NEPA

Sun, 2014-08-31 08:00Steve Horn
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Legal Case: White House Argues Against Considering Climate Change on Energy Projects

Just over a month before the United Nations convenes on September 23 in New York City to discuss climate change and activists gather for a week of action, the Obama White House Council on Environmental Quality (CEQ) argued it does not have to offer guidance to federal agencies it coordinates with to consider climate change impacts for energy decisions.

It came just a few weeks before a leaked draft copy of the Intergovernmental Panel on Climate Change's (IPCC) latest assessment said climate disruption could cause “severe, pervasive and irreversible impacts for people and ecosystems.”

Initially filed as a February 2008 petition to CEQ by the International Center for Technology Assessment, the Sierra Club and the Natural Resources Defense Council (NRDC) when George W. Bush still served as President, it had been stalled for years. 

Six and a half years later and another term into the Obama Administration, however, things have finally moved forward. Or backwards, depending on who you ask. 

NEPA and CEQ

The initial February 2008 legal petition issued by the plaintiffs was rather simple: the White House's Council for Environmental Quality (CEQ) should provide guidance to federal agencies it coordinates with to weigh climate change impacts when utilizing the National Environmental Policy Act (NEPA) on energy policy decisions. 

A legal process completely skirted in recent prominent tar sands pipeline cases by both TransCanada and Enbridge, NEPA is referred to by legal scholars as the “Magna Carta” of environmental law.

Magna Carta; Photo Credit: Wikimedia Commons

CEQ oversees major tenets of environmental, energy and climate policy. It often serves as the final arbiter on many major legislative pushes proposed by Congress and federal agencies much in the same way the White House's Office of Information and Regulatory Affairs (OIRA) does for regulatory policy. 

Wed, 2014-06-25 13:27Steve Horn
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Recent Federal Court Decision Could Muddy Waters for Keystone XL South, Flanagan South

On June 6, the U.S. Court of Appeals for the District of Columbia Circuit handed down a ruling that will serve as important precedent for the ongoing federal legal battles over the Keystone XL and Flanagan South tar sands pipelines.

In the Delaware Riverkeeper v. Federal Energy Regulatory Commission (FERC) case, judges ruled that a continuous pipeline project cannot be segmented into multiple parts to avoid a comprehensive National Environmental Policy Act (NEPA) review. This is what Kinder Morgan proposed and did for its Northeast Upgrade Project.

As reported on DeSmogBlog, the U.S. Army Corps of Engineers did the same thing to streamline permitting for both the southern leg of TransCanada's Keystone XL and Enbridge's Flanagan South. Sierra Club and co-plaintiffs were denied injunctions for both pipelines in October and November 2013, respectively.

Delaware Riverkeeper v. FERC dealt with breaking up a new 40-mile long pipeline upgrade into four segments. For the other two cases, the Army Corps of Engineers shape-shifted the two projects — both hundreds of miles long each — into thousands of “single and complete” projects for permitting purposes.

On the day of the Delaware Riverkeeper v. FERC decision, Sierra Club attorney Doug Hayes submitted the case as supplemental authority for the ongoing Flanagan South case.

On May 5, Hayes also submitted paperwork to appeal the Keystone XL South decision in front of the U.S. Court of Appeals for the Tenth Circuit, which was docketed by the clerk of Ccurt the next day.

Hayes told DeSmogBlog his side will file an opening brief for the appeal on July 30. It seems likely Delaware Riverkeeper v. FERC will be a key part of that appeal.

In a sign of the importance of the outcome for the oil and gas industry, the American Petroleum Institute (APIentered the Sierra Club v. Army Corps of Engineers case on Keystone XL as an intervenor on May 16, represented by corporate law firm Hunton & Williams.

At the federal level, Hunton & Williams lobbies on behalf of Koch Industries, a company with a major stake in tar sands leases and refining.

Mon, 2014-03-10 15:58Farron Cousins
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Environmental Review Thrown Out By House Legislation

The U.S. House of Representatives is serious about job creation.  So serious, in fact, that they are willing to sacrifice a healthy environment just so corporations have the “potential” to create new jobs without having to worry about all of that burdensome red tape that so often comes with environmental safety standards.

In a move last week, the House passed the Responsibly and Professionally Invigorating Development Act (RAPID Act – HR 2641), which will put hard deadlines on environmental reviews required under the National Environmental Policy Act (NEPA), typically carried out by the Environmental Protection Agency (EPA). 

Republicans in the House claimed that the bill was aimed at preventing the EPA from stalling projects that could create jobs for American citizens.  They said that environmental reviews, which are required by law, can hold projects up for years, and they believe that this is a cost that the economy simply cannot afford.  If signed into law, the bill will limit environmental reviews to a firm 18 months, with only 36 months to complete an environmental impact statement.

The White House indicated that, if the legislation were to reach the President’s desk, he would most certainly veto it.  The Hill quotes the White House as saying; “H.R. 2641 will increase litigation, regulatory delays, and potentially force agencies to approve a project if the review and analysis cannot be completed before the proposed arbitrary deadlines.”

