NEPA

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The reform mainly focuses on streamlining and narrowing the scope of environmental review at the federal level.

By Janice Schneider, Nikki Buffa, Devin O’Connor, and Kevin Homrighausen

On June 3, 2023, President Biden signed legislation implementing the bipartisan debt ceiling and budget agreement as the “Fiscal Responsibility Act of 2023.” As part of this legislation, Congress agreed to several federal permitting reform measures, focused largely on amendments to the National Environmental Policy Act (NEPA).

NEPA requires federal agencies to consider the potential environmental impacts of discretionary major federal actions (e.g., including issuing permits and granting federal funding) before they are taken. As part of this analysis, agencies must evaluate alternatives to the proposed action and consider mitigation measures, and must provide an opportunity for public input. The scope and detail of NEPA review can affect the contours, timing, and ultimate outcome of federal decision-making and is frequently litigated by project opponents. The new amendments to NEPA in the Fiscal Responsibility Act draw substantially from other proposed legislation and regulatory amendments in recent years. These new provisions are designed to narrow the scope of federal actions that are subject to NEPA, consolidate NEPA review under a single “lead” agency, and impose time and page limits for environmental documents under NEPA, among other changes described below.

By Kimberly D. Farbota, Jennifer K. Roy, and Christopher Garrett

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

In an unpublished opinion issued August 28, 2018, Forest Preservation Society v. Department of Forestry and Fire Protection, Case. No. SCUK-CVPT-15-66284, the California Court of Appeal affirmed the trial court’s judgment and upheld the California Department of Forestry and Fire Protection’s (Cal Fire’s or Department’s) approval of a Timber Harvest Plan (THP 80) proposed by real party in interest Mendocino Redwood Company (MRC). Petitioner Forest Preservation Society (Petitioner) requested for writ of mandate, arguing that the Department:

  • Used an improper baseline for evaluating the impacts of THP 80 on climate change
  • Showed no substantial evidence to support its finding that THP 80 would not significantly impact climate change
  • Failed to fulfill its duty to create an enforceable mitigation and monitoring plan to alleviate the impacts on climate change

The trial court rejected these arguments and denied the petition, and the Court of Appeal upheld the denial. In summary, the Court of Appeal determined:

  • The Department did not abuse its discretion by relying on the California Air Resources Board’s Climate Change Scoping Plan — rather than the state’s 2020 and 2050 greenhouse gas (GHG) emission reduction targets — as the threshold of significance for evaluating the cumulative impacts on climate change resulting from project-related GHG emissions.
  • Substantial evidence, in the form of analyses showing that growth was scheduled to outpace logging across MRC’s ownership, supported the Department’s finding that the project’s cumulative impacts on global warming would be insignificant.
  • The Department does not have a duty to enforce mitigation and monitoring of potential impacts on climate change if there are no significant cumulative impacts. Additionally, THP 80 requires that all future MRC timber-harvesting plans and projects be subject to environmental review.

DRECP under review in an effort to alleviate burdens on energy development.

By Marc T. Campopiano, Joshua T. Bledsoe, Jennifer K. Roy, and James Erselius

The Bureau of Land Management (BLM) recently issued a notice of intent to review the Desert Renewable Energy Conservation Plan (DRECP) for potential burdens on domestic energy production in California. The BLM issued the notice on February 2, 2018, in response to Executive Order (EO) 13783, “Promoting Energy Independence and Economic Growth.” EO 13783 was issued on March 28, 2017, and requires the heads of federal agencies to review all existing agency actions that “potentially burden the development or use of domestically produced energy resources.”

Finalized in 2016, the DRECP established a framework to streamline permitting for renewable energy projects on public lands in the California Mojave and Colorado/Sonoran desert region. The DRECP covers renewable energy development activities, including solar, wind, and geothermal projects, as well as transmission facilities that service renewable energy projects. As discussed in a previous post, concerns from local agencies, industry, and environmental groups caused state and federal agencies to narrow DRECP’s focus to public lands only.

The corresponding Land Use Plan Amendment (LUPA), issued when the DRECP was finalized, affects land use planning decisions for all of the 10.8 million acres of federal lands within the 22 million total acres covered under the DRECP. The LUPA set aside certain BLM-managed lands for conservation and recreation, and identified priority areas for renewable energy development. As detailed in a prior post, the approved LUPA designates 388,000 acres of Development Focus Areas, which are lands identified as having high-quality solar, wind, and geothermal energy potential and access to transmission. In addition to Development Focus Areas, the approved LUPA designates: 40,000 acres of Variance Process Lands for renewable energy development; approximately 6.5 million acres for conservation; approximately 3.6 million acres for recreation; and 419,000 acres of General Public Lands, which lack a specific land allocation or designation. A land use plan amendment is needed to develop renewable energy in General Public Lands areas.

