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. 
First came the news that even a recent Supreme Court win wasn’t enough to save the Atlantic Coast pipeline. … More
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 pa
rty. 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
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.
First,… More
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.
First,… More
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
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:
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:
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
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