Archive for the ‘NEPA’ Category

2012 Transportation Bill “Worst Ever”?

Photo by Ben Brooksbank. Some rights reserved.

A press release from the House Sustainable Energy & Environment Coalition (SEEC) back in February of 2012 urged House Leadership to stop consideration of H.R. 7 (which authorizes funding for federal surface transportation), claiming that the bill would “kill jobs, undermine safety, eliminate important funding for public transit and other transportation options, and destroy environmental protections.”

The SEEC’s press release went on to point out that this “worst transportation bill ever” is the first in recent history to be developed without bipartisan support, and could face delays due to “apparent lack of Republican support.”

Now, however, the SEEC is complaining because the Republicans found a way to support it: through a series of amendments that the SEEC calls “anti-environmental.”

According to The Hill’s Transportation Report, the SEEC sent a letter to transportation bill negotiators in late May, calling for the exclusion of three House environmental provisions from a final version of the bill. Transportation Issues Daily summarized the three provisions:

  • a mandate forcing the approval of the controversial Keystone XL oil pipeline
  • a revision in requirements for transportation projects to comply with National Environmental Protection Act
  • blocking EPA authority over coal waste (aka “coal ash” provision)

Now it’s up to the conference committee that is considering the bill to make a final decision. The Hill suggests that it may not meet its deadline for reaching a compromise.

DOE’s Recent NEPA Rule Is Lousy With New Categorical Exclusions

Photo by Rudi Winter. Some rights reserved.

A new final rule from the Department of Energy, published October 13, 2011, in the Federal Register, adds 20 new categorical exclusions to 10 CFR Part 1021, and addresses a range of activities from wind turbines to methane gas recovery and utilization systems to electric vehicle charging stations.

Projects that qualify for a categorical exclusion are typically exempt from the potentially rigorous requirements of NEPA. Under NEPA, federal agencies must prepare detailed reports known as Environmental Impact Statements (EIS), which disclose the potential environmental impacts of a proposed federal action and identify viable alternatives that might mitigate the adverse impacts.

DOE’s categorical exclusions – which haven’t been revised since 1996 – are being updated to “better align DOE’s categorical exclusions with its current activities and its experience and to bring the provisions up-to-date with current technology, operational practices, and regulatory requirements.”

Folks over at Chapman and Cutler are optimistic that “these new categorical exclusions likely mean that more renewable energy projects will avoid the expense and delay of an EA and/or EIS.”

However, the lawyers at Beveridge & Diamond wonder “whether the new categorical exclusions will make a substantive difference to many in the energy industry,” as “the qualification criteria attached to the exclusions render each narrowly drafted and limited in scope.” The restrictions for, say, wind turbines, are “similar in type and effect to restrictions that apply to almost all of DOE’s categorical exclusions, and consequently most commercial energy projects will not qualify for an exclusion.”

The final rule goes into effect November 14, 2011. You can review materials related to the rulemaking here, and see DOE’s prior categorical exclusion determinations here.

Crouching NOA, Hidden EIS: Last Week In Environmental Impact Statements

Many of you are familiar with the National Environmental Policy Act (NEPA), which requires federal agencies to prepare detailed reports known as Environmental Impact Statements (EIS). These reports attempt to compel federal agencies to consider the potential environmental impacts of proposed federal actions and any viable alternatives.

Federal agencies are required to prepare EISs in accordance with 40 CFR Part 1502, and to file the EISs with the EPA as specified in 40 CFR 1506.9. Each week the EPA prepares a digest of the preceding week’s filed EISs, which it publishes every Friday in the Federal Register under the title, “Notice of Availability” (NOA).

The EPA does not, however, include copies of the available EISs in the Notice nor on their website; they only “assist the public” by providing agency contacts and information “about” the EISs. Agencies, of course, must provide copies of an EIS to any member of “the interested public” on demand, but a consolidated view of full EISs is near impossible to come by. (Though it looks like “data gathering fairy godmother” Cubit is giving it a shot, with their “NEPA library.”)

As of January 2011, the EPA was soliciting feedback on the possibility of eliminating “the publication of weekly Notices of Availability for EISs in the Federal Register in favor of a central repository on the Internet (possibly on EPA’s Web site).” I strongly urge anyone who works with EISs to submit comments to the EPA in favor of this (the comment period for this particular notice has passed, but who says our voices can’t be heard?) The Notices of Availability leave a lot to be desired.