By Janice Schneider, Joel Beauvais, Stacey VanBelleghem, Jennifer Roy, and Francesca Bochner

On March 19, 2017, 52 new or reissued nationwide permits (NWPs) for discharges into “waters of the United States,” issued pursuant to Section 404(e) of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act went into effect. The U.S. Army Corps of Engineers (Corps) requires a Section 404 permit when development activities discharge dredged or fill materials into jurisdictional waters (i.e., “waters of the United States,” including wetlands). The NWPs – which are used to permit tens of thousands of new projects each year – cover a broad range of activities, including development of oil and gas pipelines, transmission and other utility lines, linear transportation projects, renewable energy, coal mining activities, and residential development. The Corps developed the NWPs as programmatic permits to expedite approval of specific types of activities deemed to have minimal environmental impacts. Seeking authorization under an NWP is less expensive and less time-consuming than obtaining an individual permit.

The prior NWPs were issued in March 2012 and expired on March 18, 2017. In the new NWPs, the Army Corps: (1) reissued all 50 of its existing NWPs, with revisions to twenty-seven; (2) issued two new permits; and (3) added one new general condition. The new NWPs include a grandfather provision that allows activities authorized under the 2012 NWPs that have commenced or are under contract to commence by March 18, 2017, to have until March 18, 2018, to complete the activity under the terms and conditions of the 2012 NWP. Activities that have not commenced by March 18, 2017, and/or will not be complete by March 18, 2018, must seek authorization under the new NWPs.

By Sara Orr, Jennifer Roy and Francesca Bochner

On December 14, 2016, the US Fish and Wildlife Service (FWS) finalized its proposed revisions to the Eagle Rule (Final Rule) and released its Record of Decision (ROD). The Final Rule allows companies and others to obtain 30-year incidental take permits under the Bald and Golden Eagle Protection Act of 1940 (the Act) in exchange for committing to conservation measures designed to reduce impacts to eagles.

As discussed in our previous articles (here and here), this is FWS’ second attempt at revising the Eagle Rule to allow for 30-year permit terms. The draft version of the revisions and the Draft Programmatic Environmental Impact Statement (DPEIS) were originally released on May 2, 2016. FWS accepted public comments on the proposed revisions and DPEIS until July 5, 2016, receiving over 700 comments from other agencies, public interest groups, industry organizations, and private citizens.

By Sara Orr, Jennifer Roy and Francesca Bochner

On July 5, 2016, the public comment period closed for the US Fish and Wildlife Service’s (FWS) proposed revisions to the rules authorizing eagle take permits under the Bald and Golden Eagle Protection Act (Eagle Act) and accompanying Draft Programmatic Environmental Impact Statement (PEIS), paving the way for FWS to complete and release a final rule, possibly as early as the end of this year.

FWS originally released the revised proposed rules on May 6, 2016, as discussed more fully in our previous post. FWS received over 700 comments on the proposed revisions and Draft PEIS from other agencies, public interest groups, industry organizations, and private citizens.

By Joshua Bledsoe, Sara Orr and Stacey VanBelleghem

On August 2, 2016, the White House Council on Environmental Quality (CEQ) issued its final guidance for federal agencies to assess the impact of their decisions on greenhouse gas emissions (GHGs) and also how such decisions may be impacted by a changing climate (e.g., future sea level rise impacts on a long-term infrastructure project proposed for a coastal barrier island) when conducting reviews under the National Environmental Policy Act (NEPA). The final guidance follows CEQ’s issuance of draft guidance in 2010 and revised draft guidance in 2014, incorporating consideration of public comments and feedback on the two drafts. Following this six-year process, CEQ’s guidance is a recommendation to federal agencies versus a formal legal requirement and therefore does not have the same authority as a federal rule or regulation.

The guidance does not establish any particular quantity of GHG emissions as representing a significant burden on the environment – that determination will be left to the discretion of the agencies. However, the guidance does prohibit the so-called “de minimis approach” where an agency would compare a Federal action’s GHG emissions to global GHG emissions, finding that since the action did not represent a meaningful percentage of the global GHG inventory, the action did not significantly affect the environment.

By Sara Orr and Bobbi-Jo Dobush

On July 7, 2016, the US Fish and Wildlife Service (FWS) announced its Record of Decision (ROD) for the Upper Great Plains Wind Energy Programmatic Environmental Impact Statement (PEIS).[1] This is the final step in a process that US FWS, along with Western Area Power Administration (Western), embarked upon in 2010 to streamline the environmental review process for wind energy projects in the Upper Great Plains (UPG).[2] The process applies to wind energy projects in Iowa, Minnesota, Montana, Nebraska, North Dakota, and South Dakota that would interconnect to Western’s transmission facilities or require the US FWS to consider an easement exchange to accommodate placement of project facilities.

Western, which is responsible for marketing and delivering wholesale power in the western United States and is the joint lead agency on the PEIS, announced its ROD adopting Alternative 1 on August 26, 2015.[3] Eleven months later, US FWS made its final decision and also adopted Alternative 1 of the PEIS which supports US FWS participation in easement exchanges for wind development and provides for expedited environmental reviews (including review pursuant to the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA)) if developers follow specified best management practices, minimization and mitigation measures. Now that US FWS has issued its Record of Decision, it may implement the PEIS when permitting wind energy projects involving easement swaps within Western’s Upper Great Plains region.