CHAPTER 6 NEPA AND THE ENERGY POLICY ACT OF 2005
| Jurisdiction | United States |
(Feb 2006)
NEPA AND THE ENERGY POLICY ACT OF 2005
Patton Boggs LLP
Denver, Colorado
CAROLYN L. McINTOSH
Carolyn McIntosh is a Partner in the Denver office of the national law firm, Patton Boggs LLP. Her practice focuses on complex environmental compliance, environmental and natural resources litigation, and environmental due diligence and permitting. She has extensive experience handling compliance and permitting matters, including NEPA review, air, water, solid and hazardous waste permitting for hard rock mining operations, oil and gas production, DOE facilities, industrial operations, transportation companies, and municipal entities. Ms. McIntosh has litigated or worked on administrative aspects of more than thirty Superfund Sites, including cost recovery, natural resource damages, remedy challenge and remedy implementation matters. Ms. McIntosh's current client base is predominantly private companies engaged in natural resources development or the transportation sector. She has represented the City and County of Denver, and the States of Colorado and Montana in major Superfund litigation and environmental compliance matters, including Lowry Landfill, the Denver Radium Sites, Uravan, and the ARCO Sites. Ms. McIntosh has also provided environmental risk management and compliance training for more than a decade at DOE complex facilities, the Colorado School of Mines, the University of Denver, and to the general public.
Previously, Ms. McIntosh served as an assistant attorney general for the State of Colorado for Superfund and hazardous waste management and as a special assistant attorney general to the State of Montana, implementing its Superfund program. Ms. McIntosh has litigated cases involving the applicability of state hazardous waste management laws to the Rocky Mountain Arsenal, air quality regulatory requirements in Colorado, remediation at radioactive mill processing facilities, zoning land use, and the National Environmental Policy Act.
Ms. McIntosh has also served on a number of local government boards and commissions, including 12 years on the Lafayette City Council, the last four years of which she served as the Mayor of Lafayette. Ms. McIntosh served for three years on the Boulder County Long Range Planning Commission, for four years she participated in the Urban Drainage and Flood Control District, and by appointment by Governor Owens, Ms. McIntosh served for two years as the Denver representative on the Colorado Water Conservation Board. Additionally, for 10 years Ms. McIntosh served on the Denver Regional Council of Governments Board, and served for four years on the Metro Mayor's Council. She was also a founding member of the Northwest Parkway Public Highway Authority. Ms. McIntosh continues to work with Colorado local governments on planning, transportation, and appropriations issues.
I. Introduction
The Energy Policy Act of 2005 was signed into law by President George W. Bush on August 8, 2005. In view of increasing frustrations with the slow pace of energy development on federal lands perceived to be caused by an increase in NEPA litigation,1 a number of provisions in the Energy Policy Act were designed to reduce litigation potential and to streamline the NEPA review process associated with energy development. This paper examines the specific actions taken by Congress in the Energy Policy Act of 2005 to streamline and reduce the litigation risks of NEPA compliance.
II. Categorical Exclusions from NEPA Review
A. CEQ Regulations. The Council on Environmental Quality (CEQ) recognizes that certain categories of actions do not individually or cumulatively have a significant effect on the human environment. 2 Those types or categories of actions should be categorically excluded from NEPA review.
B. The CEQ regulations require that federal agencies adopt procedures identifying categorical exclusions. Both the BLM (516 Department Manual 11.5) and the Forest Service (Forest Service Handbook 1909.15, ch. 30) have done so. However, the activities that are categorically excluded are very narrow.
C. In the Energy Policy Act, Congress identified five oil and gas development and production activities that are subject to a "rebuttable presumption" that they are categorically excluded: 3
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1. Individual surface disturbances of less than 5 acres so long as the total surface disturbance on the lease is not greater than 150 acres and site-specific analysis in a document prepared pursuant to NEPA has been previously completed (Section 390(b)(1));
2. Drilling an oil or gas well at a location or well pad site at which drilling has occurred previously within 5 years prior to the date of spudding the well (Section 390(b)(2));
3. Drilling an oil or gas well within a developed field for which an approved land use plan or any environmental document prepared pursuant to NEPA analyzed such drilling as a reasonably foreseeable activity, so long as such plan or document was approved within 5 years prior to the date of spudding the well (Section 390(b)(3));
4. Placement of a pipeline in an approved right-of-way corridor, so long as the corridor was approved within 5 years prior to the date of placement of the pipeline (Section 390(b)(4)); and
5. Maintenance of a minor activity, other than any construction or major renovation or a building or facility (Section 390(b)(5)).