As an experiment, I aimed to locate, and provide links to, all the EISs referenced in last week’s NOA. It was exhausting, taking about an hour and a half to locate all thirteen.  (You can see the results of my efforts below.) And so I rest my case. Let the central repository move forward!

* * *

EIS No. 20110145, Final EIS, USFWS, TX, Hays County Regional Habitat Conservation Plan, Application for an Incidental Take Permit, Hays County, TX, Review Period Ends: 06/20/2011, Contact: Adam Zerrenner 512–490–0057.

EIS No. 20110146, Draft EIS, NPS, 00, Yellowstone National Park Draft Winter Use Plan, To Establish a Management Framework, Implementation, WY, MT and ID, Comment Period Ends: 07/18/2011, Contact: David Jacob 303–987–6970.

EIS No. 20110147, Final EIS, USACE, MO, PROGRAMMATIC—Mechanical Creation and Maintenance of Emergent Sandbar Habitat in the Riverine Segments of the Upper Missouri River, To Support Least Tern and Piping Plover Populations, Implementation, MO, Review Period Ends: 06/20/2011, Contact: Cynthia S. Upah 402–995–2672.

EIS No. 20110148, Final EIS, USACE, TX, Rusk Permit Area, Proposes to Construct, Operate, and Reclaim Permit Area, Expansion of Existing South Hallsville No. 1 Mine. Issuance of Section 404 Permit, Rusk, Harrison and Panola Counties, TX, Review Period Ends: 06/20/2011, Contact: Darvin Messer 817–886–1744.

EIS No. 20110149, Draft EIS, USFS, MT, Troy Mine Revised Reclamation Plan, Proposed Revision is to Return Lands Disturbed by Mining to a Condition Appropriate for Subsequent Use of the Area, Kootenai National Forest, MT, Comment Period Ends: 07/05/2011, Contact: Bobbie Loaklen 406–283–7681.

EIS No. 20110150, Final EIS, DOE, ID, ADOPTION—Areva Eagle Rock Enrichment Facility, Construct, Operate, and Decommission, Proposed Facility would Enrich Uranium for Use in Commercial Nuclear Fuel for Power Reactors, Bonneville County, ID, Review Period Ends: 06/20/2011, Contact: Matthew McMillen 202–586–7248. U.S. DOE has adopted the NRC’S FEIS #20110045, filed 02/14/2011. DOE was not a Cooperating Agency for the above FEIS; recirculation of the document is necessary under 40 CFR Part 1506.3(b).

EIS No. 20110151, Final EIS (Summary only), USAF, UT, White Elk Military Operations Area, Propose to Establish a New Military Operations Area (MOA) Linked to the Utah Test, Utah and Training Range (UTTR) Airspaces Nevada, Hill Air Force Base, UT and Nevada, Review Period Ends: 06/20/2011, Contact: Linda Devine 757–764–9434.

EIS No. 20110152, Final EIS, FHWA, CA, Jepson Parkway Project, Proposes to Upgrade and Link a Series of Existing Two and Four-Lane Roadways, Right-of-Way, Endangered Species Act Section 7 and U.S. Army COE Section 404 Permits, Solano County, CA, Review Period Ends: 06/20/2011, Contact: Melanie Brent 510–286–5231.

EIS No. 20110153, Final EIS, DOE, OH, ADOPTION—American Centrifuge Plant, Gas Centrifuge Uranium Enrichment Facility, Construction, Operation, and Decommission, License Issuance, Piketon, OH, Review Period Ends: 06/20/2011, Contact: Mathew McMillen 202–586–7248. U.S. DOE has adopted the NRC’S FEIS #20060189, filed 05/11/2006. DOE was not a Cooperating Agency for the above FEIS; recirculation of the document is necessary under 40 CFR Part 1506.3(b).

EIS No. 20110154, Final EIS, NRC, MN, Generic—License Renewal of Nuclear Plants for the Prairie Island Nuclear Generating Plant, Units 1 and 2, Supplement 39, NUREG–1437, Implementation, City of Red Wing, Dakota County, MN, Review Period Ends: 06/20/2011, Contact: Elaine Keegan 301–415–8517.

EIS No. 20110155, Final EIS, NPS, WI, Apostle Islands National Lakeshore General  Management Plan/Wilderness Management Plan, Implementation, Bayfield and Ashland Counties, WI, Review Period Ends: 06/20/2011, Contact: Nick Chevance 402–661–1844.

