CEQ Issues Draft Guidance to Promote Efficient NEPA Environmental Reviews

Posted on December 16, 2011 by Caleb Holmes

From Melissa Meirink of GT Denver:

The Council on Environmental Quality (CEQ) recently issued draft guidance designed to promote more efficient environmental reviews of projects subject to the National Environmental Policy Act (NEPA). NEPA is a procedural statute that requires federal agencies to consider the environmental impacts of their proposed actions before deciding to adopt a proposal or to take action. NEPA is triggered when there is a major federal action significantly affecting the quality of the human environment. Although the current NEPA-implementing regulations provide methods for preparing efficient and timely environmental reviews, the CEQ's proposed guidance will emphasize and clarify those methods. Specifically, the guidance outlines the following principles for agencies to follow when conducting a NEPA review:

  • NEPA encourages simple, straightforward, and concise reviews
  • The NEPA process should begin early and should be integrated into project planning
  • NEPA reviews should adopt, use, and incorporate existing documents and studies
  • Targeted scoping can assist to focus environmental reviews on appropriate issues
  • Agencies should develop expeditious timelines for environmental reviews
  • Agencies should respond to comments in proportion to the scope and scale of the environmental issues raised

In addition, the draft guidance clarifies that many provisions of the existing regulations referring to an environmental impact statement (EIS) can also apply to an environmental assessment (EA).  The draft guidance also provides measures to eliminate duplication of efforts and to promote better interagency interaction.

The draft guidance would promote a clear and more streamlined environmental review process under NEPA that would benefit agencies, project proponents, and others interested in the NEPA process.  The CEQ is accepting public comment on the draft guidance until January 27, 2012.

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10th Circuit Upholds Sharp Restrictions of Clinton-Era Roadless Rule in Forests

Posted on October 25, 2011 by Caleb Holmes

From Jeffrey Collier of GT West Palm Beach:

On October 21st, the U.S. Forest Service and environmental advocates successfully defended the Clinton administration's Roadless Area Conservation Rule ("Roadless Rule"), winning a decision by the U.S. Court of Appeals for the 10th Circuit requiring a district court to vacate its nationwide injunction against the rule.  See Wyoming v. U.S. Dep't of Agriculture (USDA), No. 09-8075 (10th Cir. Oct. 21, 2011).

The state of Wyoming, with support from the Colorado Mining Association, had won a decision in the U.S. District Court for the District of Wyoming on claims that the Roadless Rule violated the Wilderness Act and the National Environmental Policy Act ("NEPA") by creating de facto wilderness areas and by doing so without following NEPA procedural requirements.  The Roadless Rule eliminated prospects for almost any road construction on about 58.5 million acres of federal land.

The USDA, including the Forest Service, appealed to the 10th Circuit with support from environmental groups. The department argued that federal laws gave the Forest Service adequate discretion to bar road construction in national forests, and that the rule had been developed in conformity with NEPA requirements.

A three-judge panel of the appeals court ruled in favor of the Forest Service on all points.  The appeals court said the Roadless Rule allowed the possibility of at least some road construction and some grazing and mining, which meant that it did not amount to a de facto creation of wilderness.  The decision brings the 10th Circuit into agreement with the Ninth Circuit, which had rejected challenges to the Clinton administration's 2001 Roadless Rule.  See Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002).  This decision will, for the time being, continue to limit access to federal wilderness lands for mining, drilling, timbering, and related uses.

Compare Minard Run Oil Co. v. USFS, Nos. 10-1265 and 10-2332, (3rd Cir. Sept. 20, 2011), in which the 3rd Circuit affirmed a preliminary injunction entered by the District Court prohibiting the U.S. Forest Service from making the completion of a multi-year, forest-wide Environmental Impact Study a condition for issuing Notices to Proceed to mineral owners seeking to drill for oil or gas.  See also PAPCO, Inc. v. USFS, No. 08-253 (W.D. Penn. Aug. 30, 2011), in which the District Court for the Western District of Pennsylvania recently granted summary judgment in favor of PAPCO, holding that PAPCO is permitted the reasonable use of an easement to obtain its oil, gas and mineral rights in the Allegheny National Forest.
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The NEPA "Mobius Loop"

Posted on March 8, 2011 by Caleb Holmes

In David Mandelbaum's monthly column in the Legal Intelligncer/Pennsylvania Law Weekly, Monique Mooney considers the problem of the "NEPA mobius loop."  Environmental impact statements may take sufficiently long to prepare that when completed they are out of date.  The column uses as an example the recent litigation over deepening of the Delaware River Main Channel.

