On January 6th, the White House Council of Environmental Quality ("CEQ") released a new Guidance on Consideration of Greenhouse Gas Emissions and Climate Change ("the Guidance") in permitting decisions, with significant implications for energy and infrastructure projects. Though this Guidance is effective as of the date of publication, it was issued on an interim basis and CEQ will consider comments until March 10th, after which it could be revised further.
CEQ's recommendations will influence the Biden Administration's analysis of greenhouse gas ("GHG") emissions in environmental reviews under the National Environmental Policy Act ("NEPA"), applying immediately to all newly proposed actions as well as some on-going NEPA reviews. While the Guidance is largely framed as a series of recommendations rather than requirements, it highlights best practices for environmental reviews that could help expedite project completions, improve agency decision making, and minimize litigation risks for developers.万博体育app手机登录归根结底,CEQ正努力确保机构和项目开发商充分关注气候影响,不无端延迟机构决策,特别是考虑到加速清洁能源基础设施是Biden爱慕气候议程的一个关键部分。
指南力求加深理解温室气体影响和替代物取舍,从而提高对联邦温室气体分析质量的期望。 项目开发商希望与联邦监管商密切合作,确保NEPA机构审查的充足性。万博体育app手机登录失败可能为项目反对者提供诉讼路径 。
Below万博体育app手机登录Encouraging Consistency in Agency Analysis of GHGs
CEQ's Guidance builds upon an earlier 2016 policy document, and is the latest in a series of efforts aimed at enhancing certainty in agency GHG analysis.[1] This Obama-era 2016 guidance was revoked and replaced by the Trump Administration,[2] and then ultimately reinstated by the Biden Administration in early 2021.[3] In the interim, court decisions have required some kind of analysis of project climate impacts under NEPA, without articulating clear generally applicable guidelines as to what level of review would be sufficient, thus resulting in uncertainty.[4]
CEQ is encouraging more certainty in addressing GHG consequences, while acknowledging that any such analysis must be conducted in a measured, proportional, yet thorough manner.CEQ实现这一点的主要方式是建议机构量化并联系相关温室气体影响
A万博体育app手机登录Quantifying GHG Emissions and Reductions
CEQ recommends agencies first quantify all reasonably foreseeable GHG emissions and reductions of a proposed action, any reasonable alternatives, and a no action alternative. In doing so, CEQ recognizes the unique nature of the climate emissions challenge, where the effects arise from a wide range of emissions activities. It thus notes, "NEPA requires more than a statement that emissions from a proposed Federal action or its alternatives represent only a small fraction of global or domestic emissions."[5] In other words, an agency is not absolved from analyzing GHG emissions because no single agency action has the ability to mitigate climate change on its own. Instead, an agency must recognize that adequate reforms will occur incrementally, and therefore analyze the emissions impacts of significant federal actions that contribute to, or remediate, climate impacts.[6] To do so, CEQ directs agencies to use tools that are commonly deployed by the private sector and government to quantify emissions.[7]
Using these tools, emissions increases and reductions should be quantified individually by constituent greenhouse gases, as well as aggregated in terms of total carbon dioxide equivalency. Additionally, where feasible, agencies are encouraged to represent the proposed action's annual emissions or reductions, especially when those emissions might vary over the life of the project.[8]
CEQ further instructs that agencies evaluate direct, indirect, and cumulative emissions as part of their environmental review. Among other things, CEQ notes that quantifying direct and indirect emissions "is generally essential to reasoned decision making."[9] Cumulative emissions are critical to consider given the nature of the climate problem, where detrimental effects flow from the accumulation of historic GHGs. Consideration of cumulative effects can be accomplished by summarizing and citing to the relevant scientific literature, as well as monetizing and contextualizing emissions as noted in the following section.[10]
Analyzing direct, indirect, and cumulative emissions is likely to be one of the most challenging aspects of CEQ's guidance to implement, and similar recommendations have already been the source of some controversy. For instance, in February 2022, the Federal Energy Regulatory Commission (FERC) issued a policy statement stating that for gas pipeline approvals FERC would review "GHG emissions that are reasonably foreseeable" including those resulting from upstream impacts—such as those tied to construction and operation of the project—and downstream impacts—such as emissions resulting from the combustion of transported gas.[11] Barely a month later, FERC re-designated this policy statement as a draft and invited additional comments after it garnered significant industry and political criticism.
