On March 22, 2021, the Federal Energy Regulatory Commission (FERC or Commission) for the first time issued an order that assessed whether greenhouse gas emissions related to a natural gas pipeline certificate project would significantly contribute to climate change. FERC purported to perform the assessment pursuant to its obligation under the National Environmental Policy Act (NEPA) to take a “hard look” at a project’s environmental impacts.
On February 18, 2021, the U.S. Federal Energy Regulatory Commission (FERC) reopened the comment period for its Notice of Inquiry (NOI) on the Certification of New Interstate Natural Gas Facilities. FERC applies its current policy, issued in 1999, to assess whether to issue interstate natural gas transportation facilities a Certificate of Public Convenience and Necessity (CPCN), a foundational permit required for their construction and operation. FERC must abide with its obligations under the Natural Gas Act and National Environmental Policy Act when considering pipeline certificate applications. FERC initially issued the NOI in April 2018, seeking comment on whether, and if so how, it should revise its approach to evaluating CPCN applications. The docket has been pending for nearly three years.
On October 23, 2020, a week of climate discussions by the International Maritime Organization (IMO) Intersessional Working Group on Reduction of Greenhouse Gas Emissions From Ships concluded with draft measures to cut carbon emissions from ships. The new measures would amend the International Convention for the Prevention of Pollution From Ships (MARPOL Convention) and require ships to reduce their carbon intensity as part of IMO’s goal to reduce the carbon intensity of international shipping by 40% by 2030 from 2008 levels. If adopted, the amendments would require new ships to be built so that they are more energy efficient than the Energy Efficiency Design Index (EEDI) baseline. (more…)
On October 2, 2020, the California Air Resources Board (CARB) unveiled a discussion draft of its 2020 Mobile Source Strategy. The strategy incorporates the zero-emission vehicle (ZEV) goals set forth in the recent Executive Order issued by California Governor Gavin Newsom and sets out steps for achieving those goals, such as requiring manufacturers to support and promote advanced technologies and in-use requirements for advanced technologies. (more…)
On September 23, 2020 California Governor Gavin Newsom issued Executive Order N-79-20, expressing the goals that:
- by 2035, 100% of all in-state sales of new passenger cars and trucks will be zero-emission vehicles (“ZEV”);
- by 2045, 100% of all medium-and heavy-duty vehicles in the state be zero-emission for all operations where feasible (and the same goal for drayage trucks by 2035); and
- by 2035, the State will transition to 100% zero-emission off-road vehicles and equipment (where feasible).
On August 18, 2020, a U.S. district court judge for the District of New Mexico upheld the Bureau of Land Management’s (BLM) analysis of climate impacts under the National Environmental Policy Act (NEPA). The case concerned BLM’s decision to authorize the lease of 68,000 acres of land in New Mexico for oil and gas development. (more…)
President Donald Trump followed through on one of his signature campaign promises and announced Thursday that the United States will withdraw from the Paris Agreement on climate change.
The Paris Agreement is an international accord intended to reduce worldwide greenhouse gas (GHG) emissions and mitigate the effects of climate change. Nearly 200 countries signed the Agreement, which took effect in November 2016. The Agreement is not a binding treaty. Instead, the signatories agreed to set voluntary, individualized carbon emission targets. The U.S. target was to reduce GHG emissions by 26–28% below 2005 levels by 2025.
On June 28, 2016, the U.S. Court of Appeals for the District of Columbia Circuit issued a pair of decisions upholding the Federal Energy Regulatory Commission’s (FERC) treatment of indirect and cumulative effects of greenhouse gas (GHG) emissions under the National Environmental Policy Act (NEPA) when the agency approved the construction and operation of enhanced liquid natural gas terminals at sites in Louisiana and Texas. These cases provide direct insight into the treatment of GHG emissions in NEPA analyses and are arguably more limited than Revised Draft Guidance issued in 2014 by the Council on Environmental Quality (CEQ). As explained in a previous Sidley Update, CEQ’s revised draft guidance would conceivably expand the scope of NEPA analyses of GHG emissions beyond what is permitted by NEPA or by CEQ’s implementing regulations in several key respects. In particular, CEQ’s arguably broad inclusion of upstream and downstream emissions associated with the extraction and ultimate combustion of fossil fuels is inconsistent with CEQ’s regulations and with well-established judicial precedent that a closer causal connection between an agency action and alleged environmental impacts. In contrast, the D.C. Circuit’s decisions are consistent with prior case law and provide further reason for CEQ to issue final guidance that clarifies the limits on an agency’s ability to evaluate upstream and downstream emissions when conducting a NEPA analysis.
In each case, the court rejected claims by the Sierra Club that NEPA obligated FERC to study the alleged impacts of extracting and processing additional gas that might be produced to satisfy additional international demand arising from greater export capacity. Also, the court rejected Sierra Club’s assertion that FERC should have included, as part of its cumulative effects analysis, a nationwide study of existing or proposed liquid natural gas export terminals. These rulings are important because they provide a further delineation for when so-called upstream and downstream effects can be excluded from analysis as indirect or cumulative impacts in a NEPA study, especially in the energy field.