Click the links to read the column,  "Just Two Looks, That's All it Took: Cutting off the NEPA Mobius Loop", and the opinions related to the Delaware River Main Channel deepening: New Jersey Dept of Env. Protection v. U.S. Army Corps of Engineers, et al., No. 09-5591 (D.N.J. Jan 13, 2011) and Delaware Dept. of Nat. Res. & Env. Control et al. v. U.S. Army Corps of Engineers, et al., No. 09-821-SLR (D. Del. Nov. 17, 2010).   

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NEPA and Natural Gas Development - Where Are The Feds Going?

Posted on April 12, 2010 by Reed Rubinstein

From David Mandelbaum, GT Philadelphia, and K.B. Battaglini, GT Houston.

Special interest groups have long relied on the National Environmental Policy Act of 1969 (NEPA) to delay or halt domestic oil and gas development.  Now, reversing decades of policy and practice, the federal government (e.g. the Department of Agriculture's Forest Service and the Department of Interior's Bureau of Land Management) seems to be playing along with the environmentalists' strategy.  The government apparently has determined to apply NEPA not only to the availability of federal lands for oil and gas development, but also to the grant of specific oil and gas leases and perhaps even for mere access to drill individual wells.  This new policy needlessly pits the government against mineral rights holders. Oddly, at a time when the country clearly needs different energy infrastructure and resources, the government is using NEPA to avoid engagement on the substantive questions and as a vehicle for delay. 

The evidence of a policy shift is clear.

All wells are subject to various state and federal environmental controls and substantive standards. The lawsuits and settlements noted above are not about whether those substantive standards or controls adequately protect the environment. Rather, they are lawsuits over whether and how many "environmental impact" studies must be performed prior to drilling a well.  This is irrational. 

We can keep on importing oil and burning coal for electricity, or we can change. Engagement and debate on whether domestic drilling and greater energy independence is, on balance, for good or ill is welcome.  Delay in engagement to perform "environmental impact studies" is just delay for its own sake, irrational, wasteful, and the opposite of change.
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Supreme Court To Trim NEPA?

Posted on February 9, 2010 by Reed Rubinstein

As we noted here, law suits by environmental groups, often asserting claims based on the National Environmental Policy Act (NEPA), are a major barrier to clean energy generation and transmission.  Thus, the U.S. Supreme Court's grant of certiori in the case of Monsanto v. Geertson, notwithstanding the Obama Administration's objection, may prove to be good news for utilities and for clean energy generation and transmission companies. In Geertson, the Court is considering whether NEPA claims are exempt from the general rule that a likelihood of irreparable harm must be shown to obtain an injunction, whether a district court may enjoin a NEPA violation without conducting an evidentiary hearing, and whether the lower court erred by affirming an injunction based on an arguably remote possibility of harm. 

Historically, the rule has been a NEPA violation, even without evidence of substantive environmental harm, generally triggers an injunction blocking project development.  In Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008), the Court began to limit this rule, holding plaintiffs seeking injunctive relief under NEPA must in fact demonstrate that they are likely to suffer irreparable harm in the absence of the requested injunction, just as they would be required to do in any other case in which an injunctive remedy is requested.  Should the Court extend Winter and rule for Monsanto on any of the three issues presented, then special treatment for NEPA cases will cease and environmentalists' and others' ability to employ NEPA for blocking projects may be functionally terminated.  Clean energy companies and consumers stand to benefit a great deal from such a ruling.  

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