White House Council on Environmental Quality Moves Updates to National Environmental Policy Act Implementation Rule
On Monday, January 30, 2023, the White House Council on Environmental Quality (CEQ) sent to the Office of Management and Budget (OMB) Phase 2 of its proposal to revise the National Environmental Policy Act (NEPA) implementing rules released under the prior administration. Litigation surrounding the prior administration’s rules is stayed pending CEQ’s ongoing efforts. OMB review is a necessary prerequisite before CEQ can publish any new rule in the Federal Register and follows release of Phase 1 of CEQ’s implementing rules last April, which the administration described as restoring pre-2020 requirements for agencies to assess direct, indirect, and cumulative effects of proposed actions under NEPA.
Council on Environmental Quality Partially Restores National Environmental Policy Act Provisions
The U.S. Council on Environmental Quality (CEQ) published a Final Rule regarding implementing regulations of the National Environmental Policy Act (NEPA) on Wednesday, April 20. As anticipated, the CEQ’s final version is nearly identical to the earlier Proposed Rule and revises three separate NEPA provisions that CEQ identified as posing significant near-term interpretation or implementation challenges for federal agencies. These three provisions include purpose and need, 40 C.F.R. § 1502.13; agency NEPA procedures, 40 C.F.R. § 1507.3; and the definition of “effects” or “impacts.” Ultimately, CEQ’s Final Rule abandons revisions the agency made to NEPA regulations in 2020 and returns certain aspects of NEPA review to the former approach. CEQ noted that this revision is the first of two phases, so additional NEPA regulatory revisions are expected later this year. (more…)
FERC Rolls Back its Recently Enacted Policy Statements on the Certification of New Natural Gas Infrastructure
The Federal Energy Regulatory Commission (FERC) announced on March 24, 2022, that it will delay enacting any changes to its existing policies on the authorization or certification of interstate natural gas pipeline infrastructure under Sections 3 and 7 of the Natural Gas Act. Two policy statements FERC issued on February 18, 2022, in Docket No. PL18-1 and Docket No. PL21-3 (collectively, the 2022 Certificate Policy Statements) have now been deemed “drafts” that are subject to further comment. Initial comments will be due on April 25, 2022, with reply comments due on May 25, 2022. One of the two policy statements, which had been deemed “interim” but given immediate legal effect on February 18 prior to being relabeled a “draft” on March 24, had an initial comment date of April 4, 2022, which has now been extended to the aforementioned dates. Sidley provided a detailed summary of the changes implemented in the 2022 Certificate Policy Statements in a prior client alert and Energy Brief. (more…)
Ninth Circuit Approves U.S. Fish and Wildlife Service’s Barred Owls vs. Spotted Owls Experiment
On March 4, 2022, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of the U.S. Fish and Wildlife Service (FWS) in Friends of Animals v. U.S. Fish and Wildlife Service and FWS’ experimental plan that authorizes certain individuals to kill barred owls, a species of owls that has encroached on the northern spotted owls’ habitat. Primarily in the Pacific Northwest, the northern spotted owl has been listed as a threatened species under the Endangered Species Act (ESA) since June 26, 1990. 55 Fed. Reg. 26114. On December 15, 2020, FWS released its 12-month finding for the northern spotted owl that precluded reclassifying the species from threatened to endangered. (more…)
Climate Change Takes Center Stage in FERC’s Updated Policy on the Certification of New Natural Gas Infrastructure
On February 18, 2022, the Federal Energy Regulatory Commission (“FERC”) announced for the first time that it will consider a proposed natural gas infrastructure project’s impact on climate change as part of its public interest determination under sections 3 and 7 of the Natural Gas Act (“NGA”). A proposed project’s environmental effects, including reasonably foreseeable greenhouse gas emissions that may be attributable to the project and the project’s impact on environmental justice communities, now will become part of FERC’s balancing test for whether a project is: (1) required by the public convenience and necessity (“PCN”) under NGA section 7; (2) or in the public interest under NGA section 3. FERC’s prior PCN policy prioritized economic factors to define public need. Environmental effects, while considered under the NGA, were addressed primarily under the National Environmental Policy Act (“NEPA”). (more…)
Ninth Circuit Lifts Injunction in Response to Company’s Pleas to Meet Construction Deadlines
The U.S. Court of Appeals for the Ninth Circuit recently lifted a preliminary injunction in Fallon Paiute-Shoshone Tribe, et al. v. U.S. Dep’t of Interior. The plaintiffs had challenged construction of the Dixie Meadows Geothermal Utilization Project, which is expected to help Nevada achieve its renewable portfolio requirement and would include two geothermal plants, at least 18 geothermal wells, and approximately 50 miles of transmission lines over a 2,000-acre plot of public land. (more…)
Fourth Circuit Vacates Mountain Valley Pipeline Approval
On Tuesday, the U.S. Court of Appeals for the Fourth Circuit vacated, for the second time, the record of decision issued by the U.S. Forest Service and Bureau of Land Management allowing the Mountain Valley pipeline to cross three and a half miles of the Jefferson National Forest in Virginia and West Virginia. (more…)
Bureau of Land Management Announces Plans to Assess Greenhouse Gas Emissions for Oil and Gas Lease Sales
On October 29, 2021, the U.S. Bureau of Land Management (BLM) announced that state offices will solicit feedback from the public this week on proposed oil and gas lease sales to be held in early 2022 through draft environmental assessments. In addition to analyzing the effects of lease sales on air and water quality, wildlife habitats, and community impacts, these environmental assessments will also analyze greenhouse gas emissions on a national scale, including the social cost of carbon. (more…)
Western District of Virginia Dismisses Challenge to Trump-Era NEPA Rule as Unripe
On June 21, 2021, the U.S. District Court for the Western District of Virginia dismissed a lawsuit by environmental groups challenging a Council on Environmental Quality (CEQ) July 2020 rule changing how agencies undertake National Environmental Policy Act (NEPA) reviews. Filed in June 2020, Wild Virginia et al. v. Council on Environmental Quality et al. alleged that CEQ’s rule violated NEPA and the Administrative Procedure Act (APA) and asked that the rule be vacated. Because other federal agencies have not yet drafted the procedures implementing the rule and might never do so under the Biden administration, the court concluded that the challenge was not ripe.
FERC Climate Change Concerns to Delay Five Pending Natural Gas Pipeline Projects
On May 27, 2021, the Federal Energy Regulatory Commission (FERC) indicated that it would increase the timeline for making a decision on five pending applications for Natural Gas Act (NGA) Section 7 certificates of public convenience and necessity when it issued notices of intent to prepare an environmental impact statement (EIS) to each of the project sponsors. Each of the applications concern pipeline expansion projects that were the subject of environmental assessments (EAs) performed by FERC staff. The notices state that the new EISs will tier off of the existing EAs and will be limited in scope to assisting FERC in its consideration of the subject projects’ contribution to climate change in the FERC decision-making process.