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Four Things to Know About US EPA’s Draft WOTUS Rule
by outdoorwire. 04/12/19 03:55 PM
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Legal Issues
04/12/19 04:17 PM
Over the past two years the Trump Administration has initiated a fast-paced agenda of rolling back environmental regulations, while also reexamining enforcement priorities. At the same time, the Administration has accelerated permitting of energy, infrastructure, and other development projects. In response, citizen challenges to those actions have increased. Brought by public interest groups, states, and local governments, those challenges have taken several forms, including lawsuits against private parties for alleged violations of environmental laws, and those against federal agencies challenging regulations (or rollbacks), policies, and permit issuances. Recently, there also has been an uptick in attempts to use more traditional legal tools and common law to address emerging environmental issues, with a particular focus on climate change and per- and polyfluoroalkyl substances (PFAS). The regulated community should be prepared to address citizen suits on several fronts, including challenges to federally issued permits for infrastructure and energy projects. It is also vitally important to track “replacement” environmental regulations, bearing in mind that the vast majority of those regulations will be challenged judicially.

Citizen Suits and the Administrative Procedure Act

Many cornerstone environmental laws, including the Clean Air Act (CAA), Clean Water Act (CWA), Resource Conservation and Recovery Act (RCRA), and Endangered Species Act (ESA), contain citizen suit provisions which authorize two types of lawsuits: (1) enforcement actions against entities that violate environmental laws, including permit limitations and other regulatory and statutory requirements; and (2) actions to compel agencies to carry out nondiscretionary duties, including promulgating statutorily required regulations or acting on a listing petition under the ESA within a specific time frame. See CAA, 42 U.S.C. § 7604; CWA, 33 U.S.C. § 1365; RCRA, 42 U.S.C. § 6972; ESA 16 U.S.C. § 6972.

A number of environmental and natural resources statutes—most notably, the National Environmental Policy Act (NEPA)—do not contain citizen suit provisions allowing a lawsuit to be brought directly under the relevant statute. In those cases, challenges are often brought under the Administrative Procedure Act (APA), alleging that the agency acted in a manner that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.SC. § 706.

Citizen Enforcement Suits Against Regulated Entities

Lawsuits asserting violations of environmental laws provide an avenue for citizens or groups to compel compliance in the absence of agency enforcement. There has been an increase in citizen suits against a host of regulated entities in recent years, and suits against energy companies and utilities—whether meritorious or not—will likely continue to be filed.

In one high-profile example, the Supreme Court recently agreed to hear a case that originated as a citizen suit contending that a wastewater reclamation facility in Hawaii violated the CWA by discharging (without a permit) treated effluent through wells into groundwater which was hydrologically connected to the Pacific Ocean. See Cty. of Maui v. Hawaii Wildlife Fund, No. 18-260.

Another recent example arising under the CWA is a suit alleging that a utility violated conditions of its Water Quality Certification designed to ensure that discharges from its hydroelectric facilities complied with state water quality standards. See Deschutes River Alliance v. Portland Gen. Elec. Co., No. 3:16-cv-1644 (D. Or., filed Aug. 12, 2016). The court found that the plaintiff’s claims properly arose under the CWA’s citizen suit authority, but determined that the utility did not violate the Certification’s requirements. See id., Docket No. 128, Opinion and Order (Aug. 3, 2018).

Challenges to Rulemakings and Rule Rollbacks

There has been a notable uptick in judicial challenges by environmental groups and citizens to agency actions since President Trump took office. Many prominent challenges have used the APA to oppose regulatory rollbacks or suspensions of Obama-era regulations.

One recent example disputed a technique used by the Trump Administration to stall implementation of Obama-era rules: since there is a lag time associated with replacing those rules, the effective date is delayed until a rollback can be effectuated or a substitute promulgated. In that case, the state of California and several environmental organizations challenged the Trump Administration’s decision to suspend the effective date of the Bureau of Land Management’s (BLM) Obama-era methane rule, which would have limited methane emissions from oil and gas development and production sites on federal lands. See California v. BLM, 286 F. Supp. 3d 1054 (N.D. Cal., July 17, 2018). The plaintiffs prevailed, and the court preliminarily enjoined the suspension. However, due to the promulgation of a replacement rule in September 2018 and the expiration of the suspension under its own terms in January 2019, the case is currently being held in abeyance.