CEQ attempts to tamp down such controversy by making clear that any analysis of GHGs should be bounded by principles of proportionality. They caution against "an in-depth analysis of emissions regardless of the insignificance of the quantity of GHG emissions that the proposed action would cause."[12] For example, "the relative minor and short-term GHG emissions associated with construction of certain renewable energy projects, such as utility-scale solar and offshore wind, should not warrant a detailed analysis of lifetime GHG emissions."[13] In order to further enhance efficiency and avoid duplicative efforts, CEQ expects that agencies will rely on and incorporate scientific and technical information on impacts from other, more expert, agencies, as well as international organizations and academic literature.[14]
B.Monetize and Contextualize GHG Emissions
Agencies should contextualize GHGs associated with a project after quantifying them. This can include monetizing climate damages using the "best available estimates" of the social cost of GHG ("SC-GHG") and placing emissions in the context of relevant climate goals and commitments.
The best available SC-GHG figure is currently in flux. Two years ago, the Biden Administration reconstituted an Interagency Working Group (IWG) on the SC-GHG, which issued an interim estimate of the SC-GHG in the spring of 2021. As detailed in a prior blog post, that estimate has been the subject of litigation and the IWG has yet to issue a final SC-GHG. More recently, EPA issued a regulatory document in the fall of 2022, which previewed a much higher SC-GHG than contemplated in the IWG's interim estimate.[15]
CEQ nonetheless notes that "in most circumstances" agencies should use the SC-GHG to analyze a proposed action and its alternatives. In doing so, the SC-GHG will empower agencies to make clearer comparisons of the GHG impacts of each action.[16] Monetizing emissions is particularly useful if: (a) the NEPA review monetizes other costs and benefits from the proposed action!替代物在不同时间或温室气体排放类型上有差异and (c) the significance of the climate impacts are hard to assess or not readily apparent without monetization.[17] Any such SC-GHG should be global in nature and utilize a discount rate that accurately reflects the harms climate change inflicts on future generations.[18]
Despite encouraging the monetization of GHG impacts, CEQ clearly states that "NEPA does not require a cost-benefit analysis where all monetized benefits and costs are directly compared." Utilizing SC-GHG to estimate the societal cost of GHG emissions does not create a requirement to do so.[19] However, if an agency considers a formal cost-benefit analysis appropriate, it is not prohibited from including or appending this analysis to its NEPA documents.
For any actions "with relatively large GHG emissions or reductions" or that "perpetuate reliance on GHG-emitting energy sources"—such as fossil fuels—agencies should explain how the proposed action and its alternatives would meet or detract from broader climate goals and commitments, such as federal or state goals or international agreements.[20] For example, agencies could discuss how the actions align with the U.S.机构应考虑使用更多语法或无障碍方法描述温室气体排放量,其中一些例子可包括使用“familiar度量法,例如家用每年排放量、公路上一定数车或加仑燃烧汽油平均量值”。 CEQ is also using this Guidance to encourage agencies to take actions that lower GHG emissions by building such considerations into the process. This underlines CEQ's desire to align government decision making with the Biden Administration's net-zero ambitions. Embedded in this approach is the hope that a more complete consideration of GHG impacts will lead to more climate-positive decision-making, even though NEPA does not require agencies to opt for the most environmentally friendly alternative.[22] CEQ provides advice on how to consider reasonable alternatives and mitigation measures that might address short- and long-term climate change effects, with the aim of promoting emission mitigations.[23] CEQ notes that agencies should also acknowledge the impacts of climate change on the proposed action (not just the impact of the proposed action on the climate) and embed considerations of climate adaptation and resilience into the formulation of the proposed action and alternatives.[24] CEQ also recommends evaluating reasonable alternatives that have lower GHG emissions, including technically and economically feasible clean energy alternatives to proposed fossil-fuel projects.[25] CEQ notes how "[s]ome proposed actions, such as those increasing the supply of certain energy resources like oil, natural gas, or renewable energy generation, may result in changes to the resulting energy mix as energy resources substitute for one another on the domestic or global energy market." CEQ encourages agencies to conduct a "substitution analysis" to understand how any energy project proposals will affect the resulting energy mix and GHG emissions. When doing this analysis, agencies should not assume that if any project does not go forward it will be replaced by one that generates identical emissions, such that net emissions relative to a baseline are zero.