January 26, 2012
Last week, DEC proposed two new regulations affecting power plants in New York State. Both implement provisions of the Power NY Act of 2011, and both apply to proposals to construct or modify power plants with the capacity to generate at least 25 megawatts.
First, DEC proposed carbon dioxide emissions limits for new and expanded power plants (so long as the expansion adds at least 25 megawatts of capacity). These limits are measured on the basis of a 12-month rolling average by dividing the total emissions of CO2 by the total megawatts generated or fuel input into the plant.
The limits are:
- 925 pounds of CO2 per megawatt-hour of electrical output, or 120 pounds of CO2 per million Btu of input for combined cycle combustion turbines, stationary internal combustion engines firing only gaseous fuel, or boilers firing over 70% fossil fuel, and
- 1450 pounds of CO2 per megawatt-hour, or 160 pounds of CO2 per million Btu of input for simple cycle combustion turbines or stationary internal combustion engines firing either liquid fuel or a combination of liquid and gaseous fuel.
Second, DEC proposed regulations governing analysis of environmental justice issues when power plants are sited under the reauthorized Article X of the Public Service Law. According to DEC Commissioner Joe Martens, these are the first such regulations in the country.
The proposed environmental justice regulations require an initial analysis of the area immediately surrounding the proposed facility to determine whether that area includes an “environmental justice area” containing a minority or low-income community that may already bear a disproportionate share of environmental impacts. If so, an application to site a power plant must include an analysis of any significant adverse environmental impacts to the environmental justice area resulting from the plant’s operation or construction. Such an assessment must include:
- An analysis of the plant’s cumulative impact on air quality,
- A comprehensive analysis of the environmental justice area, and
- A comparison of that area to the county or other adjacent communities (for facilities proposed within New York City, this includes the entire city) to determine if the impacts to the environmental justice area are disproportionate.
The regulations also require the applicant to identify, analyze, and implement mitigation measures that will avoid any disproportionate significant adverse environmental impacts to the maximum extent possible. If the impacts cannot be avoided or minimized, the applicant must offset the impacts.
The proposed environmental justice regulations state that they are “not intended to … create any right to judicial review involving the compliance or noncompliance of any person with this Part.” DEC also acknowledges, however, that the Power NY Act “expressly provides for judicial review” of power plant siting determinations. Thus, it is unclear to what extent, if any, the proposed regulations’ disclaimer precludes judicial review of the Act’s mandatory environmental justice analysis, or whether such limitation would be deemed consistent with the underlying statute.
Comments on both sets of proposed regulations are due by 5 p.m. on March 15, 2012. Information on filing comments is available here.
For more information, contact Jeffrey Gracer.
October 17, 2011
Last week, the White House announced the selection of New York’s Tappan Zee Bridge and 13 other priority infrastructure projects for expedited federal permitting and environmental review. Sive, Paget & Riesel is serving as special environmental counsel on the Tappan Zee Hudson River Crossing Project, which is evaluating the proposed replacement of the Tappan Zee Bridge.
According to the White House, the projects were chosen because they are “high priority infrastructure projects that will create a significant number of jobs, have already identified necessary funding, and … the significant steps remaining before construction are within the control and jurisdiction of the federal government and can be completed within 18 months.” The announcement follows an August 2011 Presidential Memorandum directing federal agencies, including the Department of Transportation, to identify proposals for expedited and coordinated environmental review.
By improving coordination among federal agencies, reducing duplicative review and allowing reviews to be done concurrently, the White House expects to reduce the permitting process for the Tappan Zee Bridge by two and a half years. The Presidential Memorandum also calls for progress on these 14 projects to be tracked on a central website, which will provide information on outstanding government approvals and anticipated completion dates.
The Tappan Zee Bridge was built in 1950, and it costs the state $100 million annually for upkeep and repair. New York Governor Andrew M. Cuomo called the recent announcement “a shot in the arm for the [Tappan Zee Hudson River Crossing] project and a major step forward to restoring this key piece of infrastructure and putting tens of thousands of New Yorkers back to work.” The project is currently being reviewed under the National Environmental Policy Act, and construction could begin as soon as 2013.
August 8, 2011
With the Environmental Protection Agency (“EPA”) largely barred from regulating hydraulic fracturing (“fracking”) under the Safe Drinking Water Act, regulatory proponents have turned their attention to alternate means of controlling the industry’s environmental impacts. Last month, EPA proposed the first federal rules limiting air emissions from fracking operations, and on August 4, a coalition of environmental groups petitioned EPA to require the testing and disclosure of fracking fluids under the Toxic Substances Control Act (“TSCA”). Others have turned to the courts to compel greater environmental review of fracking’s impacts, with a new suit filed in the United States District Court for the Eastern District of New York late last week.
