On January 10, 2020, the Council on Environmental Quality (CEQ) published the long-awaited proposed rule to amend its regulations implementing the National Environmental Policy Act of 1969 (NEPA).  The statute, sometimes pejoratively referred to as a “paper-tiger,” requires a federal agency to take a hard look at the environmental impacts of certain proposed projects, but does not mandate any particular outcome.

The CEQ promulgates NEPA regulations and coordinates the other Executive branch agencies’ implementation of NEPA.  The CEQ originally adopted NEPA implementing regulations in 1978 and while it has issued over 30 guidance documents since, the rules have not been materially amended until last week.  The proposed rulemaking contains numerous revisions, reshuffles existing provisions and adds many new provisions, all aimed at speeding up infrastructure projects by reducing delays and paperwork during NEPA reviews.  For example, the proposal establishes a 75-page limit for environmental assessments (EAs) and a 150-page limit or, for proposals of unusual scope and complexity, a 300-page limit for environmental impact statements (EISs), and 1-year and 2-year time limits for review to complete these respective documents.  Today, an EIS can take up to 4.5 years to complete and averages 600 pages.

Among other significant changes, the proposal would modify how agencies review environmental impacts of their proposed actions.  The proposal dramatically revises the definition of “effects,” which traditionally has included a review and discussion of “direct, indirect, and cumulative effects,” by reducing it to one short paragraph and eliminating references to these three categories.  Per the proposed language, the effects should be “reasonably foreseeable” – an ordinary person’s standard – and have a reasonably close causal relationship to the proposed action or alternatives.  The agencies will not be required to consider effects that they have no authority to prevent, including those resulting from projects outside their jurisdictions.

The proposed “reasonably foreseeable” revision to NEPA is also particularly important for the proponents of pipeline projects, many of which have come under scrutiny for their upstream and downstream impacts from greenhouse gases (GHGs).  The proposal requests comments on whether it should codify elements of its Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions (84 FR 30097 (June 26, 2019)), which allows the use of GHG emissions from a project as a proxy for the direct and indirect effects of those emissions on the affected environment.  The effect of those emissions on environment under the draft guidance is based on a close causal relationship between the emission and the effect.  Recognizing the complexity of the issue, the proposal seeks comments on whether and how agencies should address GHGs in NEPA reviews.  Extensive comments on this issue are anticipated.

Of equal importance is CEQ’s incorporation of existing guidance that requires agencies to provide a detailed analysis of the reasonable alternatives to the proposed action, not “all” alternatives.  Reasonable alternatives, according to the revised definition, must be technically and economically feasible and meet the purpose and need of the proposed action.  Further, under the proposed rule, agencies need not analyze alternatives outside the jurisdiction of the lead agency.  The proposal requires the agency to solicit public comment on the completeness of the submitted alternatives, information, and analyses section of the draft EIS.  A new corresponding section in the draft and final EIS and record of decision (ROD) would provide a summary of the submitted information and alternatives, and the ROD would require the agency’s certification to serve as a “conclusive presumption” that it has considered submitted alternatives.

The proposed rule includes many changes in other important categories, which are summarized below.

NEPA Review & Documentation

  • No requirement to publish a draft EA for public review.
  • Clarifies that the lead agency is responsible for determining the purpose and need and alternatives in consultation with any cooperating agencies, as well as the schedule for environmental review, and resolution of disputes and other issues that may cause delays in the schedule.
  • Directs the lead and cooperating agencies to prepare a single EIS or EA and issue a joint ROD or FONSI when practicable.
  • Allows agencies to continue to use a categorical exclusion (CE) for projects where extraordinary circumstances would otherwise not allow the use of CE, as long as mitigating circumstances exist that would allow the proposed project to avoid the significant effects that create the extraordinary circumstances.
  • Allows an agency to adopt another agency’s EA in its FONSI and a different agency’s determination that a CE applies.
  • Provides that other documents or analyses under other environmental statutes, for example, the regulatory impact analysis, may serve as EIS’s functional equivalents and be sufficient to comply with NEPA. Although some judicial decisions have permitted using analyses under other environmental statutes (e.g., RCRA, CERCLA, etc.) to satisfy NEPA requirements, CEQ proposes to grant agencies discretion to extend this overlap to environmental analyses developed under other statutes.
  • Gives agencies greater flexibility to allow applicants and contractors to contribute information and materials to aid in the preparation of environmental documents, subject to agency evaluation.
  • Provides federal agencies with greater flexibility to “tier” their environmental documents or “incorporate by reference” other existing environmental studies and analyses.
  • Revises the definition of a “major federal” action to exclude non-federal projects with minimal federal funding/involvement.
  • Allows the scoping process to start before the agency publishes a Notice of Intent (NOI) alerting interested and affected parties to a project proposal. The increased flexibility afforded to agencies in issuing NOI will presumably provide agencies more flexibility in meeting the 1-year and 2-year timing requirements for EAs and EISs since these timelines begin at the NOI issuance.
  • Clarifies that supplementation of NEPA documents is only needed if there is a major federal action that remains outstanding and there are substantial changes to the proposed action or significant new circumstances or information become apparent. This is meant to clarify that there is a finality to agency review, and there is no “ongoing” major federal action that requires continuous supplementation.

