though,… More
Ever since President Nixon visited China, significantly contributing to a thawing of the Cold War, the phrase “Nixon in China” has referred to any situation where a leader makes a policy move that would have been more expected by a leader of the opposition party. The notion is that such surprising acts of statesmanship can unlock political gridlock.
Unfortunately, Nixon in China moments are notable precisely because they are so rare. … More
Last week, Federal District Court Judge B. Lynn Winmill granted a preliminary injunction to various NGOs, barring the Bureau of Land Management from implementing amendments BLM had made in 2019 to protection plans for the sage grouse promulgated by BLM in 2015. It makes compelling reading. In 29 pages, it pretty much summarizes everything the Trump administration has done in the environmental arena, and how courts have reacted.… More
Earlier this week, the 10th Circuit Court of Appeals partially reversed a district court decision, and ordered the Bureau of Land Management to vacate the NEPA approvals and permits it had issued authorizing the drilling of a number of fracked wells in the Mancos Shale, near Chaco Canyon in New Mexico. The decision is not earthshattering – pun most definitely intended! – but there are a few features of note. … More
In 2016, DOI Secretarial Order 3338 imposed a moratorium on new coal leases on federal land until BLM prepared a programmatic environmental impact statement intended to address, among other issues, the impact of coal leasing on climate change.
Times do change. In 2018, DOI Secretarial Order 3348 eliminated the moratorium and the requirement to prepare a PEIS. Litigation ensued.
Last week,… More
Last week, a federal judge once more rejected the Environmental Assessment for the expansion of the Spring Creek Mine in Montana. The case does not really break any new ground, but it does add to the growing number of cases in which courts have rejected federal action approving a variety of large facilities related to energy production in one way or another. The crux of this case was the failure of the EA to consider downstream,… More
Earlier this month, the D.C. Circuit Court of Appeals issued a decision that is a must-read for anyone who will be needing at some point to relicense an existing hydroelectric facility. The short version is the status quo may no longer be good enough and dam operators may have to improve on existing conditions in order to succeed in relicensing. At a minimum, facility operators will have to take the cumulative impacts of dam operation into account in performing environmental assessments under NEPA required for relicensing.… More
Last week, FERC rejected arguments that the Environmental Assessment for the New Market Project should have considered upstream and downstream climate impacts. It also announced as policy that it would not in the future analyze:
the upstream production and downstream use[s] of natural gas [that] are not cumulative or indirect impacts of the proposed pipeline project, and consequently are outside the scope of our NEPA analysis.… More
BLM Loses Another One: Resource Management Plans for Coal Leasing Areas Are Sent Back to the Drawing Board
Late last month, Judge Brian Morris granted summary judgment to plaintiffs on three claims alleging that the environmental impact analysis supported BLM’s Resource Management Plans for managing coal leases in the Powder River Basis were flawed. It’s a very thoughtful decision. Judge Morris rejected three of plaintiffs’ claims and did not provide the injunctive relief that they sought. Nonetheless, it’s an important setback for BLM and further evidence that courts are going to require more of BLM in assessing climate impacts associated with energy resource development.… More
President Trump’s infrastructure plan includes a number of important proposals. My initial reaction is consistent with my view of many of the President’s initiatives – he gives regulatory reform a bad name. We do need to reform the way we implement infrastructure projects in the US, but this President is not the one to lead the effort.
Here are some of the problems I see.
Last week, the 10th Circuit Court of Appeals reversed and remanded a District Court decision approving a decision by the Bureau of Land Management to approve new leases on mines that account for 20% of U.S. coal production. The decision is just the latest in a series of cases making clear that courts will not approve new – or renewed – energy production that does not appropriately address the impacts of a project on climate change.… More
Last week, a divided panel of the D.C. Circuit Court of Appeals ruled that FERC violated NEPA in failing to assess downstream greenhouse gas emissions resulting from construction of the Sabal Trail pipeline, part of the Southeast Market Pipelines Project. If the decision stands, it is going to have a very significant impact on review and development of gas pipelines.
