A Federal Energy Agency Could Make A Change That Thwarts Climate Offenders

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Climate and Energy

by Adam Carlesco

For the first time in over two decades, the Federal Energy Regulatory Commission (FERC) issued two new proposed permitting policies. The policies will inform how FERC considers whether an interstate gas infrastructure project is in the public interest before permitting. The first policy revises its gas certification policy, which has been unchanged since 1998. The second proposes an interim policy concerning how FERC will analyze the climate impacts of proposed infrastructure projects. For years, Food & Water Watch has been pushing FERC to improve its certification policy through litigation and legal comments. It appears FERC may be poised to finally consider the true climate and community impacts of fossil fuel gas projects.

These policies indicate that FERC and its new Commissioners may begin taking their duties under the Natural Gas Act and the National Environmental Policy Act (NEPA) more seriously. So does FERC’s Strategic Plan for 2022-2026. The Natural Gas Act requires projects to be in the public interest. NEPA requires agencies to evaluate the environmental impacts of proposed federal actions like pipeline approvals. But it stands to be seen how these policies will be applied in practice. Under pressure from fossil fuel interests, will FERC commissioners stand strong against permits for gas projects that will cause environmental harm? 

FERC Has A History Of Rubber-Stamping New Gas Projects

During the fracking boom of the early 21st century, FERC’s flexibility was a convenience for the gas pipeline industry’s vast expansion plans. In that time, FERC granted 1,021 approvals over twenty years and rejected only six. Simultaneously, FERC glossed over the harmful effects of gas infrastructure, including greenhouse gas emissions, downwind air pollution, and threats to public safety. It also completely ignored the big picture. Pipelines need expanded fracking operations to feed them, meaning more fossil fuel extraction over the decades-long lifetime of the infrastructure. However, there has also been consistent pressure from the public, court decisions, and a change in administration. Because of that, FERC has finally re-evaluated how it will determine if a project is in the public interest. 

FERC’s New Certification and Greenhouse Gas Policies

In issuing its new gas certification policy, FERC strengthens its review of new and modified gas infrastructure in several ways. These include: 

  • Requiring more information from project applicants on foreseeable but indirect impacts (e.g., fracking) and greenhouse gas (GHG) emissions from the eventual burning of the piped gas; 
  • Greater evidence of “need” for the pipeline that cannot otherwise be addressed, 
  • And collection of information on the cumulative harms to nearby communities. 

FERC has also for the first time proposed a separate policy on the consideration of GHGs. The draft features an emissions threshold that would categorize most new or modified gas infrastructure as having “significant” climate impact. This is an important change because a significance finding means FERC must do a more rigorous environmental review under NEPA. However, this policy is still just a proposal and the Commission is seeking input from the public until April 25th.

Pressure From Watchdog Groups And Communities Is Crucial For Enforcement

Food & Water Watch’s work in the courts is keeping pressure on FERC to adopt strong policies. In March, the federal D.C. Circuit Court of Appeals in Food & Water Watch v. FERC issued an important decision. It held that the Commission could no longer ignore the emissions from gas delivered to local distribution companies. The court found FERC must review the indirect, but foreseeable, greenhouse gas emissions from even a single compressor station replacement. 

This is only the beginning, however, as a policy is only as strong as it is enacted and enforced. At a time when fossil fuel interests are pushing to build infrastructure to export fracked gas around the world, FERC Chairman Glick, recently stated

“FERC has never rejected an LNG project based on climate change [concerns]…” 

He went on to say that he doesn’t “think there’s a linkage between climate change and limitations on exports.”  Food & Water Watch will continue to pressure FERC to take into account the full climate impacts of fossil fuel projects. We’ll hold the agency accountable if it continues rubber-stamping gas infrastructure development. 

You Can Do Something Easy Right Now To Make This Change Official

FERC Commissioners are under tremendous pressure from the gas industry and the politicians funded by them. That’s why it’s so important FERC commissioners hear from you! 

