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.
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.
On Tuesday, April 13, the White House Council on Environmental Quality (CEQ) rescinded a January 8, 2021, Trump administration rule that established guidance document procedures, procedures for the public to request withdrawal or modification of a guidance document, and procedures for significant guidance documents. (more…)
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 December 4, the U.S. Department of Energy (DOE) issued a final rule updating the National Environmental Policy Act (NEPA) implementing regulations applicable to its review of applications to export domestically produced liquified natural gas (LNG) to non-free-trade-agreement countries under Section 3 of the Natural Gas Act. DOE has determined that these actions are categorically excluded from NEPA review because 1) DOE is required by Section 3(c) of the Natural Gas Act to authorize these exports and 2) the reasonably foreseeable environmental effects DOE must review are limited — beginning at the point of export and extending to marine transport effects only. DOE is also removing reference to the import of LNG from its NEPA implementing regulations because the Energy Policy Act of 1992 leaves DOE with no discretion in its approval of such imports.
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…)
On July 29, a number of environmental groups, including Earth Justice, Center for Biological Diversity, Environmental Defense Fund, and the National Wildlife Federation, filed suit in the U.S. District Court for the Northern District of California challenging the White House Council on Environmental Quality’s (CEQ) July 15 final rule revising its National Environmental Policy Act (NEPA) implementing regulations. A similar suit followed on June 30 by a different collection of environmental groups in the U.S. District Court for the Western District of Virginia. The CEQ’s final rule sets forth a significant shift in how the White House views the government’s duties and obligations under NEPA and is the first change its NEPA implementation regulations since 1978. Notably, the final rule expands projects categorically excluded from NEPA review, limits most Environmental Impact Statement reviews to two years, and removes an obligation for an agency to consider impacts that are not reasonably foreseeable or those that are “are remote in time, geographically remote, or the product of a lengthy causal chain.”
On July 1, 2020, the U.S. Court of Appeals for the Fourth Circuit dismissed Howard County, Maryland’s, petition to review the Federal Aviation Administration’s approval (FAA) of construction at Baltimore-Washington International (BWI) Airport as inconsistent with the National Environmental Policy Act (NEPA). NEPA requires the federal agencies to conduct environmental assessments of federally licensed projects to determine whether the project will have significant environmental effects. In 1994, Congress provided for a 60-day limitations period covering challenges to certain projects. This limitations period includes challenges to the adequacy of the NEPA review (NEPA does not contain a statute of limitations provision). 49 U.S.C. § 46110(a).