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.

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Court Shuts Down Dakota Access Pipeline

On July 6, 2020, Judge James E. Boasberg of the U.S. District Court for the District of Columbia vacated the easement that had been granted to the Dakota Access Pipeline (DAPL) under the Mineral Leasing Act and ordered DAPL to be shut down in 30 days. (more…)

Transportation Agencies Update Environmental Review Process for Infrastructure Projects

Regulations issued Monday could create a faster, less duplicative environmental review process for transportation infrastructure projects. Under the rule, the Federal Highway Administration (FHWA), the Federal Railroad Administration (FRA) and the Federal Transit Administration (FTA) will share a single set of Section 4(f) and National Environmental Policy Act (NEPA) regulations, with minor differences. 83 Fed. Reg. 54,480 (Oct. 29, 2018). The agencies explain that the changes “will provide a more consistent and predictable process for potential project sponsors, especially those that engage in environmental reviews for more than one mode of surface transportation.” Id. at 54,482. By joining the 23 C.F.R. part 771 regulations, FRA also fulfills its obligation under the Fixing America’s Surface Transportation (FAST) Act. The regulations go into effect November 28. (more…)

Sidley Environmental Trends

Topics discussed this week include:

  • Environmental group brings Clean Water Act citizen suit against Shell and Motiva that alleges climate change-related harms.
  • District court stays CERCLA unilateral administrative order.
  • District court overturns Department of the Interior stay of rule governing royalties for oil, natural gas and coal production on federal and Indian lands.
  • Second Circuit upholds New York State’s decision to deny Clean Water Act certification to proposed pipeline.
  • C. Circuit holds that FERC should consider power plant emissions in pipeline environmental impact statement.
  • Hurricane Harvey affects Gulf Coast energy and chemical resources.

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Southeast Market Pipelines Project Certificate Vacated and Remanded to FERC for Further Environmental Review on Greenhouse Gas Emissions

In a 2-1 decision that issued today, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in Sierra Club et. al v. Federal Energy Regulatory Commission (Sierra Club) vacated and remanded a Natural Gas Act (NGA) Section 7 certificate of public convenience and necessity granted by the Federal Energy Regulatory Commission (FERC) to the Southeast Market Pipelines Project (Project) in 2016.  The Project comprises three natural gas pipelines currently under construction in Alabama, Georgia, and Florida that, once built, will transport over 1 billion cubic feet of natural gas per day over 500 miles to feed new and existing natural gas-fired electric plants in Florida and to serve the growing natural gas demand of Florida utility customers.  (more…)