[26] Instead, agencies should conduct modeling that "accurately account[s] for reasonable and available energy substitute resources, including renewable energy."[27] By encouraging the consideration of renewable energy alternatives to fossil fuel infrastructure early in the NEPA process, CEQ is pushing agencies to prioritize permitting cleaner forms of energy, consistent with the Administration's broader climate policy goals. CEQ鼓励前方社区参赛,重点是考虑环境公义对温室气体排放的影响万博体育app手机登录One of the most effective ways to accomplish this, according to CEQ, is to leverage early planning processes to integrate GHG emissions and climate change considerations into the identification of alternatives to the proposed action, as well as any reasonable mitigation efforts. CEQ recommends that agencies use the scoping process to identify potentially affected communities and provide early notice of opportunities for public engagement, which is especially important "for communities of color and low-income communities, including those who have suffered disproportionate public health or environmental harms and those who are at increased risk for climate change-related harms."[28] Community engagement should begin in the scoping process and should recognize any unique climate-related risks and concerns posed by the proposed action. For example, CEQ discusses how "chemical facilities located near the coastline could have increased risk of spills or leaks due to sea level rise or increased storm surges, putting local communities and environmental resources at greater risk."[29] In these types of scenarios, agencies should meaningfully engage with affected communities in designing the action and selecting alternatives, "including alternatives that can reduce disproportionate effects on such communities."[30] Such early project engagement, before the contours of a project are fully fixed, can assist in improving project outcomes and building greater community-level support for a project. We will continue monitoring developments pertinent to NEPA reviews of energy and infrastructure projects in the coming months, including CEQ's final guidance on GHG analysis expected in March, and other efforts by the Biden Administration and Congress to reform federal permitting processes. [1] CEQ, Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews, 81 FR 51866 (Aug.万博体育app手机登录2016年4月5日CEQ撤销2016年最终指南。CEQ撤销联邦各部门和机构在国家环境政策法评审中审议温室气体排放和气候变化影响最终指南,III.Up-Front社区参与环境公义
[7] Guidance at 1201-1202. CEQ keeps a list of these tools on their website. See CEQ, GHG Tools and Resources, https://ceq.doe.gov/guidance/ghg-tools-and-resources.html.
[8] Id. at 1201.
[9] Id. at 1205.
[10] Id. at 1206.
[11] FERC, Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews, Docket No.万博体育app手机登录PL21-3-000, February 18, 2022.
[12] Guidance at 1201.
[13] Id.
[14] For instance, CEQ notes that "agencies may summarize and incorporate by reference the relevant chapters of the most recent national climate assessments or reports from the USGCRP and the IPCC" and encourages them to "engage other agencies and stakeholders with knowledge of related actions to participate in the scoping process to identify relevant GHG and adaptation analyses from other actions or programmatic NEPA documents." Guidance at 1208, 1210.
[15] Specifically, the February 2021 IWG estimates places the social cost of carbon at $51/ton, while the EPA in the fall of 2022 estimated the social cost of carbon at $190/ton. This larger estimate was derived in part by using lower discount rates.万博体育app手机登录See Supplementary Material for the Regulatory Impact Analysis for the Supplemental Proposed Rulemaking, "Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review," EPA External Review Draft of Report on the Social Cost of Greenhouse Gases: Estimates Incorporating Recent Scientific Advances, EPA-HQ-OAR-2021-0317 (September 2022).
[16] Guidance at 1202.
[17] Id.
[18] CEQ further notes that in utilizing a SC-GHG, agencies should keep in mind that currently available estimates "may be conservative underestimates because various damage categories (like ocean acidification) are not currently included." Id. at 1203.
[19] Id. at 1211.
[20] Id.
[21] Id.
[22] CEQ itself recognizes that "[n]either NEPA, the CEQ Regulations, or this guidance require the decision maker to select the alternative with the lowest net GHG emissions or climate costs or the greatest net climate benefits." Id. at 1204.
[23] Id. at 1203.
[24] Id. at 1208-1209.
[25] Id.1205 id>#em>
One of the Inflation Reduction Act's (IRA) notable features is the creation of a Greenhouse Gas Reduction Fund (GGRF). This fund could create a mechanism to quickly disburse up to $27 billion to clean energy technologies, without undergoing the sometimes laborious reviews required by the National Environmental Policy Act (NEPA). IRA § 60103.
