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).
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…)
*Article first appeared in Bloomberg Law on June 18, 2020.
A new executive order seeks to accelerate federal approvals of infrastructure and development projects, relying on various emergency authorities in environmental statutes. The authors of this article say the scope of these provisions, as well as their interaction with other laws, is uncertain, and investors and developers should be cautious of potential judicial challenges.
Earlier this week President Trump issued an executive order aimed at bolstering economic recovery as businesses reopen. This has potential for marked effects on environmental enforcement in light of how the Environmental Protection Agency and the Department of Justice have already been adapting environmental priorities in the face of the pandemic. (more…)
Three new rules issued by the Trump Administration may allow project developers to better plan future projects, and may encourage preservation and conservation efforts for both private and federal landowners. These rules, issued by the U.S. Fish and Wildlife Service, National Marine Fisheries Service and the National Oceanic and Atmospheric Administration, revise how the federal government will address critical habitat designations, protections for threatened species and interagency coordination under the Endangered Species Act.
The U.S. Fish and Wildlife Service (FWS), National Marine Fisheries Service (NMFS) and the National Oceanic and Atmospheric Administration (NOAA) (the Agencies), have issued three rules revising how the federal government will address critical habitat designations, protections for threatened species and interagency coordination under the Endangered Species Act (ESA). The Agencies’ decisions have not yet been published in the Federal Register, but prepublication versions can be found here. The regulations will become effective 30 days after publication.
On June 4, 2019, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) offered non-binding advice to the Federal Energy Regulatory Commission (“FERC”) on how it should perform environmental reviews of greenhouse gas (“GHG”) emissions when it considers new natural gas pipeline projects. While the opinion in Birckhead v. FERC ultimately upheld FERC’s order permitting a new natural gas compressor station near Nashville, Tennessee, the court devoted several pages of dicta on what upstream and downstream GHG emissions data FERC should be gathering to comply with the National Environmental Policy Act (“NEPA”).