Judicial Review

  • Revises the timing of judicial review from the filing of an EIS or FONSI to the issuance of a signed ROD or taking of another final agency action (the agency may designate the issuance of the EIS, EA, FONSI, or CE as its final agency action).
  • Adds a new § 1500.3(d), “Remedies,” which explicitly states that harm from the failure to comply with NEPA can be remedied by compliance with NEPA’s procedural requirements, and that CEQ’s regulations do not create an independent cause of action for violation of NEPA.

Public Participation

  • Requires that all comments be made as specific as possible. Although this language is not new, the proposed rule would require commenters to explain why the issue they raise is significant, reference specific pages of the draft EIS, and propose “specific changes.”
  • Requires that agencies consider only timely submitted comments (within 30 days). Untimely comments are considered “exhausted and forfeited,” making it harder to challenge issues not commented upon in a later proceeding.
  • Relaxes the agency’s response to comments requirement by relieving the agency from the need to provide a detailed response explaining why comments do not warrant a response.

Other provisions generally favorable to project proponents include allowing agencies to authorize land acquisitions while NEPA review is ongoing, and a provision that would allow agencies to retroactively apply the regulations to ongoing reviews.

If the rule is finalized, other agencies would have 12 months to align their regulations to conform with the rule.  But for a proposal as comprehensive as this, legal challenges are very likely.  If finalized, the proposal may result in less agency paperwork and faster NEPA reviews, which should achieve the goal of the revisions.  The proposal, however, does not free federal agencies from their core NEPA duties: to take a hard look at environmental impacts.  As this review often hinges on a reasoned consideration of the potential impacts of a proposed project and proper documentation of the analysis, agency staff may be reluctant to simplify the reviews in favor of speeding up projects.  And with the upcoming election season, it is possible that a final rule may fall within the scrutiny of the Congressional Review Act (which may allow the Congress to override the regulation if not finalized by May 20, 2020) or that the lay of the NEPA landscape may shift again in favor of broader reviews.

Comments on the proposed rule should be submitted on or before March 10, 2020.  Additionally, CEQ will hold public hearings on the proposal on February 11, 2020 in Denver, CO and February 25, 2020 in Washington, DC.

On January 8, 2020, the U.S. Senate Environment and Public Works Committee heard testimony from representatives of Wyoming and Maryland in an effort to evaluate the effectiveness of programs under the Clean Water Act (“CWA”) designed to reduce nonpoint source (“NPS”) pollution.

NPS pollution, unlike point source pollution that can typically be traced to an industrial or sewage treatment facility, is created by land runoff that results from rainfall or snowmelt. As the water moves over and through the ground, it picks up sediment and other pollutants that are eventually deposited into nearby waterways. According to the Environmental Protection Agency, NPS “pollutants have harmful effects on drinking water supplies, recreation, fisheries, and wildlife.”

While the CWA places strict regulations on discharges from point sources, regulating NPS pollution is more difficult. As a result, 1987 amendments to the CWA created the Section 319 Nonpoint Source Management Program (“Section 319”). This program seeks to reduce NPS pollution by providing states, territories, and tribes with grant money for education, training, technical assistance, or restoration projects related to NPS pollution.

