March 8, 2010
On February 18, 2010, the Council on Environmental Quality (“CEQ”) released a long-anticipated draft guidance document addressing how the effects of climate change and greenhouse gas (“GHG”) emissions should be analyzed under the National Environmental Policy Act (NEPA).
The CEQ guidance stresses that NEPA “demands informed, realistic governmental decision making.” Accordingly, the guidance instructs federal agencies to include a discussion of climate change within the scope of its NEPA analysis when an analysis of the direct and indirect of GHG emissions from proposed actions “may provide meaningful information to decision makers and the public.”
To put some meat on the bones of its overarching standard for “meaningful information”, the guidance deems projected direct annual CO2-equivalent GHG emissions from a proposed action of 25,000 metric tons or more “an indicator that a quantitative or qualitative assessment may be meaningful to decision makers and the public.”
However, the 25,000 metric ton figure is not a firm standard. The guidance makes clear that impacts from long-term projects with emissions below 25,000 metric tons annually may also warrant analysis. The Guidance goes on to list a number of technical documents that can assist agencies in quantifying GHG emissions for the purpose of a NEPA review. The Guidance also states expressly that the 25,000 ton standard should not be seen as an indicator of the significance of potential impacts of an action.
Apart from GHG emission, the Guidance also provides that, when appropriate, agencies should consider the potential effects of climate change on, or in combination with, a proposed action. According to the Guidance, climate change effects should be considered in the analysis of projects designed for long-term utility and located in climate-change vulnerable areas. It states that as such “the observed and projected effects of climate change that warrant consideration are most appropriately described as part of the current and future state of the proposed action’s ‘affected environment.’” The Guidance emphasizes that, in light of the uncertainties associated with climate change predictions, in considering the future effects of climate change, monitoring programs should be considered for inclusion in NEPA decision documents.
The draft Guidance specifically does not address what climate-change related impacts rise to the level of “significance” – thus requiring the preparation of an EIS. Rather, it seems to assume that agencies will analyze climate change within whatever NEPA document is otherwise being prepared for an action. However, CEQ has asked for comment on whether the final Guidance should address significance.
The Guidance attempts to strike a balance between requiring an assessment of GHG emissions and climate change impacts within the scope of NEPA review where it would be meaningful, while limiting the scope of such review so it does not run afoul of the “rule of reason,” the principle that agencies should focus on the usefulness of the potential information to the decision making process when determining the scope of its NEPA review. To that end, CEQ makes clear that agencies should use the NEPA scoping process “to set reasonable spatial and temporal boundaries” on any GHG assessment and, most importantly, “focus on aspects of climate change that may lead to changes in the impacts, sustainability, vulnerability and design of the proposed action and alternative courses of action.” It is clear that CEQ is not looking for wholly academic discussions of climate change in NEPA EAs and EISs, and also does not want a discourse on “wholly speculative effects.” Rather, the Guidance favors a discussion of GHG emissions and climate change in a manner where it could meaningfully impact the decision making process subject to the NEPA review, such as cases where the NEPA review could be used “to reduce vulnerability to climate change impacts, adapt to changes in our environment, and mitigate the impacts of Federal agency actions that are exacerbated by climate change.” In that vein, the Guidance emphasizes the importance of comparing the climate change-related effects of various project alternatives.
Thus, the emphasis of the Guidance is precisely where it should be – to provide information and analysis consistent with NEPA’s “rule of reason.” Of course, like most things NEPA, the devil is in the details. While this draft Guidance document, when finalized, will provide some useful broad overarching principles to determine the scope of any GHG/climate change analysis, as well as some specific tools to assist agencies in conducting that analysis, it will be left to the agencies – and ultimately the federal courts – to grapple with these issues in the context of the myriad federal actions with the potential to cause GHG/climate change impacts or that are potentially vulnerable to climate change impacts.
CEQ will receive public comment on the guidance documents for 90 days. The guidance documents and instructions for submitting comments are available here: www.whitehouse.gov/ceq/initiatives/nepa.
January 8, 2010
In addition to the New York City Department of Environmental Protection and the Natural Resources Defense Council, the United States Environmental Protection Agency (“EPA”) has submitted comments on the New York State Department of Environmental Conservation’s (“DEC”) Draft Supplemental Generic Environmental Impact Statement (“DSGEIS”) addressing natural gas drilling in the Marcellus Shale formation.