The bill passed the House largely on party lines, with all Republican members and only 12 Democratic members voting in favor.  A provision of the bill will allow projects for which an environmental review could not be completed in time to receive automatic approval.  Democratic Representative Sheila Jackson Lee proposed an amendment to strip this provision of the bill, but it failed to pass.

Another amendment, proposed by Republican Representative David McKinley from West Virginia, specifically prohibits regulatory agencies from considering “social costs of carbon” in their reviews.  This amendment passed and was included in the final bill.

The Republicans are not wrong in claiming that environmental reviews can hold up projects for years, but there are two very good reasons why this happens.

Fri, 2013-11-22 12:37Steve Horn
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US Court Denies Halt on Pipeline Set to Replace Keystone XL Northern Half

Flanagan south, keystone xl pipeline

The ever-wise Yogi Berra once quipped “It's like déjà vu all over again,” a truism applicable to a recent huge decision handed down by the United States District Court for the District of Columbia. 

A story covered only by McClatchy News' Michael Doyle, Judge Ketanji Brown Jackson shot down Sierra Club and National Wildlife Federation's (NWF) request for an immediate injunction in constructing Enbridge's Flanagan South tar sands pipeline in a 60-page ruling.

That 600-mile long, 600,000 barrels per day proposed line runs from Flanagan, Illinois - located in the north central part of the state - down to Cushing, Oklahoma, dubbed the “pipeline crossroads of the world.” The proposed 694-mile, 700,000 barrels per day proposed Transcanada Keystone XL northern half also runs to Cushing from Alberta, Canada and requires U.S. State Department approval, along with President Barack Obama's approval. 

Because Flanagan South is not a border-crossing line, it doesn't require the State Department or Obama's approval. If Keystone XL's northern half's permit is denied, Flanagan South - along with Enbridge's proposal to expand its Alberta Clipper pipeline, approved by Obama's State Department during Congress' recess in August 2009 - would make up that half of the pipeline's capacity and then some. 

Thu, 2012-10-11 09:24Ben Jervey
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White House Holds Meeting to Address Coal Export Terminals

It was barely two weeks ago that we reported on the Army Corps of Engineers’ decision to “fast track” approval of the Morrow Pacific Project, a coal export terminal on the Columbia River that would move over 8 million tons of coal from rail to barge every year.

This Morrow Pacific Project is one of a handful of proposed export terminals that the industry hopes to build to help link coal from the strip mines of the Powder River Basin to overseas markets. As American demand for coal falls, companies (many foreign owned) are scrambling to access the growing Asian markets.

At issue with the export terminals is the process of review and approval, specifically with regard to the environmental impacts. As we wrote about the Morrow Pacific Project, the Army Corps has, at present, the final word in determining whether or not a terminal can be built. This is due primarily to the “dredge and fill” rules established in section 404 of the Clean Water Act, and the origin of Army Corps decisionmaking harkens all the way back to the Rivers and Harbons Appropriation Act of 1899.

Here’s the problem: in determining whether or not to approve a new facility such as a coal transfer terminal, the Army Corps is only compelled legally to look at the immediate environmental impacts at the site itself. These site-specific reviews wouldn’t take into account any broader of cumulative impacts, like, say, the impacts of coal dust along the route of the rail or barge traffic, nor the even broader and inevitable impacts of the coal’s combustion on mercury pollution and global climate disruption.

Wed, 2012-03-21 12:30Brendan DeMelle
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Documents Reveal USDA Risking Lawsuits by Ignoring Own Staff On Fracking Mortgages Review

A major storm is brewing over the USDA’s sudden about-face on fracking and environmental laws. On Tuesday, the head of the U.S. Department of Agriculture pulled a 180-degree U-turn and decided to reverse the call made by his staff specialists, who advised that the agency immediately stop giving special exemptions from environmental laws to people applying for federal mortgages on properties with oil and gas leases.

Now, environmentalists, members of Congress, and transparency groups are saying that something seems amiss and they are looking for answers.

It all started on Monday when The New York Times ran a story with emails showing that the USDA planned to tell its $165 billion dollar mortgage program to stop financing properties with drilling leases until an environmental review of the impact of drilling and fracking on homes backed by the agency could be completed.

The proposal by the Agriculture Department, which has signaled its intention in e-mails to Congress and landowners, reflects a growing concern that lending to owners of properties with drilling leases might violate the National Environmental Policy Act, known as NEPA, which requires environmental reviews before federal money is spent. Because that law covers all federal agencies, the department’s move raises questions about litigation risks for other agencies, legal experts said,” the Times story explained.

DeSmogBlog has obtained many of the emails and they make very clear that the staff specialists, whose job it is to interpret laws like NEPA, believe that environmental reviews are legally required and that the agency is vulnerable to litigation if it gives these mortgages a pass, called a “categorical exclusion.”

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