D. On September 30, 2005, BLM issued Instruction Memorandum No. 2005-247. The purposes of the IM included providing guidance for implementation of the Section 390 categorical exclusions.
E. As of the third week of January 2006, BLM reported that the categorical exclusions were used in connection with the issuance of approximately 200 APDs.
F. On January 25, 2006, BLM issued a Notice of proposed revision to the BLM's procedures for Chapter 11 of the Department of the Interior's Manual 516 DM--Managing the NEPA Process. 71 Fed. Reg. 4159-4167 (January 25, 2006).
1. Procedures were last updated May 19, 1992. The proposed changes address policy and procedure, clarify requirements for public participation, and identify the appropriate level of NEPA compliance for various types of actions.
2. The Notice was issued for a 30-day comment period, thus are due February 24, 2006.
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3. In addition to the five categorical exclusions (CXs) added by Section 390 of the Energy Policy Act, BLM is proposing a CX for geophysical exploration and two for geothermal energy actions that are applicable only in Nevada.
4. CXs are also proposed for forestry and rangeland management.
III. Expedited Review of Oil and Gas Leases and Permits (§§ 361 -- 363)
1. Review of Onshore Leasing Practices
a. The Secretary of the Interior, in consultation with the Secretary of Agriculture, is required by Section 361 to review current Federal onshore oil and gas leasing and permitting practices.
b. The scope of review is to include processes for accepting or rejecting offers to lease, administrative appeals, consideration of surface use plans of operation, and site-specific stipulations.
2. Timely Processing of Applications
a. Section 362(a) requires the Secretary of the Interior to ensure timely action on oil and gas leases and applications for permits to drill on land otherwise available for leasing, including NEPA compliance; state and public consultation; and collection, storage and retrieval of information.
b. Section 362(b) imposes similar requirements on the Secretary of Agriculture.
3. Best Management Practices
a. In addition, the Secretary of the Interior is to develop best management practices within 18 months to improve administration of the leasing program and ensure timely action on leasing and drilling permit applications.
b. Within 180 days after the best management practices have been implemented, the Secretary of the Interior is required to publish proposed regulations setting forth deadlines for approving or disapproving resource management plans, lease applications, APDs, surface use plans, and administrative appeals.
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4. Consultation MOU
a. Under Section 363, within 180 days of the Act's enactment, the Secretaries of Interior and Agriculture are required to enter into a memorandum of understating regarding oil and gas leasing.
b. The consultation MOU is to address, inter alia, administrative procedures to ensure timely processing of oil and gas lease applications, surface use plans, and APDs and eliminate duplication of effort.
c. The MOU must also address lease stipulations and apply them consistently, on a coordinated basis, and include provisions that are "only as restrictive as necessary to protect the resource for which the stipulations are applied."4
d. Lastly, the Secretaries are to establish a joint data retrieval system that includes a mechanism to track applications, format requests and geographic mapping information.
IV. NEPA Streamlining Pilot Project (§ 365)
A. Pilot Project to Improve Federal Permit Coordination. 5 Under this section, the Secretary of the Interior is to establish a Federal Permit Streamlining Pilot Project (the "Pilot Project").
1. Since several federal agencies will be participating in the Pilot Project, Section 365(b) requires that the Secretary of the Interior, Secretary of Agriculture, Administrator of the Environmental Protection Agency ("EPA"), and the Chief of Engineers enter into a memorandum of understanding ("MOU") within 90 days after the Act's enactment.
2. Because the Pilot Project will be implemented in Colorado, Montana, New Mexico, Utah, and Wyoming, the Secretary of the Interior may seek to have the Governors of each of these states as signatories to the MOU, as well.
...3. If appropriate, each agency shall assign staff to the participating field
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