Although many replacement rules have not yet been finalized, those that have been promulgated have faced swift opposition. For instance, the BLM replacement methane rule referenced above was challenged mere days after issuance. See California, et al. v. Zinke, No. 4:18-cv-05712 (N.D. Cal., filed Sept. 18, 2018); Sierra Club v. Zinke, No. 4:18-cv-5984 (N.D. Cal., filed Sept. 28, 2018). Other replacement rules—including those related to the Clean Power Plan, the Mercury and Air Toxics Standard, the Fuel Economy Standards, the Methane New Source Performance Standards, and Waters of the United States—are in various stages of the administrative process, but likely will be promptly challenged once final rules are issued. As discussed in a previous alert, that will lead to a somewhat uncertain policy and regulatory environment for the foreseeable future.

Challenges to Federal Authorizations

Numerous lawsuits have been filed under the APA, often led by environmental groups, opposing federal authorizations, permits, and approvals issued to specific projects—especially in the energy sector. Those actions include highly publicized challenges to federal permits for proposed pipelines, including the Dakota Access Pipeline, the Keystone XL Pipeline, and the Mountain Valley Pipeline. See, e.g. Supplemental Complaint, Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 1:16-cv-1534 (D.D.C., filed Nov. 1, 2018) (challenging the Army Corps of Engineers decision affirming the issuance of permits for the Dakota Access Pipeline); Appalachian Voices et al. v. FERC, No. 18-1216 (D.C. Cir. 2019) (upholding the Federal Energy Regulatory Commission’s issuance of a certificate of public convenience and necessity to the Mountain Valley Pipeline).

Lawsuits also have challenged agency actions that authorize future resource development but do not authorize specific projects, such as the sale of oil and gas leases on public lands. Recently, for example, the United States District Court for the District of Columbia found inadequate the climate analyses underpinning lease sales in Wyoming. See WildEarth Guardians v. Zinke, No. 1:16-cv-1724 (D.D.C., Mar. 19, 2019). Responding to a NEPA-based action brought by two nonprofit organizations, the court concluded that the BLM had not sufficiently considered climate change in authorizing the leases and had failed to analyze greenhouse gas emissions linked to drilling and downstream uses of the oil and gas produced from the leases. Although the court left the leases in place for the time being, it remanded the climate analyses to the BLM to address these deficiencies and—significantly—enjoined the BLM from issuing related drilling permits in the interim.

Challenges to federal authorizations have had a mixed success rate, but they often delay project implementation. Project proponents should anticipate challenges to federal permits and other authorizations, and plan ahead by building appropriate safeguards into financing and contracting arrangements, working cooperatively with the issuing agency to build a strong and defensible record, and when appropriate, working with stakeholders in advance to proactively address issues of significant interest.

Citizen Suits to Compel Agency Action

Agencies also may face citizen suits if they fail to take nondiscretionary action. Those types of challenges typically result from an agency failing to issue regulatory standards when it is required to do so, or missing a deadline by which it must take a particular action or set a certain standard. One common example is the failure of the US Fish and Wildlife Service to respond to or otherwise meet deadlines for a petition seeking to list a species as endangered or threatened. See 16 U.S.C. § 1533; Friends of Animals v. Jewell, 828 F.3d 989 (D.C. Cir., 2016). Similarly, citizen groups frequently file actions and notices of potential lawsuits against the Environmental Protection Agency (EPA) under the CAA or CWA for failure to meet deadlines for setting air quality or water quality standards, reviewing state-submitted plans, or designating geographical areas as being in attainment with air quality standards. See, e.g. Letter from Howard Learner, Envtl. Law & Policy Ctr., to Administrator Andrew Wheeler, EPA (Mar. 13, 2019). These types of suits are common in any administration, including in the Trump Administration.

Common Law Claims

Increasingly, as environmental laws have not been successful vehicles through which to force action on emerging environmental issues, plaintiffs have turned to more traditional, common law approaches. The vast majority of those efforts have focused on climate change and attempts to address PFAS contamination.

