On Tuesday, March 10, the comment period closed on the Council on Environmental Quality’s (CEQ) Notice of Proposed Rulemaking (NOPR) to update its regulations implementing the National Environmental Policy Act (NEPA).

CEQ published its proposed rule on January 10, 2020 (see January 15, 2020 edition of the Environmental Law & Policy Monitor). CEQ’s proposed rule aims to update its regulations—which have not been modified since they were released in 1978—by streamlining the NEPA process and instituting changes to reduce delays and paperwork, and modifying the scope of agencies review of proposed actions.

CEQ received over 170,000 comments on the NOPR from a wide variety of groups, including environmental and conservation organizations, states and counties, Native American Tribes, industry and trade associations, renewable energy developers, and, as discussed in more detail below, organizations representing hydropower, electric cooperatives, public power corporations, and investor-owned utilities.

The Edison Electric Institute (EEI) filed comments generally supporting the NOPR’s changes to the NEPA process to make it more efficient while keeping the public sufficiently informed. Its comments also focused on the electric industry’s “clean energy transformation” and stated that agencies should, through their NEPA reviews, attempt to reasonably quantify greenhouse gas emissions to reduce challenges to environmental documents based on alleged failures to do so. EEI’s comments are available here.

The American Public Power Association (APPA) was generally supportive of CEQ’s NOPR and its efforts to streamline and modernize the NEPA process, but provided that CEQ should “continually look for ways to lessen the burden on agencies, applicants, contractors, and public participants” so that NEPA reviews can be completed on shorter timeframes. APPA’s comments are available here.

The National Rural Electric Cooperative Association (NRECA) filed comments supporting CEQ’s efforts to reform NEPA, emphasizing the importance of ensuring that the regulations are appropriately focused and streamlined to reduce burdens on NRECA members. NRECA’s comments are available here.

The National Hydropower Association (NHA) and the Northwest Hydroelectric Association (NWHA) also supported the proposed rule, expressing their appreciation for CEQ’s proposed revisions to clarify the roles of lead and cooperating agencies, revising several important definitions, and modifying the types of studies and information that can be used to develop NEPA documents. NHA’s comments, which were also supported by NWHA, are available here.

The next step in CEQ’s rulemaking is to evaluate all of the many thousands of comments received, consider all comments when preparing its final rule, and then to publish the final rule. It is not known at this time when CEQ expects to publish its final rule.

CEQ’s proposed rule is available here and comments filed on it are available here.

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 June 21, 2019, the White House Council on Environmental Quality (CEQ) released a new draft guidance redefining the process federal agencies will use to evaluate greenhouse gas (GHG) emissions under the National Environmental Policy Act (NEPA). In marked contrast to GHG guidance issued by CEQ under the Obama Administration in 2016, the draft guidance encourages federal agencies undertaking NEPA review to follow the “rule of reason” and use their “expertise and experience” to decide whether and to what degree the agency will analyze particular effects of GHG emissions. Therefore, the draft guidance moves to a more deferential approach to agency review under NEPA than the Obama Administration’s prescriptive guidance. The draft guidance will be published in the Federal Register for public review and comment. If finalized, it will replace the Obama Administration’s 2016 guidance, which was withdrawn effective April 5, 2017, after President Trump issued Executive Order (EO) 13783, “Promoting Energy Independence and Economic Growth.”  Continue Reading A Clear Shift in Policy: CEQ Issues Draft Guidance for Consideration of Greenhouse Gas Emissions Under NEPA

On February 20, 2020, Earthjustice, on behalf of a variety of nonprofit organizations, including the Sierra Club, brought suit against the United States Department of Defense (“DOD”), alleging that the DOD violated the National Environmental Policy Act (“NEPA”) and the National Defense Authorization Act (“NDAA”) in its decision to enter into contracts for the incineration of its unused stockpiles of firefighting foam. Save Our County, et al. v. United States Department of Defense, et al., 3:20-cv-01267 (N.D. Cal. Feb. 20, 2020). According to the complaint, the incineration of firefighting foam poses a threat to communities as the burning of the foam releases per– and polyfluoroalkyl substances (“PFAS”), a group of chemicals found in firefighting foam that may be linked to certain adverse health effects. In the complaint, the plaintiffs allege that the DOD’s contracts violate NEPA because the DOD did not prepare an environmental impact statement prior to consenting to the incineration of the firefighting foam. Additionally, the plaintiffs allege that the incineration of the firefighting foam does not comply with certain regulations created by the NDAA that govern the incineration of PFAS-containing materials.