Tell FERC that climate change is a reasonably foreseeable impact of gas infrastructure approval, and that it must consider fracking’s impacts when approving pipelines. Most importantly, tell the commissioners that FERC must deny new gas infrastructure applications as contrary to the public interest. The comment period on FERC’s draft gas certification and  GHG policies is open until April 25th – weigh in now!

Urge FERC to finalize these new policies.* It just takes a moment!

*Please reference Docket Nos. PL18-1-000 and PL21-3-000 in your comment to FERC.

Biden Administration Dodges Any Real Reform of Trump’s NEPA Rules

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Climate and Energy

by Adam Carlesco

Last year Trump’s administration finalized drastic changes to how federal agencies perform environmental review under the National Environmental Policy Act (NEPA). It resulted in the gutting of public engagement requirements, expansion of the exemption list, and narrowed the scope of review. As part of a coalition, Food & Water Watch sued the administration for violating clear statutory requirements. Now the Biden administration, rather than repeal the 2020 rules, has decided to piecemeal tweak the Trump administration’s handiwork. The White House Council on Environmental Quality (CEQ) oversees how all federal agencies implement the environmental review requirements of NEPA. They recently issued a “Phase 1” rulemaking to address issues with the 2020 rulemaking. Rather than return to rules that guided federal agencies for over forty years, the Biden CEQ has largely accepted the 2020 alterations. They are changing only three of the most grievous mistakes.

The Changes Proposed By CEQ Are Needed, But Aren’t Enough

This draft Phase 1 rulemaking proposes reinstating the definition of “effects” to include indirect and cumulative impact. This will require agencies to review climate impacts of permitting decisions. This proposal would also make CEQ’s rules the regulatory floor for agencies – not a ceiling like 2020’s rules. That means individual agencies can make their own agency-specific NEPA review requirements that are more stringent than CEQ’s. Additionally, the proposed rule looks to expand alternative analyses of a proposed project. The Trump administration required that all determinations of need and consideration of alternatives “meet the goals of the applicant.” This let industry developers narrowly define the scope of projects so that few or no alternatives met their stated goals.

While the amendments made within this proposed rule are necessary, they largely neglect the voluminous deficiencies of the 2020 rules. A complete repeal of 2020’s rules and reinstatement of those that have governed NEPA for decades would be most appropriate.

The White House Council on Environmental Quality Should Entirely Repeal the 2020 NEPA Rules

The 2020 changes went further than removing indirect and cumulative effects consideration and instituting a ceiling on agency NEPA implementation: 

  • They restricted public engagement; 
  • They let project developers (like pipeline companies) set the government’s scope of review;
  • And they even allowed developers to start some construction before the review begins. 

The 2020 rules also expressly exempted federal loan guarantees to would-be factory farm operators and vastly expanded categorical exclusions. That allows potentially harmful projects to entirely evade environmental review. The 2020 rules moved the goal posts for requiring an in-depth environmental review by redefining the term “major federal action.” It also allowed more projects to evade such in-depth review by expanding mitigated findings of no significant impact. These are just the most glaring issues – many more can be found within the 2020 rules. 

Additionally, the 2020 rules introduced subtle language changes that greatly alter how agencies proceed with environmental review of proposed projects. These shifts are almost entirely to the detriment of the public and environment. The sheer volume of changes in the 2020 regulations underpin numerous threats to public health. A piecemeal approach to amending Trump’s regulatory framework is not enough to adequately address them.

Tell The Biden Administration To Repeal Trump’s NEPA Rules, Not Tweak Them

The Trump administration’s changes to how the federal government reviews the environmental impacts of projects are pervasive and detrimental. We cannot simply amend them. The 2020 NEPA rules are beyond reform and require total repeal before making any future changes to the NEPA process. Through omission, CEQ’s tweaks to the 2020 rules would cement many of their serious deficiencies, including Trump’s expanded exclusions. The good news is at  this time it’s only a proposal. CEQ requests all interested members of the public provide them with comments by November 22, 2021. Now is our opportunity to influence how the final rule takes form.

Ask CEQ to completely repeal the 2020 rules Trump instituted! Our future depends on it.