An early attempt to use common law to address climate change was rejected by the Supreme Court in American Electric Power v. Connecticut, 564 U.S. 410 (2011). In that case, the state of Connecticut claimed that the defendant utility companies created a public nuisance because carbon emissions from their generation facilities contributed to climate change. Id. at 418–19. The Supreme Court rejected that argument, concluding that federal common law in this area was displaced by the CAA and that Congress had entrusted EPA to decide how greenhouse gases should be regulated. Id. at 424.

Since AEP, plaintiffs have attempted to use other common law avenues to address climate change. Recently, a number of local governments have sought damages from fossil fuel companies for climate change-related injuries. See, e.g., City of New York v. BP, No. 18-2188 (2d Cir.); County of San Mateo v. Chevron, No. 18-15499 (9th Cir.). In those cases, plaintiffs allege that the defendants are responsible for greenhouse gas emissions, which have injured and will continue to injure plaintiffs via impacts related to climate change, including sea level rise. Claims have been brought under state law for trespass and private and public nuisance; to date, no court has awarded damages.

In another high-profile case, a group of youth plaintiffs asserted constitutional claims against the federal government for failure to reduce carbon emissions. See Juliana v. United States, No. 6:15-cv-01517 (D. Or., filed Aug. 12, 2015). Those plaintiffs have alleged that the federal government’s failure to take action to address climate change violates the Due Process Clause, equal protection principles, unenumerated rights reserved under the Ninth Amendment, and the public trust doctrine. Although that challenge was filed in 2015 against the Obama Administration, the Trump Administration has been vigorously defending the lawsuit.

Similarly, lawsuits related to emerging contaminants found in groundwater—known as PFAS—are on the rise. In the absence of promulgated state or federal standards, those suits rely on common law claims including personal injury, negligence, property damage, and product liability to address the persistent presence of those contaminants. Many of those challenges have been styled as class actions, including those filed in Colorado, Michigan, New York, and Pennsylvania, as well as a nationwide claim filed in Ohio. In the meantime, we expect regulatory activity to address PFAS will continue, both on state and federal levels.

Conclusion

Environmental litigation against federal agencies and private parties has accelerated over the past two years as citizens challenge regulatory rollbacks, new regulations, permitting decisions, and agency inaction. It is unlikely that these challenges will slow or wane. The regulated community should be prepared to defend against citizen suits alleging violations of environmental laws and consider intervening to defend challenges to agency permitting decisions. Businesses and project proponents should devote increased attention to tracking challenges to regulatory actions and should participate in defense of those regulations where appropriate, whether through robust comments or as an amicus.

Source: Lexology
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All About Water
04/12/19 03:55 PM
On February 14, 2019, the US Army Corps of Engineers and US EPA (Agencies) published in the Federal Register the proposed rule to revise the definition of “Waters of the United States,” the term that identifies the scope of federal jurisdiction under the Clean Water Act. The proposed rule is the second step in a two-part process to revise the definition, consistent with one of the first Executive Orders issued by President Trump. The Clean Water Act prohibits the unpermitted discharge of pollutants, including soil or fill material in water bodies, wetlands and even some normally-dry lands. Accordingly, as the definition of waters of the United States (WOTUS) expands, so does the federal government’s control over construction and other activities affecting these areas. The Agencies note that they are attempting to “preserve[] the traditional sovereignty of States over their own land and water resources[,]” and the proposed rule is widely expected to narrow the overall number of waters subject to federal jurisdiction.

The comment deadline on the proposed rule is April 15 — there are four points to be aware of in deciding whether to comment on the proposal:

1. The number of wetlands subject to federal jurisdiction will decrease, as the Agencies are largely following Justice Scalia’s more narrow test for federal jurisdiction. Current law regarding WOTUS depends on the state where the water body is located, as we have covered previously. Under the existing law in states that follow the Obama-era WOTUS rule promulgated in 2015, a wetland is considered WOTUS if it is “adjacent” to a tributary or navigable water. A wetland is “adjacent” if, among other possibilities, it is (1) within 100 feet of the ordinary high water mark of a tributary or navigable water; (2) within the 100-year floodplain of a tributary or navigable water; or (3) located within 1,500 feet of the Great Lakes or a high tide line. Under the new proposal, a wetland will be a federally-covered water if it is abuts or has a direct hydrologic surface connection to another WOTUS. This test is inspired by Justice Scalia’s plurality opinion in the Rapanos decision, and President Trump directed the Agencies to consider this approach in an Executive Order. In adopting this more straightforward approach, the Agencies have noted their preference for bright lines and predictability. This surface connection must be either perennial or intermittent, and cannot be present “ephemerally” (only in response to rain or snow). Under the new proposal, close does not count — there must be a direct surface connection.

2. The proposed rule favors predictability and certainty in casting aside “significant nexus” test. For many years, the regulated community has complained about the lack of certainty in determining whether a particular water body is subject to federal jurisdiction — both the Obama-era and Trump-era rules acknowledge this uncertainty, and state that they are designed to simplify the process. Under the 2015 rule, however, the Agencies continued to evaluate some waters under the fact-specific evaluation to determine whether a particular water body had a “significant nexus” to another WOTUS — if it did, then both waters were under federal jurisdiction. This test is based on Justice Kennedy’s Rapanos concurring opinion, which concluded that, for a water to be subject to federal jurisdiction, it must have a “‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” Under the new proposal, the Agencies explain that they are adopting a more categorical approach, rather than continuing to use the fact-specific “significant nexus” relationship between waters. In support, they have cited to a finding by the Science Advisory Board that there is a “gradient of connectivity” between waters, and the Agencies have concluded that the new rule provides a predictable and implementable framework by drawing a clear line on this gradient and disposing of the subjective “significant nexus” evaluation.

3. The treatment of infrequently-flowing tributaries has changed. Under the 2015 rule, all tributaries were categorically federal, whether they flowed “perennially,” “intermittently,” or “ephemerally.” Under the new proposal, tributaries are covered only if they contribute flow to a navigable water “in a typical year.” A “typical year” means “within the normal range of precipitation over a rolling thirty-year period for a particular geographic area.” Tributaries are covered even if they contribute this flow indirectly (i.e., through another federal water). Commentators have mentioned that this is likely to be a significant issue in the west, where infrequently-flowing features are more common. However, it may also affect ditches in water-rich states, which are subject to federal regulation in some cases.

4. Exclusions are everything. The proposed rule lists numerous “exclusions,” which are likely to generate significant attention. Although prior iterations of the definition have also featured these exclusions, the Agencies’ revisions and ruminations regarding alternative approaches are likely to generate significant attention. For example, the proposed rule states that its exclusion for “stormwater control features” is intended to encourage green infrastructure. It also proposes new or modified exclusions for “water-filled depressions” related to mining activity and ditches. Finally, it proposes a new constraint on the exclusion for “prior converted cropland” — if this land is abandoned for five years, the exclusion would be inapplicable under the proposed rule.

The rule will affect a broad variety of industries, which should evaluate not only the proposed framework, but also the multi-part alternative considerations for which the Agencies are seeking comments.

Source: Lexology
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Access Roundtable
04/12/19 03:49 PM
The Department of the Interior recently announced six new Records of Decision that amend Resource Management Plans for the Greater Sage-Grouse.

The Sage-Grouse, also known as a Sagehen, was a candidate for listing as an endangered species during the early portion of the decade. Interior did not list the bird due in significant part to the collaborative conservation efforts of the governments in the western states, the oil and gas industry, and private landowners. In 2015, then-Interior Secretary Sally Jewell issued Resource Management Plans, seeking to coordinate the national effort to preserve Sage-Grouse habitat.

Many states found the plans issued by the Department of the Interior to be overly burdensome, claiming that they lacked coordination with ongoing state conservation efforts. In 2016, the State of Utah filed suit against the Department of the Interior and the Department of Agriculture, claiming the plans conflicted with existing federal policy and did not consider existing state conservation efforts. Utah, for example, achieved a 40% increase in Sage-Grouse population with its then-existing state plan.