Save Our County is only the latest litigation in the ever-growing number of lawsuits relating to PFAS. While PFAS litigation initially targeted manufacturers of the chemicals, litigation efforts have expanded to include suits based on the use and disposal of PFAS-containing materials. As litigation continues to evolve, it is likely that lawsuits will continue to be filed in courts across the country.

On the regulatory front, the Environmental Protection Agency (“EPA”) has recently increased its efforts to regulate the chemicals by announcing its intent to publish a proposed regulatory determination under the Safe Drinking Water Act (“SDWA”) for PFAS. The EPA’s proposal is part of its larger 2019 PFAS Action Plan—a multi-pronged action plan detailing the EPA’s goals to increase PFAS regulation. With increased federal regulation, the prevalence of PFAS litigation is expected to continue to rise. We will continue to provide updates as increased federal regulation begins to shape ongoing PFAS litigation.

The complaint filed in Save Our County can be viewed here. Information on the EPA’s announcement of its intent to publish a regulatory determination under the SDWA can be found here and information relating to the EPA’s 2019 PFAS Action Plan can be viewed here.

For more information, please contact William Droze or Mandi Moroz.

On January 30, 2020, the U.S. Fish and Wildlife Service (“USFWS”) released its anticipated Migratory Bird Treaty Act (“MBTA”) proposed rule. The purpose of the proposed rule is to codify the December 2017 Department of Interior (“DOI”) Solicitor opinion (“M-Opinion”) limiting liability under the MBTA. The M-Opinion overturned an earlier Obama Administration M-Opinion explicitly finding that MBTA liability applied to incidental take.

The proposed rule seeks to narrowly interpret liability under the MBTA to apply only those actions specifically “directed at” migratory birds that “reduce animals to human control.” This interpretation would expressly exclude the “incidental taking” of a migratory bird when such take is not the purpose of an action. The USFWS explains that the proposed rule will provide much-needed clarity, noting that the Obama administration’s interpretation was not codified in any regulation and was inconsistently applied through prosecutorial discretion and guidance based on when a take might be “foreseeable,” including from wind turbines, electrical transmission wires, and oil drilling. Additionally, the proposal would resolve a federal circuit split regarding whether the MBTA applies to incidental take. The proposal would make it clear that a violation of the MTBA “unambiguously require[s] an action that is directed at migratory birds, nests, or eggs.”

If finalized as proposed, the rule would provide greater certainty to the regulated community, as a regulation would not be changed as easily as the M opinions have been. Nevertheless, some uncertainty remains as to the scope of historically regulated activity that will now be exempt. Comments on the proposed rule are due on March 19, 2020. To avoid review under the Congressional Review Act (“CRA”), the final rule will need to be issued by May 20, 2020. Meeting the CRA deadline may prove challenging as USFWS has also initiated the required National Environmental Policy Act (“NEPA”) review of the MBTA proposed rule. USFWS is now in the process of public scoping, and comments on the scope of the NEPA review are also due to USFWS by March 19, 2020.