EPA Should Rewrite Trump’s Awful Rule And Help States Protect Their Water

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Clean Water

by Adam Carlesco

In the fight to protect our waters from reckless permitting by the federal government, the drafters of the Clean Water Act (CWA) ensured that state governments had the authority to deny federal permits for infrastructure projects that violate state laws. This authority comes from Section 401 of the CWA and has allowed states to block a number of oil and gas pipelines, like the Northeast Supply Enhancement project, due to the harm they’d cause to state water. This authority is a vital tool in stopping the expansion of fossil fuel infrastructure in states with strong climate goals and the preservation of this power is necessary to avert the worst effects of climate change.

Trump’s Administration Wrote A Bad Clean Water Act Rule, And Biden’s EPA Must Fix It

For the past four decades, the Environmental Protection Agency (EPA) has understood that states have broad discretion in how they review whether a project will significantly impact a waterbody within its borders. But in July 2020 the Trump administration finalized a major regulatory change that hastened state and tribal authorities’ timelines for reviewing such projects. Making things worse, it also severely limited the factors that state agencies could consider when deciding whether to certify a project. It’s clear that this rule was enacted to stop states like New York from protecting water people depend on for life. If this rule isn’t rewritten, it will lead to more oil and gas pipelines being approved without critical state review.

Understanding this, the Biden Administration has directed EPA to review the 2020 CWA §401 Certification Rule for legal deficiencies and amend the rule as needed so it aligns with the principles of state sovereignty and protects water bodies and the climate. Currently, EPA is considering how it can improve the state certification process and will likely be proposing a new rule in late 2021 or early 2022. To guide that proposal, Food & Water Watch has submitted comments advising the agency on how best to address the dual challenge of climate change and water contamination.

The 2020 Trump Rule Wholly Undermines The Spirit And Intent Of The Clean Water Act

Under the 2020 Trump Rule, EPA shortened timelines for states to review a project’s compliance with state law, requiring the timeframe for review to begin immediately when a developer submits an application – even if lacking vital information. Going forward, the EPA must amend this so the clock starts only once a state certifying authority deems an application administratively complete. Also, EPA must allow applicants to voluntarily withdraw their request and resubmit it at a later date when there is inadequate information for a state authority to make an informed final decision. Without that flexibility, this practice will result in more states denying certification to avoid inadvertently waiving their review authority. It is also incredibly important for states to be able to delay certification until the completion of an environmental review as required by the National Environmental Policy Act.

The 2020 Rule has also severely narrowed the scope of what review criteria a state can consider when determining whether a project complies with state law. EPA must reiterate that state certification must consider the impacts of any “discharge” as the Clean Water Act requires, not just a “discharge of pollutants” which is a wholly different legal term not present in Section 401 of the statute. Despite the Trump administration’s insistence that Section 401 applies only to “point sources of pollution” (e.g., wastewater coming directly out of a pipe into a river), in actuality, the CWA requires a review of any activity that may result in a discharge, including from non-point sources (e.g., pesticide run-off from golf courses). EPA must correct this gross misreading of the statute if states are to meaningfully assess the full scope of a project’s potential harm.

The damage caused by such shortened timelines and a narrowed scope of review is heightened by the 2020 Rule’s requirements that force states to waive their certification authority if a final decision is not made within EPA’s definition of a “reasonable” period of time or if it contains conditions that EPA objects to. It is of the utmost importance that EPA allows flexibility in its determination of a “reasonable time” for review that allows states to request additional data necessary for informed decision-making, without the looming threat of waiving state certifying authority. 

Moreover, EPA must respect state conditions when approving a project. Conditional approval of a project is meant to allow a project — that would otherwise not be certified — to move forward with strict conditions on approval. Stripping conditions from a conditional certification allows projects to proceed which, without those state-issued conditions, would be in violation of state law. As such, EPA must respect state sovereignty in determining when a project would violate state law without a condition and in determining what a reasonable amount of time is for reviewing a project within the statutory one-year limit.