In a letter dated December 30, 2009, EPA expresses several concerns with the DSGEIS. EPA notes that the original GEIS that the DSGEIS supplements was issued in 1992 and expresses concerns that existing conditions may have significantly changed since that time. In addition, EPA asserts that the analysis and discussion of cumulative and indirect impacts in the DSGEIS should be significantly expanded. EPA encourages both the New York State Public Service Commission, which has regulatory authority over the pipelines that would transport the natural gas, and the New York State Department of Health, which has primary enforcement responsibility under the Safe Drinking Water Act, to take a more active role in the SEQRA process.
EPA joins with the DEP in expressing serious concerns over potential adverse impacts to the New York City water supply, and notes that water sources serving upstate communities deserve similar protection. Accordingly, EPA suggests that EPA, DEC and DEP work together to “develop an enhanced oversight approach” that would allow for the coordination of applicable regulatory programs to better protect drinking water supplies that could be impacted by natural gas drilling. EPA also encourages DEC to release information regarding the chemical composition of hydrofracturing solutions, which to date has been closely guarded by industry under claims that such composition represents a trade secret not subject to public disclosure. Access a complete copy of EPA’s comment letter here (pdf).
October 29, 2009
On October 27, 2009, the New York State Court of Appeals held that individuals who can prove that they use and enjoy a natural resource frequently for repeated recreational use, more so than the public at large, may have standing under the State Environmental Quality Review Act (“SEQRA”) to challenge government actions that threaten that resource. In Save the Pine Bush v. Common Council of the City of Albany (“Pine Bush“), Save the Pine Bush and nine of its members brought an action under SEQRA challenging the City of Albany’s (the “City”) acceptance of a Final Environmental Impact Statement (“FEIS”), which concluded that the proposed rezoning of a 3.6 acre parcel to allow construction of a hotel would not have a significant impact on the Karner Blue butterfly or its habitat. Petitioners argued that they had standing because they lived near the site of the hotel project and used the Pine Bush for recreation and to study and enjoy its unique habitat. The closest petitioner lived approximately one-half mile from the Pine Bush.
The Court held that petitioners met the test for standing outlined in Society of Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761 (1991) (“Society of Plastics”), where the court held that the standing of an organization is “established by proof that agency action will directly harm associate members in their use and enjoyment of the affected natural resources.” This harm must be “different from that of the public at large.” Id. at 774. Society of Plastics has often been cited for the proposition that adjacent property owners or occupants may suffer harm for standing purposes, because in that case petitioners argued standing based on their adjacent property. However, in Pine Bush, petitioners alleged harm based on repeated use of the natural resources at issue for recreation, at a level greater than that of the public at large. The Court held that petitioners demonstrated that their injury was real and different from the injury faced by the public at large. The Court refused to adopt a rule, proposed by the City, that only those who own or inhabit property adjacent to, or across the street from, a project site may allege environmental harm.
However, the Court dismissed the petition on its merits, holding that an agency complying with SEQRA does not have to investigate every conceivable environmental problem. The City had discretion, within reasonable limits, to determine which environmental issues were relevant. The City took the requisite hard look at the potential adverse impacts on the Karner Blue butterfly, and its decision not to consider the potential impacts on other species (i.e., the frosted elfin butterfly, hognosed snake, worm snake, and spadefoot toad), “matters of doubtful relevance,” was within the City’s judgment.
This ruling provides further guidance on standing requirements for citizens under SEQRA and potentially other environmental claims. New York’s highest court has made clear that a petitioner may establish standing based on repeated, frequent recreational uses of a resource, which expose them to injury that is different from the public at large. As noted by the Court of Appeals in its decision, this route to establishing standing is similar to existing standing law in the federal courts, where injuries to recreational interests are recognized as a cognizable basis for standing. However, Court of Appeals was also cognizant of setting the barriers to standing too low, noting that SEQRA challenges “can generate interminable delay and interference with crucial government projects.” Id., slip. op. at 10. Petitioners, the Court noted, will have to do more than make “perfunctory allegations of harm” – each element must be supported by proof as with all matters where the burden falls to the petitioner. It remains to be seen whether in practice this ruling will result in a significant widening of the courthouse door for petitioners alleging environmental harms.