The amendments arrive following a 2017 request from then-Interior Secretary Zinke to review the Resource Management Plans for the Sage-Grouse. The announced changes require that Interior seek more consistency and alignment with state conservation efforts. The amendments do not affect the existing plans in Montana or the Dakotas. The amended plans can be found by clicking on the appropriate state:

Colorado
Wyoming
Utah
Nevada/Northeast California
Idaho
Oregon
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Socio-Ecomonics
04/04/19 05:05 PM
Last year NOHVCC asked for Partners and others to share recent OHV economic impact studies so NOHVCC could make them available to the OHV community. As usual our Partners responded. In addition, staff has collected various other economic impact studies that we were aware of. Take a look below to read a brief description of each study and click the link to download a pdf version.

These studies can be used to show the dramatic positive impact of OHV recreation (and, in some cases, all recreation) can have on communities. They can also serve as inspiration for those who are seeking to quantify the impact of OHV use in their area.


Iowa Off-Highway Vehicle Operations, Operators, Expenditures And Economic Impacts

February 1, 2019

Iowa off-highway vehicle owners spent approximately $72.4 million in 2018 on in-state operating expenses and related personal expenses. Total Iowa asset purchase and operating/personal expenditures generated approximately 1,018 jobs in the Iowa economy paying an average of $42,850 annually. Off-highway vehicle owners spent about $28.9 million outside the state of Iowa in 2018. If that had been spent in-state, it would have generated $34.9 million in Iowa industrial output and 374 jobs paying annual incomes of $31,180 per job.

Downloand the Study


Economic Impact of Off-Highway Recreation in the State of Arizona

2019

In 2016–2017, Arizona State University conducted a study to measure the economic impact of OHV recreation, by retained and out of state visitors, on the State of Arizona. A retained visitor is defined as a local visitor who would have traveled outside the State of Arizona if OHV trails had been absent. The study makes use of web-based questionnaires in addition to onsite surveys at geographically dispersed popular trail locations.

Download the Study


Outdoor Recreation Satellite Account: Updated Statistics for 2012-2016

September 20, 2018

Updated statistics from the Outdoor Recreation Satellite Account (ORSA) released by the U.S. Department of Commerce’s Bureau of Economic Analysis (BEA) show that the outdoor recreation economy accounted for 2.2 percent ($412 billion) of current-dollar GDP in 2016 (table 2). In data produced for the first time, using inflation-adjusted (real) GDP, the outdoor recreation economy grew 1.7 percent in 2016, faster than the 1.6 percent growth for the overall U.S. economy (table 6). In addition, real gross output, compensation, and employment all grew faster in outdoor recreation than in the overall economy in 2016.

Download the Study


MO-MOTO OHV Incorporated – OHV Tourism Economic Impact Overview

2018

OHV recreation is a proven financial stimulus to the tourism market with the average rider spending a minimum of $100 on a single day trip. We should encourage struggling areas to embrace OHV tourism as we have the opportunity to directly impact and benefit financial success of local businesses. We can connect rural Missouri to OHV trails, which would provide new employment and income while bringing new money to these distressed regions. OHV tourism can diversify the economy of South East Missouri and create a culture of entrepreneurship based around trail oriented business (outfitters, rentals, guides, cabins, hotels, restaurants, etc) the same way the state park industry has to several Missouri communities.

Download the Study


Backcountry Discovery Routes® and Tourism: How Adventure Motorcyclists Can Help Your Community

In 2017, BDR routes generated $17.3 million in new tourism expenditures, with the average traveling party spending $3,769 on their BDR trip.

Download the Study


Oregon Off-Highway Vehicle (OHV) Participation and Priorities

August 2015

On a per-trip basis, Oregon resident OHV riders spent more than OHV riders across all national forests in the country, perhaps due in part to more riders in each travel party and more nights per trip. Spending by Oregon residents on OHV riding trips (local and distant, day and multi-day) was an estimated $100 million per year across the state. In turn, this expenditure contributed 869 jobs, $35 million in value added, and $23 million in labor income. When out-of-state visitors are included, the estimated amounts increase to 1,120 jobs, $45 million in value added, and $29 million in labor income.

