Category

NEPA

08 July 2020

Fourth Circuit Rejects NEPA Challenge as Untimely

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).

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18 June 2020

Infrastructure EO May Lead to Policy Reversals, Litigation

*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.

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22 May 2020

Environmental Implications of President Trump’s Executive Order on Enforcement and Regulatory Relief

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…)

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22 August 2019

Trump Administration Updates Endangered Species Act Regulations

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.

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06 June 2019

Birckhead v. FERC – A FERC Pipeline Win That Could Lead to Future Pipeline Losses

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”).

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06 November 2018

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…)

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06 September 2017

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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22 August 2017

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…)

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