Chapter 14 NEPA Review of Linear Infrastructure Projects

• Jurisdiction: United States

Chapter 14 NEPA Review of Linear Infrastructure Projects
Jason Hill Hunton Andrews Kurth Houston, TX
Julia Casciotti Hunton Andrews Kurth Washington, D.C.

JASON HILL is a Counsel at Hunton Andrews Kurth focusing upon energy and natural resource issues with a particular emphasis on counseling clients through the NEPA process and litigating NEPA cases. Immediately prior to joining the firm, Jason served as Chief Administrative Judge of the Interior Board of Land appeals, after serving in roles as Deputy Solicitor for Energy and Mineral Resources, and Senior Counsel to the Director of the Bureau of Land Management. Before joining Interior, Jason spent a decade as a trial attorney with the Natural Resources Section of the Department of Justice's Environment and Natural Resources Division where he successfully litigated numerous NEPA challenges to actions by various federal agencies.

Overview

The National Environmental Policy Act (NEPA) requires federal agencies to review the environmental impacts and alternatives of major federal actions prior to making decisions. For large infrastructure projects cutting across long swaths of the landscape and drawing participation from multiple agencies, the NEPA review process is inherently complicated, both procedurally in how multiple agencies work together to accomplish review, and substantively in how various elements of the review are weighed. This paper will focus specifically on "linear" infrastructure projects which present unique complexities for NEPA review. Linear projects are those characterized by their direct and undeviating form, including highways, transmission lines, and pipelines. They can include projects entirely on-shore, and those connecting off-shore energy sources back to land. NEPA review of linear projects may entail heightened jurisdictional issues between states and the federal government, and between agencies who have different jurisdictional responsibilities over the lands that the projects traverse. Their review may also entail an increased scrutiny of "segmentation" claims, where an agency reviews one portion of a larger project in isolation.

This paper will describe and analyze three key issues related to NEPA review of linear infrastructure projects. First (I) it will discuss some evolving issues that the Federal Energy Regulatory Commission (FERC) is grappling with, specifically how it analyzes greenhouse gas (GHG) emissions and environmental justice impacts as part of the NEPA review process for pipeline projects. Second, (II) it will describe the multi-agency NEPA process for linear projects and provide examples of cases considering conflicts between agencies conducting review. Lastly, (III) it will define the problem of improper segmentation for linear infrastructure projects, and examine some cases where linear projects were found to be improperly segmented.

I. FERC Review of Pipelines under NEPA

FERC faces a host of challenges surrounding NEPA review of linear pipelines, particularly as expectations around review of certain cross-cutting issues evolve. This section will explore FERC's grappling with (a) identification and measurement of GHG emissions under NEPA in light of new guidance, and (b) the scope of environmental justice review under NEPA.

(a) Quantification of GHG Emissions

In January, the White House Council on Environmental Quality (CEQ) issued new interim guidance on review of GHG emissions under NEPA.¹ Notably, the guidance recommends that agencies quantify a project's reasonably foreseeable direct and indirect GHG emissions, including both upstream and downstream emissions. This includes annual emissions and net emissions over the entire lifetime of the

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project, and requires that emissions be quantified for both the proposed action and the alternatives. The guidance raises difficult questions for FERC: what are "reasonably foreseeable" upstream and downstream emissions? How does the agency identify direct and indirect emissions for pipeline projects? How should the agency incorporate direct versus indirect emissions into the public interest determination required under the Natural Gas Act? To what, if any, extent do CEQ regulations or guidelines bind FERC?

For energy projects, courts have struggled with quantifying reasonably foreseeable upstream indirect emissions because it is unpredictable how many additional sources of fossil fuels will be added to utilize that pipeline, compressor station, or facility. Yet, courts have also indicated that FERC has an obligation to at least seek out information on those sources. While the D.C. Circuit in Food and Water Watch lacked jurisdiction to decide issues around quantification of upstream emissions, it still expressed being "troubled" by the Commission's failure to seek out relevant information to evaluate the environmental impacts. In that situation, FERC had explained that because specific sources had not been identified with precision, that environmental effects from...