The GGRF would allow the EPA Administrator to disburse $20 billion to "eligible recipients," which are defined as non-profit green banks that "provide capital, including by leveraging private capital, and other forms of financial assistance for the rapid deployment of low- and zero-emission products, technologies, and services." Id. Among these $20 billion, $8 billion would be dedicated to providing financial and technical assistance in low-income and disadvantaged communities. Id. Additionally, this provision of the IRA allocates $7 billion for the EPA Administrator to provide to either states, municipalities, tribal governments, or "eligible recipients." Id.
Because the IRA does not establish a minimum or maximum number of grant recipients—it only mandates that the Administrator make the grants "on a competitive basis"—it is conceivable that all the funds could be disbursed to a single National Green Bank. This potential model bears several similarities to the $27 billion Clean Energy and Sustainability Accelerator the White House previously announced as part of the American Jobs Plan (AJP), which we have previously covered. Indeed, the GGRF has been lauded by members of Congress who previously proposed the creation of a National Climate Bank or Clean Energy Accelerator as part of the AJP,[1] who have noted that the GGRF could be used to launch a National Green Bank.[2]
A central bank is only one option. The Administrator could also fund several regional banks, or provide additional capital to pre-existing green banks in states like Connecticut and New York.[3]
Whether central or regional, proponents of the green bank model are optimistic about the model's ability to increase the pace and scale of investment. For this reason, proponents of the green bank model sometimes refer to the model as an "accelerator" given the ability for these funds, through focused investments, to "accelerate" investment in certain clean energy technologies. Those champions believe that an investment in a National Green Bank (or several regional green banks) will catalyze additional private spending, and result in a larger proportional increase in the development and deployment of clean energy technologies. Accordingly, if the initial investments and grants are successful, the green banks may be self-perpetuating and not require additional appropriations from Congress.
Finally, there is some optimism that this green bank model could result in streamlined funding for certain projects. Because the EPA administrator would be providing funding directly to the green bank(s)—not to the qualifying emissions-reduction projects—there is no federal government involvement in the administration of loans, grants, or other financial assistance for these projects. While the initial decision by the administrator to provide financing to a green bank or state, local, or tribal government might itself be subject to some sort of judicial or environmental review, the subsequent disbursement of funds from the green bank would not be a "federal action." Without "federal action," NEPA's environmental analysis requirement may be inapplicable, accelerating the timeline by which capital could be transferred to certain clean energy projects. While it is debatable how much NEPA currently slows down environmental permitting, streamlining the permitting process for energy projects is a priority for certain key members of Congress. Notably, in Senate Majority Leader Chuck Schumer (D-NY) and Senator Joe Manchin's (D-WV) joint statement announcing the IRA, the senators explained that they have an agreement with President Biden and Speaker of the House Nancy Pelosi (D-CA) to "pass comprehensive permitting reform legislation before the end of this fiscal year." This emphasis on speed echoes and underscores the IRA's commitment to rapid decarbonization.
[2] The statement of Senator Chris Van Hollen (D-MD), one of a the GGRF's key proponents, seems to imply that the law is meant to create a National Green Bank.
[3] Senator Van Hollen has previously referred to the success of state-level green banks when discussing his proposed Clean Energy And Sustainability Accelerator.
As we have described in prior posts, the social cost of carbon is a tool that expresses in dollar amounts the estimated cost to society of a one metric ton increase in CO2 emissions. Developed by a federal interagency working group (IWG) originally to aid cost benefit analysis in rulemaking context, the tool also has potential use in the project approval, by informing agency assessments of environmental impacts under the NEPA. By and large, however, courts have accepted agency decisions not to utilize the SCC in their analysis, often relying on the well-established rule that NEPA generally does not mandate cost-benefit analysis. See 40 C.F.R.1502.22.