Download the Study


Economic Contribution of Off-Highway Vehicle Recreation in Colorado

2014-2015 Season

During the 2014–2015 season, motorized recreational enthusiasts spent an estimated $1.6 billion while taking trips using motorized vehicles for recreational purposes. More than 92 percent of these expenditures occurred during the summer recreational season. In addition to spending money on trips, households that participate in motorized recreation also spend money on maintenance, repairs, accessories, vehicle storage, and miscellaneous items associated with their vehicles. Motorized recreational enthusiasts spent more than an estimated $724 million annually on various items to support and enhance their experiences in Colorado, including $163 million in new vehicle purchases. In total, motorized recreational enthusiasts were responsible for $2.3 billion in direct expenditures related to motorized recreation in Colorado during the 2014–2015 season.

Download the Study


The Economic and Fiscal Impact of the Hatfield-McCoy Trail System in West Virginia

July 11, 2014

The analysis indicates that the nearly $1.7 million in spending conducted by the Hatfield-McCoy Trails for day-to-day operations generated an additional $1.6 million in economic activity within the State, for a total operational impact of $3.3 million. Even more notably, the Hatfield-McCoy Trails bring non-local visitors to the area whose spending is estimated to generate an additional $19 million in economic activity in West Virginia. Together, the total estimated economic impact of the Hatfield-McCoy Trails is more than $22 million.

Download the Study


Economics of Idaho Off-Highway Vehicle Recreation

June 23, 2014

Off-highway vehicle (OHV) recreation in Idaho is big business. Idaho OHV enthusiasts took close to 1 million recreation trips in Idaho during 2012 and spent about $434 million – $186 million on OHV recreation trips and $248 million on OHV capital expenditures such as the vehicles themselves.

Download the Study


Economic Importance of Off-Highway Vehicle Recreation: An Analysis of Idaho Counties

2014

During the period August 2012 through November 2012, the University of Idaho, in cooperation with the Idaho Department of Parks and Recreation (IDPR), surveyed Idaho’s registered off-highway-vehicle (OHV) owners. The goal of the survey was to determine the economic importance of OHV use in Idaho during the previous 12 months. The survey sample was drawn from IDPR-registered OHV owners. OHV activities not related to recreation (e.g., work) and out-of-state visitors could not be sampled. Trips and expenditures for OHV recreation in Idaho would be higher if nonresident OHV recreation could be estimated.

Download the Study


Montana Recreational Off-Highway Vehicles – Fuel-Use and Spending Patterns

2013

Residents spend about $208 million per year on OHV activities, and nearly all their entire out-of-pocket trip costs are for gasoline. We estimate that OHV users buy about 6.6 million gallons of gasoline per year. With a base tax of $0.27 per gallon, resident OHV users in Montana generate over $1.8 million in revenue for the state highway trust fund.

Download the Study


The Economic Contributions of Outdoor Recreation: Technical Report on Methods and Findings

2012

This study is an update and expansion of an earlier study of active outdoor recreation produced in 2006 by the Outdoor Industry Association. The 2006 study focused solely on human-powered (i.e. non-motorized) activities. While this study includes the same human-powered activities as the earlier work, an additional survey was conducted to gauge the economic contributions of outdoor recreation.

Download the Study


A Snapshot of the Economic Impact of Outdoor Recreation

2012

Outdoor recreation spending in Western states equaled $255.6 billion – nearly 40% of the national total. This includes purchases of outdoor gear and vehicles as well as travel expenditures when enjoying the great Western outdoors.

Download the Study


Source: NOHVCC
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NEPA
03/26/19 04:08 PM
The Trump Administration has prioritized modernization of the National Environmental Policy Act (NEPA) in the context of its broader regulatory and infrastructure permitting reform efforts, initiating the most significant potential overhaul of the landmark policy since its creation in the early 1970s. This modernization effort is focused on streamlining interagency coordination processes and holding agencies accountable to time limits for environmental reviews. Based on a study of 1,161 Environmental Impacts Statements (EISs) conducted from 2010 to 2017, the White House Council on Environmental Quality (CEQ) found that the average EIS completion time, from notice of intent to record of decision, was 4.5 years. Reforms aimed at decreasing these timeframes have been cheered by project developers and investors, and viewed with alarm by project opponents. The current Administration has not acted quickly enough to make any significant changes to NEPA likely before the end of the President’s first term, but if President Trump is re-elected in 2020, it has laid a foundation to advance significant changes to NEPA rapidly.