EPA is anticipated to issue a notice of proposed rulemaking within a few months which the public can comment on. Food & Water Watch will be involved in submitting comments to EPA that call on a robust review process that protects our waters and will be sure to alert our supporters on how they can get involved when a proposed rule is announced.

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A Note About What’s Next To Protect Waterways:

Protecting the waterways of this nation must be an all-of-government effort. As such, it is important that EPA coordinate their regulatory plans with the U.S Army Corps of Engineers and the Federal Energy Regulatory Commission, as these agencies oversee dredging of waterways and gas pipeline permitting respectively.  Without a coordinated regulatory reform for all three agencies, priorities and legislative interpretations may become conflicted or incompatible, which would result in weakened waterbody protections and uncertainty in permitting for water-crossings of public utility lines, like much-needed water infrastructure.

The Interior Department Has a Legal Duty To Protect Our Public Lands

Categories

Climate and Energy

by Adam Carlesco, Food & Water Watch Staff Attorney

On the campaign trail, Joe Biden was adamant about stopping oil and gas drilling on public lands. Now it’s time to actually make it happen.

Biden Has Laid The Groundwork To End Leasing Of Public Lands For Fossil Fuel Extraction

In the first few days of his presidency, President Biden signed two executive orders which directed the Department of Interior to temporarily halt the leasing of public lands for fossil fuel extraction. During that time, the administration pledged that it would review how to reform its lands leasing policy to best fight climate change in a scientifically informed manner.

While that new policy is still months away, the pause was a significant start. While public lands have the potential to be a major global carbon sink, federal lands currently produce nearly a quarter of all U.S. greenhouse gas emissions due to decades of extensive land leasing to private oil, gas, and coal extraction corporations at bargain basement rates. As one of the largest single historical contributors to global greenhouse gas emissions, the Interior Department’s continued leasing of public lands for the extraction of fossil fuels would threaten climatological stability which, in turn, would drastically impact endangered plant and animal species, exacerbate wildfires, degrade air quality, and threaten many freshwater sources.

The Department Of Interior Can – and Should – Ban Fracking

The continued degradation of public lands and the global ecosphere is not simply unacceptable, it is contrary to the laws that govern the Department of Interior. As the largest landholder in the U.S. and the principal public land management agency, the department is tasked under the Federal Land Policy Management Act with ensuring that public lands preserve “multiple uses” which requires lands be used for “a combination of balanced and diverse resource uses that take into account the long-term needs of future generations.” It must also ensure that a sustained yield of “renewable resources” (i.e., freshwater, fish, wildlife, plants) be maintained in perpetuity. In order to see that public lands are managed accordingly, Interior is mandated to “take any action necessary to prevent unnecessary or undue degradation of the lands” it manages, and has great latitude in how it prevents such degradation.

The continued leasing of these lands for fossil fuels amidst a global climate emergency simply does not comport with Interior’s multiple use and sustained yield management requirements and, in fact, would lead to undue and unnecessary degradation of public lands.

In comments filed with Interior on April 15, 2021, Food & Water Watch laid out how the agency is legally required to cease its destructive leasing practices if it is to truly comply with its statutory requirements while living up to President Biden’s directive to “to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; … to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; [and] to reduce greenhouse gas emissions.”

Food & Water Watch further countered common industry talking points which seek simple “reform” of Interior’s leasing program, via the false solutions of carbon taxes and implementing carbon capture and sequestration systems which do not address the gravity of the climate crisis while still allowing continued extraction and combustion of polluting fossil fuels.

This comment period was an informal method to solicit input from the concerned public, but the Interior Department will need to engage in robust public outreach and environmental review of its leasing program as it goes forward with its next steps. As the department is legally required to pursue the least-harm alternative in land management, a thorough and candid environmental review of this program can only result in one outcome – a halt to all fossil fuel extraction on public lands. As this process unfolds, Food & Water Watch will continue its work of ensuring that ordinary people, when organizing together, have their voices heard by those in power. Together we can stop fossil fuel extraction on public lands and work towards a greener future.

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