The issue of nonpoint source pollution has received great focus lately in the closely related issue of groundwater given the case of County of Maui, HI v. Hawaii Wildlife Fund, _   U.S. ___, Case No. 18-260 (Argued Nov. 6, 2019; Decision Below 886 F.3d 737).  In the CWA, Congress differentiated between point source and nonpoint source pollution in controlling pollution of navigable waters. The CWA regulates point source pollution through permits, while nonpoint source pollution is controlled through federal oversight of state management programs and other non-CWA programs. The Supreme Court and several courts of appeals have read the CWA’s line dividing point source and nonpoint source pollution to turn on whether pollutants are delivered to navigable waters by a point source.  In County of Maui however, parting with those cases, the Ninth Circuit concluded that point source pollution also includes pollutants that reach navigable waters by nonpoint sources so long as the pollutants can be “traced” in more than “de minimis” amounts to a point source. This holding if affirmed potentially expands CWA permitting to millions of sources previously regulated as nonpoint source pollution. The question presented in the case is whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.

During the hearing to evaluate the effectiveness of Section 319 programs, senators heard from Maryland’s Secretary of the Environment, Ben Grumbles. Grumbles discussed remediation efforts, including the installation of an oxidizing pond and limestone leach bed, used by Maryland’s Department of the Environment to reduce NPS pollution in Aaron Run, a stream affected by runoff from abandoned coal mines. Senators also heard from the Nonpoint Source Program Coordinator at the Wyoming Department of Environmental Quality, Jennifer Zygmunt. Zygmunt discussed the best management practices (“BMPs”) used to reduce NPS pollution in Chugwater Creek, a water source listed as an impaired water under the CWA. The BMPs included the installation of a riparian fence and modifications to cattle grazing patterns in the area.

Despite the successes in Maryland and Wyoming, NPS pollution remains a potential source of pollution. It remains to be seen whether changes will be made to Section 319 or whether other measures will be taken to help reduce NPS pollution.

The text of the Section 319 Nonpoint Source Management Program can be found here. Additional information related to the efforts to reduce NPS pollution in Chugwater Creek can be viewed here and information related to the remediation efforts at Aaron Run can be viewed here.

Any questions regarding the foregoing may be directed to William Droze or Mandi Moroz.

EPA’s New Source Review (NSR) reform efforts have been in full swing over the past month or so as the Agency released two final guidance documents, issued a pre-publication version of a proposed rule, took final action to end a years-old reconsideration of a 2007 rulemaking, and released its Fall Unified Agenda detailing dates for a number of upcoming NSR-related actions. While these actions may not have immediate consequences for many regulated sources, they are evidence that EPA continues to pursue its NSR reform agenda.  Continue Reading EPA Engages in Flurry of NSR-Related Actions as 2019 Draws to a Close

Somewhat like a soccer game, time on the dispute between Florida and Georgia over the waters of the Apalachicola Chattahoochee Flint (ACF) basin seems to be kept on the field. It is difficult to know from the stands exactly where the game stands notwithstanding the score.  But the report issued by Special Master Hon. Paul J. Kelly, Jr. on December 11, 2019, plainly tipped the balance in Georgia’s favor when Special Master Kelly stated that he did not recommend that “the Supreme Court grant Florida’s request for a decree equitably apportioning the waters of the ACF Basin because the evidence has not shown harm to Florida caused by Georgia; the evidence has shown that Georgia’s water use is reasonable; and the evidence has not shown that the benefits of apportionment would substantially outweigh the potential harms.”  Rep’t of Sp. Mast. at 81. Continue Reading Florida/Georgia Water Wars: Advantage Georgia

On December 9, 2019, the U.S. Supreme Court decided not to revisit the U.S. Court of Appeals for D.C. Circuit’s decision in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (2019), allowing the lower court’s ruling to stand.

The key holding of the D.C. Circuit’s opinion, which concerned the ongoing Federal Energy Regulatory Commission’s (FERC) relicensing of the Klamath Hydroelectric Project, is that the States of California and Oregon waived their authorities under section 401 of the Clean Water Act (CWA), 33 U.S.C. § 1341, by failing to rule on the applicant’s submitted request for water quality certification within one year.  The D.C. Circuit held that the plain language of CWA section 401 establishes a maximum period of one year for states to act on a request for water quality certification.  Accordingly, the court further held that FERC erred in concluding that the “withdrawal-and-resubmittal” of the water quality certification application on an annual basis resets the one-year statutory time period for state action under section 401. Continue Reading Supreme Court Declines to Hear Clean Water Act Section 401 Case

On November 22, 2019, the Army Corps of Engineers (Corps) agreed to obtain a National Pollutant Discharge Elimination System (NPDES) permit for the operation of the federally owned and operated Chief Joseph Dam, the second-largest hydropower producing dam in the United States, as part of a settlement with the Columbia Riverkeeper. The settlement resolves litigation (previously addressed on this blog) brought by the Columbia Riverkeeper, which claimed that the Corps’ dam operations had long been discharging oil, grease, and heated water into the Columbia River without a permit.