October 5, 2009
The New York State Department of Environmental Conservation (“DEC”) has released its draft Supplemental Generic Environmental Impact Statement (“SGEIS”) for natural gas drilling activities in the Marcellus Shale formation. The draft SGEIS supplements the existing 1992 Generic Environmental Impact Statement (“GEIS”) and analyzes the range of potential significant adverse environmental impacts of shale gas development using horizontal drilling and high-volume hydraulic fracturing known as “hydrofracking”. The draft SGEIS outlines safety measures, protection standards, and mitigation strategies that operators would have to follow to obtain permits.
The City of New York has a particular interest in the SGEIS because the Marcellus Shale formation underlies a significant part of the Catskill watershed which provides much of the City’s drinking water supply. Erosion, runoff, and possible contamination of groundwater with toxic chemicals are just three of the potential dangers highlighted in a report prepared for the City by environmental consultants Hazen and Sawyer/Leggette, Brashears and Graham. This report, available here in PDF, found that in addition to construction-related surface water impacts, the presence of a wellbore can “allow previously isolated contaminants to flow into shallow groundwater or surface water.” The SGEIS would allow drilling within a few hundred feet of reservoirs, with some mitigation safety measures in place. This would include the need for a site-specific State Environmental Quality Review Act (“SEQRA”) review in certain instances. Use of hydrofracking in locations outside of New York is thought to have contributed to groundwater contamination, with further investigations underway.
DEC is accepting public comments on the SGEIS from now until November 30, 2009. Mayor Bloomberg hasn’t yet given the City’s comments, nor the City’s overall position on the State’s plan, but has said he’ll do everything in his power to keep reservoirs safe.
August 28, 2009
Last week, the Federal Energy Regulatory Commission (FERC) and the state of Maine signed an agreement to collaborate on the review of tidal energy projects, with the aim of fast-tracking the approval process. The FERC-Maine agreement creates a framework intended to streamline all aspects of the review of tidal energy demonstrations as well as developments, including their environmental review, in order to get such projects “into the water” as quickly as possible. FERC is charged with regulating the interstate transmission of electricity, natural gas, and oil.
This agreement marks the first of its kind involving the federal government and an East Coast state; FERC has similar agreements Washington and Oregon.
Controversy continues over the process known as hydraulic fracturing (or “hydrofracking”) to recover underground natural gas deposits. Preliminary results from water sampling conducted by EPA have revealed chemical contaminants used in hydrofracking in wells utilized for drinking water in Pavillion, Wyoming. The results, while preliminary, may be the first demonstrated instance of hydrofracking causing contamination to water supplies.
Hydrofracking is currently being considered for use in a number of states, including New York, which is preparing an environmental impact statement for the potential use of hydrofracking for recovery of natural gas in the Marcellus Shale formation. The development of the Marcellus formation has been encouraged in the New York State Draft Energy Plan of 2009, calling also for safeguards in place to protect water supplies. Other states, including North Dakota, have defended the technology as environmentally safe (pdf). In addition, Congress is considering regulating hydrofracking by removing an exemption for the process under the Safe Drinking Water Act.
If contamination of water supplies can be confirmed as being linked to hydrofracking, it will no doubt impact the debate, and future potential uses of the technology.
August 12, 2009
Pursuant to Executive Order No. 2 of 2008, the 2009 New York State Energy Plan is now available in draft form. The purpose of the plan is to:
set forth a vision for a robust and innovative Clean Energy Economy that will stimulate investment, create jobs, and meet the energy needs of residents and businesses over its 10-year planning horizon. To that end, the Plan provides the framework within which the State will reliably meet its future energy needs in a cost-effective and sustainable manner, establishes policy objectives to guide State agencies and authorities as they address energy-related issues, and sets forth strategies and recommendations to achieve these objectives.
The draft plan includes assessments on energy demand, price, and efficiency; renewable energy; electricity resources, markets and modeling; natural gas; petroleum; and coal. Issue briefs are also available on topics including energy infrastructure, siting of new energy infrastructure, environmental justice, climate change, and environmental impacts of energy systems.
Public hearings will be held between August 18 and September 26 on the plan. Comments may be submitted until October 9, 2009, and may be submitted electronically.
The plan is available here, and more information on the State’s Climate Action Plan, ordered by Governor Paterson, is available here. Read more below for additional detail on the Plan’s draft strategies and recommendations.
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