Trump infrastructure proposal impacts ‘virtually every’ federal decision on environment: DOI Secretary

Source: By Catherine Morehouse, Utility Dive • Posted: Sunday, January 12, 2020

Trump’s Thursday announcement focused largely on road and highway impacts, but industry groups and environmentalists note the implications for the energy sector are significant.

Utilities across the country “are investing more than $110 billion annually in smarter energy infrastructure,” Quin Shea, Edison Electric Institute Vice President, Environment, Natural Resources, and Occupational Safety & Healthsaid in an emailed statement. “It is critical that energy infrastructure siting and permitting processes be streamlined to ensure that we are able to deliver the clean energy future that our customers want and expect.”

The Trump administration first directed the White House Council on Environmental Quality (CEQ) to begin overhauling NEPA in February 2018, under a wide-ranging infrastructure plan.

“This is a really, really big proposal” Bernhardt said. It “affects virtually every significant decision made by the federal government that affects the environment.”

Trump said the change is part of his “campaign to slash job-killing regulations,” while maintaining protections over the environment.

Climate change “is a very serious problem,” he said. “I want clean air, I want clean water … But I don’t want to close up our industry because someone said you have to go with wind, or someone said you have to go with something that doesn’t have the capacity to do what we have to do.”

Wind, gas and coal mining industries all support the White House’s proposed changes. Approvals for pipeline and offshore wind permitting are two critical areas impacted by these changes that have seen significant delays under current NEPA rules.

Environmental reviews ordered under NEPA have delayed high-impact projects such as the Keystone XL Pipeline. And in August, the Bureau of Ocean Energy Management delayed Vineyard Wind’s permitting analysis, which “will likely upend the supply chain, financing and construction timeline for the project,” according to the pro-NEPA revision coalition Unlock American Investment.

“While America’s wind energy industry supports the fundamental goals of NEPA to appropriately consider potential environmental and climate impacts, the NEPA process has not been revised in decades,” said Amy Farrell​, Senior Vice President of Government and Public Affairs for the American Wind Energy Association. “As a result, infrastructure projects, including land-based and offshore wind energy and transmission development, have encountered unreasonable and unnecessary costs and long project delays.”

Natural gas groups noted the proposed changes are consistent with what they asked for in terms of greenhouse gas regulations and an overall streamlined process.

“This proposed rule will streamline, clarify and modernize the permitting and environmental review process and will help facilitate the environmentally-responsible construction of natural gas infrastructure,” the American Gas Association said in a statement.

Nuclear and solar groups did not immediately have a reaction to how the proposed changes may impact those sectors.

But environmental advocates fear the proposed changes will lead to insufficient environmental impact challenges, undo years of progress on climate change, and at the end of the day only lengthen the permitting process through court battles.

“Everyone involved in energy infrastructure projects, particularly gas pipelines, [has] been trying to needle out how we handle this ‘X factor’ that we all know exists in climate change,” Natural Resources Defense Council Attorney at the Sustainable Federal Energy Regulatory Commission project Gillian Giannetti told Utility Dive. “The courts had been working to put meat on the bones so FERC and everyone involved can understand what needs to be done. And these proposed regulations are clearly an attempt to upend all of that.”

Of top concern is the elimination of words such as “direct,” “indirect” and “cumulative” from regulatory language, all words that have “been in NEPA regulations since 1978 and do exactly what regulations are supposed to do — provide color, context and help to inform regulators how to implement statutes that are typically much more generalized in their description,” said Giannetti.

Eliminating those words will allow agencies conducting environmental impact reviews to ignore the long-term climate impacts of pipelines and other major infrastructure projects. Those changes “would allow [an] agency to really zero in on this tunnel vision where they say, ‘Well, you know, we have no authority to prevent the cataclysmic effects of climate change,'” Harvard Energy and Environmental Law Fellow Caitlin McCoy told Utility Dive.

There is also increased ambiguity of what exactly constitutes a federal review, noted Giannetti and McCoy. The proposal raises the question of whether a monetary threshold should be set for what constitutes federal involvement and therefore what triggers NEPA to apply.

“A lot is up in the air,” said McCoy, which is likely to spur court battles. However, under the current proposal, any lawsuits or challenges raised against a permit, would not be able to reach a court until after an agency actually issues a permit or a decision is finalized by a regulator.

“That’s a big change because it means that projects are going to be allowed to get further along,” said McCoy. “They’re going to be more developed and fully ready to break ground … [before] challengers will be allowed to bring their challenges.

Dive Brief:

  • A new infrastructure plan released by the Trump administration aims to reduce federal project reviews to two years by reducing the number of evaluations and setting new guidelines for state reviews.
  • The plan, released Monday, would see the White House designate a lead agency for infrastructure project reviews, set a 21-month timeline for evaluations and institute a 150-day statute of limitations on permitting decisions. Currently, such reviews typically take between three and five years, which can stretch into decades.
  • The plan would also end the Environmental Protection Agency’s authority to review environmental reviews from other agencies under the Clean Air Act and clarify deadlines for states to challenge infrastructure projects under the Clean Water Act.

Dive Insight:

The 53-page infrastructure plan released by the White House on Monday is its most detailed proposal for infrastructure yet.

The plan, dubbed a “legislative outline” contains a litany of provisions that would have to be enacted by Congress. Like the president’s budget, also released Monday, the plan is likely to serve as a starting point for further negotiation in the House and Senate, and is unlikely to be adopted in its original form.

The plan would direct the White House Council on Environmental Quality (CEQ) to rewrite its interpretation of the National Environmental Policy Act (NEPA) for the first time since 1978, seeking to eliminate what the White House calls “duplicative” reviews by designating a single agency for each project

“Currently, federal NEPA reviews are conducted by the federal agencies with jurisdiction over the same project. Agencies are encouraged, but not required, to prepare joint analyses,” the plan reads. “Requiring joint analyses can reduce the potential for delay caused by separate analyses.”

The plan would end the EPA’s obligation under the Section 309 of the Clean Air Act to publish comments on most environmental impact statements (EISs) prepared by other agencies. The White House argues these reviews add another step to the approval process without environmental benefits.

EPA would still have the authority to review EISs “on matters within EPA’s jurisdiction or EPA’s responsibilities.”

“This review is no longer necessary, given that federal agencies have gained significant NEPA experience since this law was enacted and because EPA has other authority to review and comment on matters within its jurisdiction,” the plan reads.

Trump’s infrastructure proposal would also reach to the states, seeking to clarify deadlines for states to complete water quality evaluations for projects like interstate pipelines under Section 401 of the Clean Water Act.

Currently, states have a one-year deadline to complete the review, but the process can become longer if states ask for refiling or must wait for action from federal agencies on project permits.

The issue has become pronounced in the Northeast in recent years. Last September, the Federal Energy Regulatory Commission overruled a New York decision to deny water quality permits to an interstate pipeline, saying the state regulators waited too long to issue their ruling under Section 401.

“Amending the Clean Water Act to change the time period for issuance of a State 401 Certification by addressing the time periods for making a completeness determination and the time for a State decision would reduce this delay,” the plan argues.

The infrastructure proposal would also seek to cut down on litigation over environmental permitting, setting a new statute of limitations on federal decisions. Today, most NEPA permits have a six-year statute, meaning that projects can be delayed for more than half a decade after receiving final approval, E&E News notes.

“Establishing a uniform statute of limitations of 150 days for decisions and permits on infrastructure projects would reduce uncertainty and prevent substantial delays in project delivery, while still affording affected parties an adequate opportunity to initiate legal challenges,” the plan argues.