Alan Kovski
OGJ Washington Correspondent
Environmental reviews would be faster and more narrowly focused to expedite permitting decisions under a proposal released Jan. 9, by the White House Council on Environmental Quality (CEQ), potentially accelerating the permitting process for future oil and gas projects.
Modernization
The proposal would instruct regulatory agencies on how to streamline reviews under authority of the National Environmental Policy Act (NEPA), which governs the analysis of environmental impacts for oil and gas exploration and production plans, proposed pipelines, refinery expansions, and a host of other activities if they require a federal permit.
The NEPA “modernization” proposal includes a target of 2 years for completing an environmental impact statement (EIS) and 1 year for completing an environmental assessment (EA), plus a push for agencies to adopt length limits on documents. Work on an EIS often takes 4 years or more to complete when a project is large or complex.
The proposal would direct multiagency reviews to develop a single EIS and a single record of decision where appropriate, and would strengthen the role of a lead agency in riding herd on the other agencies involved in a permit review.
More controversially, the proposal would eliminate a regulatory requirement for cumulative impact assessments, which can go well beyond the specific project. It would exclude consideration of environment effects that an agency cannot control or that would have occurred anyway, and it would exclude consideration of effects connected to the proposed action only by a lengthy causal chain that is judged “too attenuated” to be meaningful.
Such language, anticipated by critics awaiting the proposal, may be interpreted as meaning human-induced climate change is too remote in terms of a causal chain or is beyond the power of an agency to control.
Once the proposal is published in the Federal Register, the public will have 60 days to file comments. A CEQ fact sheet indicated the comment deadline likely would be about March 10. Some of the comments will express fierce opposition, if comments from environmental activist groups are any indication.
“We will use every tool in our toolbox to stop this dangerous move and safeguard our children’s future,” said Gina McCarthy, president of the Natural Resources Defense Council, in a statement responding to the release of the proposal.
It remains to be seen what tools will be available. There is a legitimate question about legal standing to sue over CEQ regulatory guidance, an attorney familiar with NEPA told OGJ. CEQ policies guide regulators but do not, by themselves, regulate anyone, and that may mean environmental opponents would not be able to stop the guidance in court, said the attorney, who asked not to be identified.
But an agency putting the guidance into action through its own regulations might then be sued, the attorney acknowledged.
Because the wheels of government can turn slowly in agencies such as CEQ, the attorney added, “I question whether this can be done before the election,” referring to the next presidential election.
Industry support
Strong support from oil and gas associations was expressed as soon as CEQ released the proposal.
NEPA “has become associated with inherent uncertainty, prolonged project delays and stifling of investment. It does not have to remain this way,” said Erik Milito, president of the National Ocean Industries Association, in a statement welcoming the CEQ’s proposal. “Today’s proposed NEPA modernization balances the need for infrastructure investment and project development with environmental stewardship.”
NEPA has an important role, but “for many years we have seen the law being abused by environmentalists with extreme agendas to delay and halt various multiple-use activities on federal lands, including oil and gas production,” said Dan Naatz, senior vice president of government relations and political affairs at the Independent Petroleum Association of America.
Similar expressions of support for the proposed changes came from the American Petroleum Institute, the American Gas Association, the Interstate Natural Gas Association of America and other trade groups.
NEPA was signed into law in 1970. CEQ said it has not comprehensively updated the regulations in more than 40 years.
Details and background information can be found at https://ceq.doe.gov/laws-regulations/regulations.html.