EIS No. 20110156, Final EIS, NRC, TX, Comanche Peak Nuclear Power Plant Units 3 and 4, Application for Combined Licenses (COLs) for Construction Permits and Operating Licenses, (NUREG–1943), Hood and Somervell Counties, TX, Review Period Ends: 06/20/2011,  Contact: Michael H. Willingham 301–415–3924.

EIS No. 20110157, Final EIS, NRC, MD, Calvert Cliffs Nuclear Power Plant Unit 3, Application for Combined License for Construct and Operate a New Nuclear Unit, NUREG 1936, Calvert County, MD, Review Period Ends: 06/20/2011, Contact: Laura Quinn 301–415–2220.

Unclogging the Electric Traffic Jam

Section 216 of the Energy Policy Act of 2005 (you can skip right to page 354) aimed to modernize our current transmission infrastructure by identifying and easing spots of electric transmission congestion across the states. To begin, Section 216 directed the Department of Energy to conduct a nation-wide study of the congestion and identify “any geographic area experiencing electric energy transmission capacity constraints or congestion that adversely affects consumers.” These areas of interest – designated “national interest electric transmission corridors” (NIETCs) – could ostensibly “provide FERC with limited siting authority,” according to a DOE FAQ on the topic.

Photo by Shyaulis Andrjus. Some rights reserved.

Well, the DOE published the National Electric Transmission Congestion Study in August of 2006, and let’s just say it wasn’t received very well by a lot of folks. Thirteen folks (or sets of folks) to be exact. On the first of February, the Ninth Circuit Court of Appeals – after reviewing thirteen petitions challenging the DOE’s implementation of Section 216 – issued a decision vacating the entire study and the NIETC designations therein. The opinion in California Wilderness Coalition v. U.S. Dept. of Energy found that “DOE failed to properly consult with the affected States in conducting the Congestion Study and failed to undertake any environmental study for its NIETC Designation as required by the National Environmental Protection Act (“NEPA”), 42 U.S.C. § 4332(C).”

Is that all?

“We also determine that these failings were not harmless errors.”


Stoel Rives has published a very readable memo that discusses in further detail how this decision, along with two other major court and agency actions, has served to “limit” and “undermine” the federal siting authority established in Section 216. Sounds like there are a lot of kinks to work out before “traffic” eases up.

Guidance on Mitigated FONSIs and Less-Charmingly-Named Aspects of NEPA Mitigation

The same day that the Ninth Circuit ruled to overturn the Federal Defendant Rule, which had – until then – prevented private parties from intervening in NEPA claims, the White House Council on Environmental Quality (CEQ) was busy issuing guidance on another part of NEPA relating to mitigation.

Photo by geoftheref. Some rights reserved.

Under NEPA, agencies may propose mitigation measures to help minimize the environmental impact of a Federal project. These measures may be part of the project’s fundamental design, or considered as alternatives in the project’s Environmental Impact Statement (EIS). An agency may even make a commitment to mitigation so extensive that the predicted environmental impacts of the project no longer require an EIS. In these cases, the agency is only required to file the less-stringent Environmental Assessment (EA) – a move coined the “mitigated FONSI.” (FONSI stands for Finding of No Significant Impact.)

On January 14th, CEQ released a guidance memorandum titled “Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact.” (The Federal Register version came out a week later, becoming effective upon publication.) The memo aims to improve agencies’ accountability for their proposed mitigation measures by addressing specifically:

  • How to ensure that mitigation commitments are implemented;
  • How to monitor the effectiveness of mitigation commitments;
  • How to remedy failed mitigation; and
  • How to involve the public in mitigation planning.

This mitigation guidance memo is the second of three NEPA-related guidance documents issued by the CEQ in honor of NEPA’s 40th anniversary. The first, on categorical exclusions, was finalized more than two months ago. The third, which guides Federal agencies in improving “their consideration of the effects of greenhouse gas (GHG) emissions and climate change in their evaluation of proposals,” is still in draft form.

For in-depth analysis of the guidance, see the related Van Ness Feldman Alert.

Out With The “Federal Defendant” Rule, and In With Private Party Intervention!