Enter Vecinos, the most recent decision in an evolving area of law. The case concerned FERC approval of liquefied natural gas export terminals and pipelines in Texas. As it has in past projects, FERC quantified the greenhouse gas emissions associated with construction and operation of the facilities, but declined to consider the significance of those effects on the project's contribution to climate change. The Commission justified this position on the grounds that there is no "universally accepted methodology to attribute discrete, quantifiable, physical effects on the environment to" an individual source's greenhouse gas emissions. Local residents, environmental groups, and a nearby city challenged, arguing, inter alia, that the Commission was obligated to use the social cost of carbon in light of 40 C.F.R.§1502.21,CEQ执行NEPA规范要求机构评估基于理论方法或研究方法的影响,即“科学界普遍接受”,即“无法获得可合理预见重大不利影响相关信息”。
d.C电路判定委NEP分析不充分。它关于碳 < ahrf='##ftn1命名s'#ftnref1>>>[1]社会成本的决定完全取决于FERC未考虑§1502.21的潜在效果,而FERC命令或简介中则未讨论或引用该作用。Circuit decision which had upheld FERC's decision not to use the social cost of carbon in other projects, which also did not discuss the regulation.[2]
Accordingly, on remand and in the future, FERC and other agencies will have to more directly evaluate the tool and the rigor of the science behind it. Proponents will argue that the social cost of carbon is the kind of "generally accepted" theoretical approach § 1502.21 requires be incorporated into NEPA: The IWG's SCC framework is at this point over a decade old, and was designed from the start to reflect scientific consensus, incorporating the three most widely cited climate economic impact models, each of which have been extensively peer reviewed. The National Academy of Sciences has recognized the tool and provided recommendations on how to strengthen it, which the Biden Administration is actively working to incorporate through an inclusive public process with stakeholders and experts to ensure that projections are based on the "best available science."
The decision is the latest in a series of cases assessing the adequacy of FERC's NEPA analysis. The D.C.电路要求FERC更充分地考虑核准项目气候后果, 特别是s/www.sierraclub.org/files/blog/FINAL%20ORDER%202020-22-17.pdf'Circuit made clear that it was stopping short of forcing the social cost of carbon on FERC. Indeed, the Vecinos court remanded the approval without vacating it, concluding it was "reasonably likely" that the Commission would be able to reach the same result even after discussing § 1502.21, and that vacatur could "needlessly disrupt completion of the projects." Construction of the facilities continues after the ruling.
Even if Vecinos does not result in broader adoption of the social cost of carbon in project approval, changes from the executive and legislative branches may, for FERC as well as other agencies. By the end of this month, the interagency working group will submit recommendations on "areas of decision-making, budgeting, and procurement" across the federal government where the SCC should be applied, which could include project approval and NEPA analysis. Regarding FERC specifically, President Biden will soon be expected to announce his replacement for Commissioner Neil Chatterjee, potentially shifting the Commission to a Democratic majority and providing additional support to Chairman Glick, who has vocally supported having the Commission consider the significance of greenhouse gas emissions and the social cost of carbon in NEPA analyses.
[1] Vecinos separately held that the Commission's environmental justice analysis was arbitrarily limited, as it did not discuss potential disproportionate effects more than two miles away from the project site.
[2] See EarthReports, Inc.公元前FERC ,828F3d949956Cir市2016年)appalachian声音vFERC 号17-12712019WL847199Cir市二月192019SierraClub公元前FERC ,672FedAppx3839Cir市2016年)
DOE's new rule is likely to be controversial. Environmental groups may challenge it in court. In addition, the incoming Biden administration could seek to undo the rule through either repeal under the Congressional Review Act, if the Democrats have a majority in the Senate, or through a new rulemaking proceeding at DOE.
This change in DOE policy will be of interest to proposed LNG export projects that seek authorizations or amendments to authorizations from DOE and their counterparties in associated gas sales contracts.
Background
Under section 3 of the Natural Gas Act (NGA), DOE authorizes exports of natural gas and LNG unless found to not be consistent with the public interest. Exports to countries with which the U.S.NGA认为自由贸易协定符合公众利益并必须获授权“不修改或延迟 ” 。 但是,对于没有FTA的国家(非FTA国家)出口,DOE进行公众利益审查,包括NEPA评估Accordingly, the new rule affects only authorizations to export LNG to non-FTA countries.
As reported on this blog, DOE issued a Notice of Proposed Rulemaking (NOPR) in May 2020 proposing the categorical exclusion from NEPA review of LNG exports by marine vessel. DOE received 16 comment letters on its proposal, some in opposition. The final rule adopts the proposal without change.