CEQ’s role

Like many of its reform initiatives, the Trump Administration’s NEPA modernization process began with the issuance of an Executive Order (E.O.) and accompanying policy directives. On August 15, 2017, President Trump issued E.O. 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.” The E.O. states that the federal government needs to “change the way it processes environmental reviews and authorization decisions.” To accomplish this goal, the E.O. lays out a series of directives aimed at streamlining NEPA decision making. Principal among these include directing CEQ to develop a framework for implementing the “One Federal Decision” policy and to modernize the environmental review and authorization process.

The One Federal Decision policy provides greater specificity to the “lead agency’s” coordinating responsibilities in the development of EISs and the issuance of Records of Decision (RODs) that accompany them. CEQ issued a joint guidance document with the Office of Management and Budget (OMB) that enumerated these responsibilities in detail while directing federal agencies with NEPA implementing responsibility to enter into a “Memorandum of Understanding for Implementation of the One Federal Decision” (MOU). Significantly, the 12 agency signatories to the MOU committed themselves to advancing EO 13807’s policy goal of completing all NEPA reviews and authorizations within a two-year timeframe.

Historically, CEQ has shied away from setting time limits for environmental reviews and, while reviews may take much longer than they should due to bureaucratic inefficiencies, it is not clear that setting an arbitrary time limit will lead to better project evaluation or outcomes.

With respect to modernizing efforts, the EO directs CEQ to develop a list of actions within 30 days. CEQ’s first action in response was an Advanced Notice of Proposed Rulemaking (ANPRM) seeking public input on a wide range of potential changes to its NEPA implementing regulations. These –include changes to definitions of key NEPA terms such as “Major Federal Action,” “Cumulative Impact,” and “Significantly” and provisions in the current regulations regarding timelines for completing NEPA documents and agency actions. Not surprisingly, the June 20th 2018 ANPRM was welcomed by industry and met with skepticism by the environmental community. CEQ received over 12,000 comments on the ANPRM. After months of analyzing these public comments, CEQ is expected to soon submit a notice of proposed rulemaking to OMB’s Office of Information and Regulatory Affairs (OIRA), where it will be under interagency review for up to 90 days before another public comment period. CEQ will likely propose specific changes aimed at narrowing the scope of Federal actions subject to environmental review and streamlining how the reviews are conducted.

The proposed rule will garner greater attention from stakeholders than the previous ANPRM given that it is now proposing more specific reforms to the way NEPA is administered. It remains to be seen whether CEQ will be able to complete the rulemaking process by the end of the Administration, given the limited time remaining in the term, large number of public comments it will likely receive, and requirement that it respond before finalizing the rule.

On April 5, 2017, CEQ withdrew the Obama Administration’s “Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews,” ” viewed by the Trump Administration as an impediment to advancing its energy policy agenda.

Courts still requiring consideration of climate change impacts under NEPA

Despite withdrawal of the guidance, subsequent court opinions have complicated the question of whether reviewing agencies must consider climate change impacts during NEPA reviews. In August of 2017, for example, a divided Ninth Circuit Court of Appeals ruled that FERC’s EIS for the Sabal Trail Pipeline did not contain enough information regarding downstream greenhouse gas (GHG) emissions that would result from burning the gas that the pipeline would carry. The court required FERC to “either quantify and consider the project’s downstream carbon emissions or explain in more detail why it cannot do so.”

In another case, involving a coal mine, a U.S. Magistrate Judge for the District of Montana entered Findings and Recommendations in favor of environmental advocacy groups and against Federal Defendants and the Defendant-Intervenor coal company. The U.S. Magistrate Judge found that the Department of Interior’s Office of Surface Mining’s (OSM) NEPA review of the mine violated NEPA because, among other things, OSM did not consider the indirect effects of coal combustion. The court rejected OSM’s sole reliance on “a broad scale national comparison” to evaluate those effects, concluding that, [b]ecause OSM only tallied estimated emissions but did not adequately discuss the effects of downstream coal combustion, the Court finds OSM failed to take a ‘hard look’ at the non‑[GHG] effects of coal combustion.” The Court further found that, because “OSM quantified the benefits of the mine expansion, it was required to quantify the costs” as well. By “fail[ing] to justify its failure to quantify the economic costs of [GHG] emissions[,]” the Court decided that OSM also “failed to take a ‘hard look’ at the costs of [GHG] emissions.”