Sections 301(a) and 402 of the Clean Water Act (CWA) prohibit anyone, including a federal agency, from discharging “pollutants” through a “point source” into a “water of the United States” except as authorized by a NPDES permit. Section 505 of the CWA provides any citizen, including a citizen group like Columbia Riverkeeper, the ability to bring a civil action against any person, including the United States, that is violating an effluent standard or limitation. As detailed by its complaint, the Columbia Riverkeeper alleged that the Corps has been in violation of CWA standards by allowing oils and grease to accumulate in sumps that drain into the river and utilizing hydro-carbon based lubricants on generation equipment that become discharged with cooling water without a NPDES permit. Continue Reading Army Corps Agrees to Obtain Clean Water Act Permit to Operate Federal Hydroelectric Dam

Under the Obama Administration, the Environmental Protection Agency (EPA) issued a rule on January 13, 2017 amending parts of the Clean Air Act’s (CAA) Risk Management Plan (RMP) program, which regulates facilities that use hazardous substances.  Among other things, the Obama Administration’s 2017 RMP Rule implemented new requirements related to technology and alternatives analyses, third-party audits, disclosure requirements, and incident investigations.  Similarly to other areas of environmental law, the Trump Administration expressed its intention to repeal these requirements shortly after entering office.  After issuing a May 30, 2018 proposed rule and considering nearly 77,360 submitted comments, the EPA recently made good on its intention by releasing the pre-publication version of final RMP Reconsideration Rule that, among other things, repeals the Obama Administration regulations.

The final rule incorporates most of the substantive provisions in the proposed rule.  In addition to repealing much of the 2017 RMP Rule, the RMP Reconsideration Rule modifies the requirements related to local emergency coordination and compliance dates for some provisions.  The Reconsideration Rule will become immediately effective upon its publication in the Federal Register, which should occur soon.  Parties are also expected to challenge the RMP Reconsideration Rule in court, potentially resulting in the delay of the rule’s effective date or its reversal.  One potential challenger is a contingent of fourteen state attorney generals that submitted negative comments on the proposed rule.  More recently, the states submitted another comment listing chemical incidents that have occurred since the proposed rule, which they argue further evidences the need to keep the 2017 RMP Rule. Continue Reading The Trump Administration Repeals Obama Workplace Chemical Requirements

On November 15, EPA posted its pre-publication version of the Final Rule re-classifying aerosol cans as “universal waste” under the Resource Conservation and Recovery Act (RCRA), which finalizes EPA’s March 16, 2018 proposal (83 Fed. Reg. 11,654).  As discussed in our prior blog post regarding the proposal, many aerosol cans have historically been classified as hazardous waste because of their ignitability, and thus often are subject to stringent regulations related to handling, transportation, and disposal.

Universal waste is a sub-category of RCRA regulated hazardous waste that allows certain widely generated products, such as batteries, certain pesticides, and lamps, to qualify for less stringent regulation than the traditional hazardous waste regime.  The Final Rule is intended by EPA to ease regulatory burdens on retail stores and others that discard hazardous waste aerosol cans by providing an optional pathway for streamlined waste management treatment; promote the collection and recycling of these cans; and encourage the development of municipal and commercial programs to reduce the quantity of aerosol cans going to municipal solid waste landfills or combustors.  Continue Reading EPA Finalizes Rule Classifying Aerosol Cans as Universal Waste

On November 13, 2019, the Environmental Protection Agency (EPA) officially opened the public comment period for its proposed revisions to its Lead and Copper Rule under the Safe Water Drinking Act. The EPA will receive comments on the proposal until January 13, 2020. A copy of proposal can be found here and an explanation of the major proposed rule changes can found here.

On November, 4, the U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced the latest proposal to amend the Coal Combustion Residuals (CCR) rule. Since its original promulgation in April 2015, the CCR rule has been the subject of extensive litigation and numerous rounds of proposed and final revisions. Many of the revisions have sought to address decisions made by the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) and concerns raised by both industry and environmental groups. This latest round of proposed changes—entitled “A Holistic Approach to Closure Part A: Deadline to Initiate Closure”—includes the following three categories of proposed amendments to the CCR Rule. Continue Reading EPA Proposes Additional Round of CCR Rule Revisions