The final rule
In the notice of the final rule, DOE says that its review of applications for LNG export authorizations is limited to "consideration of effects that are reasonably foreseeable and have a sufficiently close causal connection to the granting of the export authorization." [1] Thus, according to DOE, the environmental impacts of its export authority under the NGA are limited to those associated with activities occurring at the point of delivery to the export vessel (i.e., when the LNG is delivered to the flange of the LNG export vessel) and extending to the territorial waters of the receiving country.DOE stated that the new rule is consistent with the court precedent that an agency has no obligation to ‘‘gather or consider environmental information if it has no statutory authority to act on that information.''[2]
In response to comments that DOE should consider upstream and downstream impacts of exports, DOE says upstream production impacts are not reasonably foreseeable and downstream emissions at the point of consumption are "too attenuated to be reasonably foreseeable and do not have a reasonably close causal relationship to the granting of an export authorization."
Based on prior NEPA reviews and technical reports, DOE finds the transport of natural gas by marine vessel normally does not pose the potential for significant environmental impacts.[3] Accordingly, such transportation is within the scope of a categorical exclusion from NEPA review in its regulations.
While the rule appears to effectively eliminate NEPA review of LNG exports, DOE says, in response to comments, that when reviewing an export application it will consider whether there are extraordinary circumstances that require an Environmental Assessment or Environmental Impact Statement.
The new rule becomes effective January 4, 2021.
[1] Citing Dep't of Transp.vunem/Pub公有性 541U.S.752(2004)SierraClub vFed能源规管通信 827F.3d36Cir市2016年)
类似拟议规则,最后规则为完成环境影响说明设定2年和完成环境评估设定1年的推定时限,除非牵头机构高级官员书面核准更长时间并设定新时限。
EIS目前限页或小于150页,EA最多75页(不包括附录)“除非高级代理官书面批准EIS或EA可能超出推定页限并设定新页限关于异常范围或复杂度提案,推定页数限制为300.
Final规则还允许申请方和承包商在机构监督下扩大EIS或EAs编译作用万博体育app手机登录The Final Rule includes regulations that require the decision-making or lead agency to provide guidance, independently evaluate the EIS or EA, and take ultimate responsibility for the accuracy, scope, and content of the assessment.
III. Changes to the Definition and Applicability of Categorical Exclusions
Prior NEPA regulations defined "categorical exclusion" (CE) as a "category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations … and for which, therefore, neither an environmental assessment nor an environmental impact statement is required." 40 C.F.R.§1508.4(旧规程)。终极规则修改定义,删除术语“单数或累积数”。§ 1508.1(d).
Final规则进一步补充称,如果aId 此前,代理机构会评价项目“异常环境”,这可能使通常排除项目接受审查,因为对环境产生重大不利影响终极规则维护此过程,但修改后规定,如果“异常情况存在,机构可绝对排除提议的行动,如果机构确定有情况可减少撞击或足以避免重大效果的其他条件。” 40 C.F.R.§1501.4(b)(1).
Simliarly,Final规则描述三级审查(EA、EIS和CEs)并增加一节题为“确定NEPA审查的适当级别”,规定各机构应以何种方式确定NEPA项目需要哪一级审查C.F.R.§1501.3.
最后规则还修改单列定义“主要联邦行动”,明确排除“治外活动或决定”、“非全权活动”、“非联邦项目最小联邦供资或控制,以及贷款、贷款担保或其他形式的金融援助等,如果联邦机构对援助结果不行使足够的控制和责任。Id §1508.1(q).下一步,Final规则不“包括机构因有限法定权限而无能力预防或不论拟议行动而发生”。 Id .