On January 14, 2011, the Ninth Circuit issued a decision in Wilderness Society v. U.S. Forest Service that overturned the so-called “federal defendant” rule, which “categorically prohibits private parties and state and local governments from intervening of right on the merits of claims brought under the National Environmental Policy Act (NEPA).”

Photo by PunkJr. Some rights reserved.

The rule – instituted more than two decades ago by Churchill County v. Babbitt – was “reversed and remanded” by the decision, on the grounds that it was “at odds with the text of Federal Rule of Civil Procedure 24(a)(2) and the standards we apply in all other intervention of right cases.”

While Procedure 24 permits anyone who “claims an interest relating to the property or transaction that is the subject of the action” to intervene in a case, the judges in the Churchill County v. Babbitt found that “because NEPA requires action only by the government [..] a private party cannot ‘comply’ with NEPA, and, therefore, a private party cannot be a defendant in a NEPA compliance action.”

Luckily, the Ninth Circuit realized last week that the NEPA-specific rule was, as Sidley Austin put it in a recent Environmental Update, an “anomaly.” Going forward, “this ruling will allow parties with a cognizable interest in an agency decision under NEPA, such as an Environmental Impact Statement and Record of Decision, to seek to intervene in both the merits and remedy stages of a lawsuit challenging that decision,” wraps up a related E-Alert from Nossaman.

If you can judge the importance of a court decision by the number of law firm memos that analyze it and how quickly they are published, then surely this decision is worth noting. Only four days after the decision was announced, three law firms concurrently published alerts detailing its “broad ramifications” and “substantial implications.” In addition to Sidley Austin and Nossaman, Morrison Foerster also reported thoroughly on the decision.

Will Controversial Expansion of Naval Activities Harm NW Whales?

Last week the Navy cleared one of several final hurdles facing their proposed operations expansion at the Northwest Training Range Complex (NWTRC) when NOAA’s National Marine Fisheries Service (NMFS) granted them permission to “take” marine animals incidental to their training activities. An article published in the Bellingham Herald last weekend explains why the plan for expanded operations has animal lovers up in arms.

Photo by Franco Folini. Some rights reserved.

The NWTRC is a stretch of ocean and airspace used for routine naval training that extends to 250 nautical miles west of the coast of Washington, Oregon, and northern California. The Navy is proposing to expand its operations to support future training activities and provide for range enhancements. Critics are quick to point out that these “activities” may include disruptive practices such as the dumping of hazardous materials and chronic noise from sonar testing.

In accordance with NEPA, the Navy has prepared an Environmental Impact Statement (EIS) reviewing and evaluating the potential environmental effects of these proposed actions and activities. The Navy finished the EIS (which included formal consultations with NMFS) and then the Navy reviewed the EIS (a process which smacks of conflict of interest), and decided to move forward to “continue to support and conduct current, emerging, and future training and research, development, test, and evaluation […] activities in the Northwest Training Range Complex.”

As part of the approval process, the Navy also had to apply to NMFS for authorization to “take” marine mammals incidental to these training activities. (In the context of marine mammals, the term “take” is a nice-sounding word that means to harass, hunt, capture, or kill. 16 USC 1362.) According to the aforementioned federal register notice in which NMFS issued their authorization, the Navy does expect some incidental harm to marine mammals from the sonars and underwater denotations that are part of the Navy’s routine training activities. Specifically, the Navy requested “authorization to take individuals of 26 species of marine mammals by Level B Harassment and 13 individuals of 9 species by Level A Harassment. […] No mortality of marine mammals is authorized incidental to naval exercises in the NWTRC.”

The authorization was based on findings that the takings will have a “negligible impact on marine mammal stocks and will not have an unmitigable adverse impact on the availability of the affected marine mammal stock for subsistence uses,” and was issued pursuant to NMFS’ recent final rule, which set forth general regulations governing the taking of marine mammals incidental to Navy activities in the NWTRC from October 2010 through October 2015.

However, such findings have not assuaged environmentalists’ concerns. Before the comment period expired, the Orca Network was urging fellow pro-Orca enthusiasts to give NMFS a piece of their mind. The National Resources Defense Council submitted a comment letter directly to the Navy, asking them, on behalf of twenty other environmental groups, to revise their EIS, “improving its impacts and alternatives analysis and establishing temporal and geographic protection zones to mitigate the harmful impacts of its training.” The comment letter was rich with evidence suggesting that the proposed expansion posed significant risk to whales, fish, and other wildlife.

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