On July 28, 2011, EPA proposed a suite of new Clean Air Act rules governing the emission of volatile organic compounds (“VOCs”), sulfur dioxide, and air toxics from oil and gas extraction and transmission activities, including the first federal air standards for hydraulically fractured wells. During fracking, VOC emissions are often elevated during “flowback” periods, when fluids injected into wells return to the surface carrying contaminants that can evaporate into the air. EPA’s proposed rules would require wells to separate and capture natural gas and hydrocarbons during flowback, reducing emissions of VOCs by an estimated 95 percent.
Additional EPA rules may be forthcoming in response to a petition filed last week by Earthjustice on behalf of over 100 non-profit groups. The petition asks EPA to issue regulations under TSCA requiring manufacturers and processors of “chemical substances and mixtures used in oil and gas exploration or production,” including fracking fluids, to conduct testing on the toxicity and environmental and health impacts of their products and disclose the results to EPA. If the petition is denied, Earthjustice has suggested it would challenge EPA’s determination in court.
Fracking regulation is also moving forward on the state and regional level, with the Delaware River Basin Commission (“DRBC”) – a regional body consisting of four states and the Army Corps of Engineers – proposing rules governing hydraulic fracturing siting and operations in New York, New Jersey, Pennsylvania, and Delaware. New York Attorney General Eric Schneiderman has filed suit in federal court seeking to enjoin the finalization of those rules pending the preparation of an Environmental Impact Statement under the National Environmental Policy Act (“NEPA”). On August 4, the Delaware Riverkeeper Network, Hudson Riverkeeper, and National Parks Conservation Association brought a similar suit in the same court. Unlike New York, however, the environmental groups named DRBC as a defendant.
The U.S. Department of Justice (“DOJ”), on behalf the Army Corps of Engineers and other federal defendants, recently announced its plans to move to dismiss New York’s lawsuit on sovereign immunity, standing and ripeness grounds. There are also questions as to whether the proposal of a regional body is a “major federal action” governed by NEPA – an argument that DOJ reserved the right to raise at a later date as an additional ground for dismissal. A pre-motion conference on DOJ’s request for dismiss is scheduled for Wednesday, August 10.
July 1, 2011
On July 1, the New York State Department of Environmental Conservation (“DEC”) issued a revised Draft Supplemental Generic Environmental Impact Statement (“SGEIS”) recommending that high-volume hydraulic fracturing (“fracking”) be banned in the New York City and Syracuse drinking water watersheds but that fracking be allowed to proceed, subject to strict regulation, on private property. Fracking uses high-pressured water, combined with chemicals, to release natural gas present underground in shale formations.
The revised Draft SGEIS contains recommendations to mitigate the environmental effects of fracking. These recommendations, which would make approximately 85 percent of the Marcellus Shale accessible to natural gas production, include the following:
- Fracking would be prohibited in the New York City and Syracuse watersheds, including a buffer zone;
- Drilling would be prohibited within primary aquifers and within 500 feet of their boundaries;
- Surface drilling would be prohibited on state-owned land, including parks, forest areas and wildlife management areas;
- Fracking will be permitted on privately held lands under “rigorous and effective controls”; and
- DEC will issue regulations to codify these recommendations.
DEC’s present recommendations depart from those contained in an earlier 2009 Draft SGEIS, which would have permitted drilling in the New York City and Syracuse drinking water watersheds, and which would have allowed surface drilling for high-volume fracking in primary aquifers and on public forests, wildlife areas, and parkland. In December 2010, then-Governor David Paterson ordered DEC to revise the initial Draft, taking into consideration the voluminous public comments that had been submitted. This order was understood to impose a de facto moratorium on new permits until the issuance of the revised draft.
The import of DEC’s present findings to stakeholders such as upstate residents, downstate residents, municipalities, and industry cannot be fully understood without a thorough review of the revised Draft SGEIS, which is over 900 pages long. As with many comprehensive studies, the devil will be in the details. The revised Draft SGEIS will be posted on DEC’s website on July 8, 2011, and will be open for public comment for 60 days beginning in August. It is expected that another round of extensive public comments will follow.
As of July 1, DEC has posted an Executive Summary of the revised Draft SGEIS and other related information online. This website should contain the entire revised Draft SGEIS by July 8.
Click here for more information about hydraulic fracturing in New York.
June 23, 2011
As part of a deal at the end of the current legislative session, the New York Legislature has passed the “Power NY Act of 2011,” a sweeping energy bill negotiated between Governor Andrew Cuomo and legislative leaders. Section 12 of the new law reauthorizes and modernizes Article X of the Public Service Law, which expired on January 1, 2003, governing the siting and approval of power plants in New York.
The absence of a power plant siting law has been cited by some as one important reason why there has been scant development of power plants in New York in recent years, including alternative energy sources. (Others have cited the poor economy as the primary roadblock to new power plant development.)
Like its predecessor, the new version of Article X aims to centralize and streamline the siting approval process, although the threshold for application of the law has been lowered from 80 to 25 megawatts. The law creates and vests permitting authority with the New York State Board on Electric Generation Siting and the Environment (“the Board”). Seeking to balance the need for local input in siting decisions with the obstacles posed by “NIMBY” opposition to new power plants, the statute provides that two local residents will be part of the Board for each proceeding. The other five members of the Board will all be State officials. The law also provides for “intervenor funding” which will enable municipalities and other local parties to participate in all phases of the administrative review, including the mandated adjudicatory hearing.