(Full disclosure – Foley Hoag represents NextEra,… More
Earlier this week, the Judge Donald Malloy of the District Court for the District of Montana granted summary judgment to the Montana Environmental Information Center on several of its claims alleging that the Office of Surface Mining had violated NEPA in approving a modification of a mining plan to expand the Bull Mountains Mine No. 1. The decision is important for two reasons.
Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal. Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules. There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.… More
In one of the first acts of his presidency, Donald Trump signed an Executive Order entitled “Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects”, with a stated goal of streamlining environmental permitting for infrastructure projects.
The order establishes a process by which the Chairman of the Council on Environmental Quality may be petitioned to designate an infrastructure project as “high priority”. … More
Last week, Judge Michael Fitzgerald granted summary judgment to the plaintiffs in a citizen suit alleging that BLM’s Environmental Impact Statement prepared to address whether to open certain lands in California to mineral development was inadequate. Judge Fitzgerald concluded that the EIS pretty much completely failed to address the potential risks of fracking and that, as a result, the EIS did not comply with NEPA.… More
DOE and DOI Release the New National Offshore Wind Strategy: Perhaps Prosperity Is Finally Just Around the Corner
Last Friday, DOE and DOI issued an update of their National Offshore Wind Strategy. It’s a moderately aggressive strategy, seeking to deploy at least 86 gigawatts of offshore wind by 2050. The report highlights both the significant opportunities and potential for growth and also some of the remaining potential roadblocks.
On the plus side:
- The combination of fossil retirements and demand growth provide significant incentive for offshore wind development.…
In an interesting decision last week, the 9th Circuit Court of Appeals rejected challenges to BLM’s decision to issue a right-of-way permit for Tule Wind’s plan for a wind farm southeast of San Diego. It’s not exactly earthshattering, but it is a helpful decision both for decisionmakers reviewing wind farm applications and for wind farm developers. Here are some of the highlights:
- BLM’s inclusion of DOI’s goal under the 2005 Energy Policy Act to increase nonhydropower renewable energy on federal lands as part of the “purpose and need”…
Last week, Judge John Agostini ruled that the Natural Gas Act preempts Article 97 of the Massachusetts Constitution, which otherwise would have required a 2/3 vote of the Legislature before Article 97 land could be conveyed to Tennessee Gas Pipeline Company for construction of a gas pipeline to be built in part through Otis State Forest.
Not only did Judge Agostini conclude that Article 97 is preempted,… More
As we discussed last summer, the Judge Lucy Koh of the Northern District of California ruled that the Fish and Wildlife Service’s 30-year programmatic permit for incidental takes of bald and golden eagles from wind farms violates NEPA. This week, FWS bowed to reality and revised the permit to change the term to five years.
No word on any efforts by FWS to provide the necessary analysis under NEPA that might justify a 30-year term. … More
Earlier this month, the White House released a Presidential Memorandum on “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment.” If that portentous title isn’t enough to make developers quiver in their boots, how about this first line?
We all have a moral obligation to the next generation to leave America’s natural resources in better condition than when we inherited them.… More
No Short Cuts Allowed: The FWS Must Comply with NEPA Before Extending Programmatic Take Permits to 30 Years
Earlier this month, the Judge Lucy Koh set aside the Fish & Wildlife Service’s decision to extend its programmatic permit for bald and golden eagle takes from five to 30 years. The extension was sought by the wind industry for the obvious reason that the uncertainty attached to a five-year permit makes financing a 20- or 30-year project very difficult. I agree with the concern and support the extension,… More
The U.S. Department of Energy (DOE) recently released a Draft Environmental Impact Statement (DEIS) for Northern Pass Transmission, LLC’s proposed 187-mile transmission line across the United States-Canada border in New Hampshire.
If approved, the line would have the ability to deliver 1200 MW of hydroelectric power from Quebec into southern New England—a potentially tantalizing amount of power for policymakers seeking to diversify the region’s generation portfolio and lower its GHG emissions.… More