On June 7, 2019, the Advisory Council on Historic Preservation’s (ACHP) Office of General Counsel issued a memorandum to ACHP staff, clarifying the distinction between direct and indirect effects in meeting obligations under section 106 of the National Historic Preservation Act (NHPA).  ACHP’s memorandum is important to utilities, industrial, commercial and other entities because federal licensing and permitting agencies (e.g., U.S. Army Corps of Engineers (Corps), Federal Energy Regulatory Commission, U.S. Forest Service, and U.S. Department of the Interior) are required under NHPA section 106 to evaluate effects of the license or permit on properties that are listed, or eligible for listing, in the National Register of Historic Places.  ACHP’s memorandum clarified that direct effects may be the result of a physical connection, but may also include visual, auditory, or atmospheric impacts as well. Continue Reading Advisory Council on Historic Preservation Issues Memo on Direct and Indirect Effects under the National Historic Preservation Act

FERC’s consideration of indirect environmental impacts of the projects it certifies has been heavily debated as the concerns over climate change increase.  Both the National Environmental Policy Act (NEPA) and Natural Gas Act (NGA) require that FERC consider how an interstate natural gas pipeline directly and indirectly affects the human environment.  Although consideration of direct impacts may be a less controversial topic, FERC’s approach with respect to indirect impacts[1] has proven to be more complex.  It is particularly relevant in light of the Council on Environmental Quality’s (CEQ’s) June 2019 proposed guidance, directing how federal agencies should assess project-related greenhouse gas emissions, discussed in detail here and here.  The guidance suggest that FERC should employ a “rule of reason” when considering impacts of greenhouse gas emissions and if FERC lacks adequate information about these emissions, it does not need to quantify them.  This recommended approach, however, seems to conflict with how the D.C. Circuit interpreted FERC’s duty in analyzing greenhouse gas and other indirect emissions in its earlier June 2019 decision Birckhead v. FERC, USCA Case No. 18-1218 (D.C. Cir. 2019).  Continue Reading D.C. Circuit Suggests FERC Should Try to Quantify Indirect Environmental Impacts of Pipeline Projects

On Monday February 12, President Trump unveiled his long-awaited infrastructure plan.  According to President Trump, our country’s infrastructure “is in an unacceptable state of disrepair, which damages our country’s competitiveness and our citizens’ quality of life.”  While some view the plan as a step toward streamlining an environmental review process that could delay a project unnecessarily, others worry the proposal could curtail the authority federal agencies exercise over environmental reviews pursuant to the National Environmental Policy Act (NEPA).

The plan calls for $200 billion to be spent rebuilding roads, bridges, highways, railways, waterways, and other infrastructure over the next ten years.  That money will come from cuts to other programs (particularly within the Department of Transportation) and is not intended—at least as proposed—to come from new revenue streams.  According to President Trump, the proposed changes will generate approximately $1.5 trillion in new infrastructure investment.

Continue Reading Trump Administration Reveals Long-Awaited Infrastructure Plan

Flanked by two dozen coal miners, Vice President Mike Pence, EPA Administrator Scott Pruitt, Energy Secretary Rick Perry, and Interior Secretary Ryan Zinke, and joined by various coal state congressmen and industry executives, President Trump visited EPA headquarters yesterday to sign a long-anticipated Executive Order to end the previous administration’s so-called “war on coal.”

Continue Reading Trump Begins Rolling Back Regulatory Burdens on Fossil Fuel Energy Production

San Francisco

Troutman Sanders is opening an office in San Francisco on April 1, 2015. This will be the firm’s fourth office on the West Coast, with existing offices in Orange County, San Diego and Portland. The firm’s San Francisco office will be located in the Financial District at 580 California Street.

The new San Francisco office provides the firm’s Environmental & Natural Resources practice with a unique opportunity to offer a wider range of services to key clients on the numerous environmental issues that arise under California law.

The practice already offers first rate experience with the California market, advising clients on air quality, water quality, and waste management issues arising under California and federal environmental laws.  Our practice is well-known for its expertise with project development under the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA).  The practice serves as lead environmental counsel for numerous clients with regard to utility scale solar, wind, and fossil fuel power plant development and acquisitions, with aggregate values in the billions of dollars.  For several years, our practice has represented national retailers in environmental policy and enforcement matters in negotiation with California district attorneys, the Department of Toxic Substances Control, and local regulators.  Our practice also offers significant experience with Brownfields redevelopment throughout California.  The practice anticipates using the San Francisco office as a springboard to continue and expand this important work for our clients.