此外,终极规则明确指出,这是一项须接受国会根据国会审查法审查的“主要规则”,并因此CEQ将向国会和政府问责局提交包括最后规则在内的报告供审查规定最终规则自9月14日2020生效,如果国会审查改变生效日期,CEQ将在联邦注册局发布文件以确定实际生效日期或终止规则鉴于这种可能性和可能提出法律挑战的可能性,对受NEPA项目感兴趣的当事方希望监测这些动态公司执行受NEP约束项目时,可能欢迎简化和加速NEP进程的变化,但它们应认真考虑如何在不确定期间最优保护期望结果。
Covington和Burling与Good公司、双党政策中心及国家制造商协会联合主办活动周二集专家讨论基础设施审批过程,并讨论如何改善或改革当前系统以提高效率半天论坛展示新视角并对话为何需要大修推动经济并改进环境结果可并发,但当前架构和监管屏障可防止范式变换论坛还包括介绍其他国家的最佳做法和合并决策标志和及早审议环境影响所创造的机会PhilipHoward,Covington和Burling公共良好和伙伴周二召集活动,确认“没有人设计我们现在拥有的系统-它刚刚壮大 ” 。 论坛的目标是探索大胆建议简化、加速和改善基础设施审批过程美国想从新基础建设项目中获取所有利益 — — 增强竞争力、数以百万计的工作和绿化环境足迹。
运输副秘书Victor Mendez是基调演讲人,他谈到交通部新调查DOT“Beond交通”,计算当前基础建设和运输需求并预测未来趋势最新调查《超出交通量:趋势与选择2045年》预测2045年人口增长7 000万,全国人口变化Mendez承认,我们目前的基础设施无法维系增长,他说,我们的基础设施本身不会改善,他认为我们可以改善当前系统以提高效率,从国会的长期地面运输授权开始。Mendez相信基础设施利害相关方和美国公众应开始考虑机制以保持创新超出立法行动范围。基础设施审批系统与其他国家相对照 。Nick Malyshev是OECD监管政策司司长,观察美国拥有强大的系统制定法律法规,我们可以做更好的工作评价现有法规。他和其他小组成员Parsons Brinckerhoff和Shawn DensstettOsler,Hoskin & Harcourt(Canada)讨论了加拿大、澳大利亚和许多欧盟国家如何在监管框架和审批流程方面比美国先光年。Denstedt discussed how Canada in particular revamped its environmental review process in 2012 to make it more consistent and timely and the outcomes more predictable. All of the panelists remarked on how the convoluted approval process, not necessarily the substance of projects, is dragging down the infrastructure system here in the United States, and how there must be better coordination between federal and state entities to reduce overlap and inconsistencies.
A second panel discussed the environmental review process and the devolution of the National Environmental Policy Act (NEPA). While the original intent of the act was to balance interests and understand the consequences of different choices in infrastructure projects, panelists remarked on how the process has become cumbersome, with overlapping oversight authority and review processes that have resulted in delays, escalation of costs, and an overall burden on the American economy. Attendees were reminded that the law was only 7 pages when enacted in 1970!several panelists commented that it is time to go back to the law's original intent. There was also a consensus among panelists that there needs to be more of an evidence-based discussion around environmental review. There is little analytical data on NEPA policy, but a better model could exist that is based on metrics and outcomes that can better inform decisions. Covington & Burling's Don Elliott discussed the judicial review process under NEPA, which he said has become a process for stopping projects, rather than facilitating how a project gets done. One fix he noted was for preliminary injunctions to be done away with and for CEQ to issue guidelines for judicial standing.
The final panel discussed the challenges and bright spots in the current permitting process. Joann Papageorgis of the Port Authority of New York and New Jersey discussed the Bayonne Bridge navigational clearance project as an example of how complicated the review process can be and how inefficiencies can be solved. This project in particular required approximately 50 permits from 20 different agencies. They found the complicated regulatory review contained multiple duplicative regulatory processes and conflicting federal requirements. She outlined several strategies and recommendations based on the experience of this project, many of which were echoed by the other panelists, including how important it is to enforce early coordination and synchronization between agencies, and to work on a schedule. Shoshanna Lew from DOT agreed there is no reason certain processes cannot happen simultaneously, and multiple agencies could participate as part of the same review, rather than duplicating it multiple times.
There was broad consensus across these three panels and participants that all parties should work toward permanent solutions that increase efficiencies, improve outcomes, and balance interests to advance our infrastructure systems and meet the current and future demands of our country.
The White House's Council on Environmental Quality (CEQ) recently issued updated draft guidance on how federal agencies should consider greenhouse gas (GHG) emissions and the attendant impacts on climate change when conducting environmental analysis under the National Environmental Policy Act (NEPA). CEQ simultaneously released related, final guidance on conducting programmatic NEPA reviews. While these actions are designed to improve the consistency and predictability of permitting approaches and thereby facilitate NEPA reviews, they do increase the focus on GHGs for federal permitting considerations and may make it easier for environmental and community groups to challenge project approvals on these grounds. They may also provoke a careful look from Congress on the basis for CEQ's focus on GHGs.
