Underground Construction - September 2020 - 12

WASHINGTONWATCH

Stephen Barlas | Washington Editor

Pro-Pipeline Changes to NEPA Challenged
One lawsuit has already been filed contesting the President Trump administration's
July pro-pipeline changes to the National
Environmental Policy Act (NEPA). The
White House Council on Environmental
Quality's (CEQ) gave the Federal Energy
Regulatory Commission (FERC) new
authority to discount greenhouse gas
emissions when approving applications for
new interstate pipeline construction.
That was the major, but not the only,
boost to pipeline construction provide
by the CEQ when it published new NEPA
rules. Among other things, the new rules
constrict the kinds of "effects" federal
agencies must consider when preparing
an environmental impact statement
(EIS). The CEQ changes affect all federal
agencies, not just FERC.
The new rules go into effect ostensibly on
Sept. 12, 2020. But the first lawsuit aiming
to set the new rules aside was filed in
federal district court in Virginia on July 29.
If Democrats gain control of the Senate and
White House in November, they could pass
legislation making the NEPA changes moot.
"We will pursue every legal avenue to fight
back against this anti-democratic, racist
and deeply destructive plan," said Michael
Brune, Sierra Club executive director.
The lawsuit filed on July 29 by a number
of regional "riverkeeper" groups and the
National Trust for Historic Preservation
argues the CEQ violated the Administrative
Procedures Act, which lays out steps federal
agencies must take in making rules changes.
These groups argue the CEQ: "...
disregarded clear evidence from over
40 years of past implementation; ignored
the reliance interests of the citizens,
businesses and industries that depend
on full and complete NEPA analyses; and
turned the mandatory public engagement
process into a paper exercise..."
According to the law firm Hogan Lovells,
the outcome of the November election
could stop the rule in its tracks. Under the
Congressional Review Act, a new rule that
was issued within 60 legislative days before
12

SEPTEMBER 2020 | UCONonline.com

Congress' adjournment prior to an election
can be repealed by Congress.
"This NEPA rule would fall within that
time frame and repeal is likely if the
election results in Democrats controlling
Congress or if there is a change in the
White House," the law firm said.
Despite the cloudy legal and political outlook, the Interstate Natural Gas Association
of America (INGAA) praised the changes.
"Most importantly, this modernization
will improve environmental outcomes and
restore the intent of NEPA by ensuring
federal agencies focus their attention on
significant environmental impacts that are
relevant to their respective decision-making authorities," said Alex Oehler, interim
president and CEO of the INGAA.
The NEPA requirements come into play
for all sorts of infrastructure projects:
highways, railroad rights of way, logging
and pipelines. For gas transmission lines,
some recent federal court decisions have
opened the door to confusion regarding
FERC's responsibility to include upstream
or downstream greenhouse gas emissions
when considering the environmental effects
of a new pipeline and compiling an EIS.
The final rule from the CEQ, which
would clear up that ambiguity, requires
agencies consider environmental effects
that are "reasonably foreseeable and have a
reasonably close causal relationship to the
proposed action."
In addition, the CEQ stated that when
an agency considers "reasonable alternatives" to an infrastructure project, which
the agency is required to do under NEPA,
those alternatives must be "technically
and economically feasible," and meet the
purpose and need for the proposed action.
The old version of NEPA said that when
performing an EIS, the federal agency had
to consider direct, indirect and cumulative
effects of the project. That language is now
stricken, although "cumulative effects" -
and some might say this could be stretched
to apply to greenhouse gas emissions - can
be considered, if they are reasonably fore-

seeable and have a reasonably close
causal relationship.
Casey Bradford, a partner with the law
firm Jones Day, wrote in a commentary
on Lexology, that the CEQ left some wiggle
room for federal agencies to consider greenhouse gas emission if they can articulate
a close causal relationship to a proposed
action. But she expects such cases to be rare.
"With the CEQ's analogy to proximate
causation, the amendments likely narrow
the window of success for arguments based
on upstream or downstream emissions,"
Bradford wrote. "Furthermore, the repeal
of 'cumulative impacts' from the CEQ's regulations removes what has been the other
major framework for considering and litigating climate change effects under NEPA."
In comments to the CEQ in March after
the proposed rule was issued, INGAA
pressed for exclusion of upstream/downstream effects from NEPA analysis of
natural gas infrastructure projects.
"Neither upstream production nor downstream combustion activities are within
the scope of FERC's authority under NGA
Section 7, and both activities are regulated
by other agencies under federal and state
laws other than the NGA," INGAA said.
Other changes of note made by the CEQ:
* Establishes presumptive time limits of
two years for the preparation of EISs
and one year for the preparation of
environmental assessments
* Requires joint schedules, a single
EIS, and a single record of decision,
where appropriate, for EISs involving
multiple Federal agencies
* Allows applicants/contractors to assume
a greater role in preparing EISs, with
appropriate disclosure of financial or
other interests and with supervision and
independent evaluation by the agency.

PHMSA ratifies industry
request on MAOP
The Pipeline and Hazardous Materials
Safety Administration (PHMSA) published
a final rule in mid-July granting transmis-
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