CEQ has recognized the need to provide greater clarity on GHG emissions to federal agencies and project sponsors in the face of these court rulings. On February 6, 2019, CEQ submitted to OIRA revised draft guidance entitled, “National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions.” Although the document will likely cover additional topics, it is expected that it will provide specific details on how agencies should account for the downstream climate change impacts of energy extraction and transmission projects. The guidance will be under review for a period of up to 90 days while the document undergoes the interagency review process.

Agency-specific initiatives related to streamlining NEPA

E.O. 13807 also directed CEQ to form an interagency working group to review agency NEPA regulations, identify impediments to efficient and effective environmental reviews, and develop actions plans to address them. The Department of Interior (DOI) and the U.S. Forest Service have been the most proactive on this front, both initiating rulemaking processes that could significantly change how NEPA is administered by the federal land management agencies.

DOI

On August 31, 2017 , for example, the DOI issued a Secretarial Order to: 1) immediately implement certain improvements to NEPA it conducts, including setting page and timing limitations for environmental impact statements2) begin assessment of additional such opportunities; and 3) implement Executive Order 13807. Among the most specific substantive provisions, the Order contained a Directive stipulating that EISs issued by DOI are not to exceed 150 pages. Like the two-year time limit for Agency NEPA reviews, it is not clear that this arbitrary limit would have a significant impact on improving project outcomes or achieving greater NEPA compliance. The memo also sets a "target" for DOI’s Bureaus to complete each Final EIS for which it is the lead agency within one year from issuance of a Notice of Intent (NOI) to prepare an EIS. While this ambitious goal goes further than the E.O. 13807 two-year timeline and is an aggressive effort to streamline DOI’s notoriously slow EIS process, significant unintended consequences could potentially result from such truncated reviews.

In the Fall 2018 semiannual regulatory agenda, DOI included an entry for a proposed rule to streamline its NEPA regulations, “by increasing the number of categorical exclusions and updating our NEPA regulations.” With a target publication date for a proposed rule of September 2019, DOI will likely face a challenge with the Congressional Review Act (CRA) if it seeks to finalize it, given the virtual certainty that the rule will be caught up in the “midnight regulation” period accompanying the final months of presidential incumbencies. Under the CRA, Congress can review and overturn agency rulemakings with a simple majority vote in both chambers within a 60-day legislative day window of a final rule’s publication in the Federal Register. This means that, if there is a change in Administration and a Trump Administration rule is not finalized 60 legislative days prior to the inauguration, it is in play for Congressional repeal if the opposing party has a majority. With 34 Senate seats up for grabs in 2020, a Democratically controlled house will likely exercise this authority with vigor, given the Trump Administration’s unprecedented use of the CRA to overturn 16 of the Obama Administration’s regulations.

Department of Agriculture

The U.S. Forest Service, which is part of the Department of Agriculture, has taken fewer aggressive steps to reform NEPA than DO. That said, it has nonetheless quietly advanced its rulemaking process further than Interior. In January of 2018, the Service issued an ANPRM seeking public comment on a wide array of changes to its current NEPA regulations. Notably, it specifically sought comment on specific actions that would warrant categorical exclusions, approaches to landscape - scale analyses and decision-making, and ways to expand and enhance its coordination with state, local and tribal environmental review processes. In November of 2019, the Forest Service submitted a proposed rule that advances specific proposed changes to NEPA for OMB review.

NEPA regulatory changes likely, but still uncertain

Given the precedential nature of the likely proposed changes, the interagency review process will likely be conflict prone, requiring OMB and CEQ to make difficult policy calls to adjudicate these disputes. Once the proposal is published in the Federal Register, the public will play an important role in shaping how these contemplated changes to NEPA will proceed.

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Source: Lexology
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