The proposed guidance, an update of CEQ's earlier February 2010 draft guidance, includes significant provisions that will likely increase the scope and complexity of many NEPA analyses.万博体育app手机登录CEQ seeks to clarify how agencies should assess and describe the effects of greenhouse gases as well as the impact of climate change on proposed federal actions. Some of the key provisions are as follows:
- The draft guidance would more clearly require federal agencies to evaluate GHG impacts by federal actions, including federal project approvals or federal funding decisions. The draft treats GHGs in a similar manner to other pollutants caused by federal activities.
- Unlike the 2010 version, the current draft guidance does not exclude federal land and resource management actions. As a result, the guidance would apply to many actions previously thought to be excluded, including natural resource activities on federal and tribal land.
- Agencies are encouraged to provide quantitative estimates of GHG emissions and sequestration, and are discouraged from using simple recitations that the emissions from a particular action would represent only a small fraction of global emissions. However, in following the rule of reason and concept of proportionality, quantitative analysis of emissions is generally not required if expected annual emissions are below 25,000 tons of CO2e, or some other threshold that an agency selects and justifies.
- Consideration should be given to mitigation measures and alternatives to reduce the level of potential GHG emissions. Some mitigation methods may include enhanced energy efficiency, carbon sequestration, and using renewable energy.
- Agencies are also asked to consider the effect of a changing environment on proposed projects. For example, an infrastructure project on a coast will want to account for the environmental consequences of rebuilding if raised sea levels or storms reduce the projected life of the infrastructure.
Some provisions may be prove particularly difficult to comply with and will likely be a significant source of continuing challenge and litigation. For example, the draft guidance calls on agencies to include in NEPA analyses "emissions from activities that have a reasonably close causal relationship to the Federal action," which can include both upstream emissions (those that may occur as a predicate for agency action) and downstream emissions (those that may occur as a consequence of the agency action).万博体育app手机登录项目申请者想仔细考虑其分析范围,以便通过满足指导方法草案最大限度地降低不良诉讼结果的可能性。
发布最终程序指南自2014年12月23日起生效,指导机构决策人和公众遵守NEPA并表示CEQ正在努力使NEPA尽可能可行。为此,最后指南鼓励机构酌情使用编程分层NEPA审查。指导草案60天公开评论
Natural gas exports to non-FTA countries also require review under NEPA, as do LNG terminals located onshore or in state waters, which require FERC authorization. Thus, LNG applications to both DOE and FERC must satisfy NEPA requirements, which typically result in an Environmental Impact Statement (EIS) or Environmental Assessment (EA). Accordingly, DOE depends on FERC's NEPA review. FERC serves as the lead agency for preparing environmental review documents and DOE serves as a cooperating agency.[1]
DOE's current procedure is to consider all public interest factors other than environmental and to issue authorizations for non-FTA exports conditioned on the applicant completing the NEPA review. For non-FTA export applications made after December 5, 2012, under existing procedures DOE prioritizes its order of review based on the order in which they were received. According to DOE, one potential consequence of this current prioritization is that LNG terminal projects that satisfactorily complete FERC's lengthy NEPA review, often taking two years or more, and are ready to proceed may need to wait for applicants ahead of them in the DOE authorization queue to complete the FERC review.
In the past three years, DOE has issued seven conditional authorizations and currently is reviewing 25 requests for non-FTA exports. FERC has approved one LNG export terminal and has received proposals for an additional fourteen projects.
Under the proposed procedures, DOE will suspend its practice of issuing conditional authorizations and no longer proceed according to the current priority scheme. Instead, DOE will act on applications in the order in which they complete the NEPA review process and are ready for final action.[2] DOE says the new procedures will:
- Ensure that applications that are otherwise ready to proceed will not be held back by their position in the current priority order.
- Inform decision making with better and more complete information: (1) economic issues will be considered with more current data!2)授权累积市场效果将更易为人知,因为只有已完成NEPA评审并更有可能继续处理的申请才比那些未考虑处理的申请!3 可按单序考虑所有公共利益因素 。
- /ul/p>对拟议程序的评论必须在2014年7月24日前提交DEEIA更新
LNG输出研究 之后DOE将签约分析LNG扩大出口范围的经济和其他影响DOE表示在研究期间将继续按应用操作 。