The Board is given authority to override local laws and ordinances if they are “unreasonably burdensome.” Unless otherwise agreed to by an applicant or extended due to a “material and substantial amendment to the application” or “extraordinary circumstances,” Board decisions must be rendered within a year of the application being deemed complete.
Article X displaces the State Environmental Quality Review Act (SEQRA) process for covered projects, but mandates several environmental analyses of the facility’s impacts. These analyses include a “cumulative air quality analysis” of the combined effects from the proposed facility, other proposed sources and all existing sources; a description of the demographics of the surrounding community; and a description of “reasonable and available” alternative locations. It also requires the Board to find that the project minimizes or avoids disproportionate impacts on the surrounding community.
There are significant differences between the new version of Article X and the expired version. The lower 25 megawatt threshold will allow smaller projects to be covered by the law and may particularly benefit developers of wind projects, which in most cases would not have been covered by the expired version. The increased emphasis on environmental justice impacts addresses concerns stated by environmental groups. Current applicants for local and state permits for a power plant may elect to be covered by the new law.
In what appears to be the first legislative enactment that specifically and directly addresses greenhouse gas emissions, Section 21 of the Power NY Act requires the Department of Environmental Conservation to promulgate regulations “targeting reductions in emissions of carbon dioxide” for new power plants with a capacity of 25 megawatts or more.
Mark LeBel is a Summer Associate at Sive, Paget & Riesel, P.C.
June 9, 2011
On May 31, 2011, New York Attorney General Eric Schneiderman followed through on his threat to file a lawsuit seeking environmental review under the National Environmental Policy Act (“NEPA”) prior to the issuance of final natural gas development regulations by the Delaware River Basin Commission (“DRBC”). The DRBC is a federal-interstate entity formed by compact and concurrent legislation by the federal government, Delaware, New Jersey, Pennsylvania, and New York to manage the water resources of the Delaware River Basin. The DRBC released draft natural gas development regulations on December 9, 2010 which, if finalized, would potentially open up large portions of the New York City watershed for natural gas drilling. While further action by New York State would likely be necessary for such natural gas drilling within New York, the complaint also alleges several harms to New York from natural gas development within Pennsylvania. In particular, the complaint alleges that development within Pennsylvania would contribute to air pollution in New York City and hinder efforts to meet air quality goals required under the Clean Air Act.
The lawsuit names the Army Corps of Engineers, which has a seat on the DRBC, as well as the Fish and Wildlife Service, the National Park Service, the U.S. Department of the Interior, and the Environmental Protection Agency as defendants. It asks these federal agencies to prepare an Environmental Impact Statement before the DRBC finalizes the regulations. It specifically asks the agencies to consider the alternative of prohibiting development within the portion of the Delaware River Basin that is within the New York City watershed.
The main legal issue in the lawsuit will likely be whether the regulations are a “federal action” within the meaning of NEPA. According to the complaint, the DRBC responded to Schneiderman’s initial request for an environment impact statement with a letter stating that the DRBC is not a federal agency subject to NEPA. However, the complaint alleges that the Army Corps of Engineers and the other federal agencies involved in the development of the DRBC regulations are subject to NEPA. The complaint also alleges that the Council on Environmental Quality (“CEQ”), which oversees implementation of NEPA, has determined that the DRBC is subject to NEPA.
Mark Lebel is a Summer Associate at Sive, Paget & Riesel
June 6, 2011
The nation’s first tidal energy power plant may take shape in New York’s East River, under a pilot project recommended for approval last month by the Federal Energy Regulatory Commission (“FERC”). In December 2010, Verdant Power applied for a license to install 30 underwater turbines between Roosevelt Island and Queens, which would enable tidal power to be sold over the national electric grid for the first time ever.
Tidal power represents an often-overlooked but growing renewable energy source, more predicable than wind or solar power, but often encumbered by high start-up costs. The strong, fluctuating currents in the East River – which is actually a tidal strait between the New York Harbor and the Long Island Sound – make this water body an ideal location for the generation of tidal energy. Verdant previously tested six tidal turbines in the proposed project location; they were used to power a Gristedes supermarket and a parking garage on Roosevelt Island.
The need for FERC licensing and other federal approvals triggered the National Environmental Policy Act (“NEPA”), requiring an analysis of the project’s significant, adverse environmental impacts. On May 3, FERC released an Environmental Assessment reporting no such impacts, thereby allowing the project to move forward without a more intensive Environmental Impact Statement. In particular, with respect to local fisheries, FERC based its Finding of No Significant Impact on its finding of only “minimal impacts on aquatic resources” from Verdant’s prior turbines, and on the company’s plans to conduct additional monitoring throughout the phase-in of its new plant. The results of this monitoring, however, could affect analysis under NEPA for future tidal projects.
Older Posts »
|
|
| |
|
