Underground Construction - May 2020 - 12

WASHINGTONWATCH

Stephen Barlas | Washington Editor

CEQ Pro-Pipeline NEPA Changes
Generate Heated Attacks
In Washington, D.C. on Feb. 22, 2020,
Christy Goldfuss, former managing
director of the White House Council
on Environmental Quality (CEQ)
under President Obama, stepped to the
microphone during a public hearing and
attempted to drive a rhetorical stake
through the heart of the U.S. interstate
pipeline industry.
She assailed the President Trump
CEQ for proposing reforms to the
National Environmental Policy Act
(NEPA) announced in January, saying
the CEQ proposed rule "will let fossil
fuel companies move forward with
pipelines and other major, dirty projects
without disclosing harmful public health,
environmental and climate change
impacts. We know what's driving this: the
trade associations, FERC, others who want
to lock in fossil fuel development."
The CEQ proposal includes changes to
the wording and timelines in the NEPA -
which controls the scope of environmental
impact statements - in an attempt to
modernize the 30-year-old law. Many
of those pro-pipeline changes parallel
recommendations made last December by
the National Petroleum Council.
That report was honchoed at the staﬀ
level by Amy Shank, Williams Cos. director
of pipeline safety and asset integrity. While
some of the changes are signiﬁcant, they
do nothing to cure the current problem of
states refusing to grant permits after FERC
completes a ﬁnal environmental impact
statement and green lights a project.
An industry attorney involved in
both the NPS report and the Interstate
Natural Gas Association of America
(INGAA), who did not want to be
identiﬁed, commented on the January
proposal, saying "The proposed CEQ
regulations incorporated many of
the NPC recommendations."
Among the signiﬁcant changes is the
elimination of the need of environmental
12

MAY 2020 | UConOnline.com

This has been a controversial
issue lately, with FERC
discounting GHG emissions
despite somewhat confusing
federal court dictates on
the issue.
impact statements to consider cumulative
eﬀects when deciding whether to approve
a pipeline. It emphasizes that agencies
need not consider every available
alternative, nor any alternatives outside
their jurisdiction, and limits consideration
of environmental impacts to only those
that are "reasonably foreseeable" and
have a close, causal relationship to the
proposed action. These changes, and
another having to do with page limits
for EISs, would help agencies like the
FERC keep a two-year maximum time
frame for completing an EIS.
The "reasonably foreseeable" language
was greeted by the pipeline industry as
the basis for buttressing FERC's current
thinking that the volume of upstream and
downstream greenhouse gas emissions
ought not normally be considered with a
new interstate pipeline project. This has
been a controversial issue lately, with
FERC discounting GHG emissions despite
somewhat confusing federal court dictates
on the issue.
The CEQ proposal doesn't discuss
GHG emissions speciﬁcally, although the
agency has published draft guidance of how
those emissions should be handled
in an NEPA proceeding.
Cynthia Taub, a partner in Steptoe
and Johnson LLP's D.C. oﬃce, who leads
Steptoe's NEPA permitting practice,
said, "The draft GHG guidance provides
support for limiting consideration of
GHG emissions from federal projects and
therefore would provide additional support
for the position that FERC's NEPA review

need not include an analysis of upstream/
downstream GHGs.
"Some parties have urged CEQ to
tackle the issue in the ﬁnal rule so that its
interpretation might carry more weight
than it would in a guidance document,"
Taub added.
INGAA thinks FERC already has the
legal authority to discount GHG emissions
when ﬁnalizing an EIS. Sandra Snyder,
vice president at INGAA, in her comments
to the CEQ, argued FERC has no ability
categorically to prevent upstream or
downstream activities.
"CEQ's proposal recognizes these
legal and practical limits when it clariﬁes
that NEPA does not require an agency
to analyze an eﬀect it has no ability to
prevent or that would occur regardless of
the proposed action," Snyder wrote.
Environmentalists and some state
oﬃcials strongly oppose the CEQ proposal.
Claiborne Walthall, from the New York
Attorney General's Oﬃce, said at the public
hearing, "We object to CEQ's dismantling
of NEPA review by narrowing key terms,
gutting review of cumulative eﬀects and
alternatives, imposing arbitrary time and
page limits, discouraging judicial review,
and sweeping away decades of guidance,
practice and precedent. Under the
proposed rule, NEPA reviews will ignore
signiﬁcant eﬀects and increase litigation,
delays and uncertainty."
Despite strong opposition from some
quarters, the CEQ changes would only
speed the completion of environmental
impact statements prior to a project
being green lighted by FERC, and perhaps
reduce the potential barriers to a positive
outcome of that EIS. The reforms of NEPA
proposed by the CEQ don't ameliorate
what conceivably is a bigger problem:
states refusing to approve permits for
construction after an EIS is completed
and an agency, such as FERC, approves
construction.
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