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 regulations will become effective 30 days after publication.



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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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…)


White House Announces NEPA MOU

Eleven federal agencies and the Federal Permitting Improvement Steering Council signed a memorandum of understanding (MOU) aimed at streamlining the environmental review of major infrastructure projects under the National Environmental Policy Act (NEPA). (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…)

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House Passes Two Bills Giving More Pipeline Permitting Authority to the Federal Energy Regulatory Commission

On July 19, 2017, the U.S. House of Representatives passed a pair of bills aimed at reforming natural gas and oil pipeline permitting, and granting additional authority to the Federal Energy Regulatory Commission (“FERC”).  Both bills passed on largely party-line votes.  The two bills are H.R. 2883, Promoting Cross-Border Energy Infrastructure Act, and H.R. 2910, Promoting Interagency Coordination for Review of Natural Gas Pipelines Act.  H.R. 2883, removes the current requirement that gas and oil pipelines, as well as electric transmission projects, obtain a Presidential Permit to cross an international border.  Instead, pipelines would obtain a certificate of crossing from FERC and transmission projects would obtain such a certificate from the Department of Energy.  If enacted into law, this change would mark a significant change for oil pipeline projects.  FERC currently has no authority over any aspect of interstate oil pipeline siting.  Currently, all siting decisions not on federal lands are handled at the state level, with international border crossings overseen by the State Department through the presidential permit process.  FERC does, however, oversee the siting of interstate natural gas pipelines, including Presidential Permits for international border crossings, under current law.


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Energy Enforcement Update

This week’s enforcement update covers:

  • CFTC enters into non-prosecution agreements with former Citigroup Global Markets Inc. traders in spoofing case;
  • CFTC orders $5.2 million in civil penalties for wash sales designed to generate exchange rebate fees;
  • FERC hosts technical conference on developments in natural gas index liquidity and transparency;
  • Senate Energy & Natural Resources Committee releases new energy bill;
  • President Trump announces intent to nominate Richard Glick as FERC Commissioner;
  • FERC Enforcement and City Power file status report on settlement; and
  • Judge grants Kraft Foods motion to compel discovery from the CFTC.


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D.C. Circuit Upholds FERC’s Limited Impacts Analysis in NEPA Documents Addressing Greenhouse Gases

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.


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