March 27, 2012
As part of its ongoing effort to “modernize and reinvigorate” the National Environmental Policy Act (NEPA), the White House Council on Environmental Quality (“CEQ”) this month issued guidelines for streamlining federal environmental reviews under NEPA. While the 15-page guidance document primarily provides an overview of the time-saving strategies and tools contained in various existing CEQ regulations (rather than announcing new CEQ policy), it does clarify that many of the CEQ regulations that specifically refer to Environmental Impact Statements (“EIS”s) can also be applied to the preparation of Environmental Assessments (“EA”s).
The new guidance specifically endorses the use of scoping for EAs and encourages the coordination of federal NEPA reviews with state, local, and tribal environmental review processes and with reviews under other federal laws (such as the Endangered Species Act and the National Historic Preservation Act). The guidance also recommends that agencies use their websites to facilitate public review and comment on draft EAs and EISs when those documents are being circulated for review.
Other suggested strategies and tools for improving efficiency and timeliness in NEPA reviews include the following:
- Make NEPA documents more concise: Reviews should not be “encyclopedias of all applicable information,” but should include only enough discussion to show why more study is not warranted on insignificant issues. Reviews should be written in plain language to avoid unnecessary confusion or risk of litigation from ambiguous or opaque analysis.
- Integrate reviews early in the planning process: For actions initiated by non-federal entities, federal agencies should guide applicants to gather and develop environmental information and analyses in advance of submitting applications. This may include soliciting an environmental report from the applicant to facilitate the lead agency’s review.
- Adopt existing EAs or EISs and incorporate material by reference: Subject to public review requirements, CEQ regulations provide for the adoption of one federal agency’s EIS or portion of that EIS by another federal agency preparing an EIS or EA. Agencies can also incorporate relevant analyses and information from existing documents.
- Set clear time lines for NEPA reviews: CEQ recommends that agencies establish clear time limits and designate a lead person to shepherd the NEPA review process.
Prior steps taken by CEQ to help modernize NEPA include publishing guidance on the use of Categorical Exclusions, guidance on mitigation and monitoring, and draft guidance on the consideration of greenhouse gas emissions and climate change impacts in NEPA reviews. As previously discussed on this blog, the White House has selected the Tappan Zee Hudson River Crossing Project as one of fourteen priority infrastructure projects chosen for expedited environmental review and permitting under a CEQ pilot program.
March 9, 2012
On March 5, a court dismissed a lawsuit challenging one of the largest proposed developments in the New York metropolitan area outside of New York City. Tuxedo Reserve is a proposed planned community of almost 1,200 residential units and over 100,000 square feet of non-residential development in Tuxedo, New York. The project would preserve approximately three-quarters of the approximately 2,400 acres owned by the developer, a subsidiary of the New York City-based Related Companies. Tuxedo Reserve was issued amended approvals for its planned integrated development in 2010. Those amended approvals were challenged by a few local residents and two local environmental organizations. They claimed, among other allegations, that the amended approvals were issued in violation of the State Environmental Quality Review Act (SEQRA). The March 5 decision dismissed the 12-count lawsuit in its entirety for lack of standing and failure to state a claim upon which relief could be granted.
The court found that none of the petitioners had standing to sue. The decision held that the rebuttable presumption of harm arising from alleged proximity to a project site’s boundaries was offset by the presence of a significant conservation buffer that the developer plans to create along the perimeter of the project site. The court held that because that conservation buffer is designed to insulate the petitioners from the potential adverse impacts of the project, it rebuts the presumption that the plaintiffs’ proximity to the project forces them to suffer an injury different from that which would be endured by any other member of the general public.
The court also dismissed all of the non-SEQRA claims, holding that the Town Board had not violated the Open Meetings Law, had not acted unethically, and had not engaged in contract or spot zoning. The decision paves the way for this new planned community to move forward. The developer, Tuxedo Reserve Owner LLC, was represented by SPR both in the litigation and in the proceedings before the Town.
For additional information about this case or other land use matters, contact Steven Barshov.
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.
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