Legal fights foreseen for proposed changes to environmental reviews
Oil and gas associations and environmental activists have filed their arguments over the merits or failings of proposed changes to National Environmental Policy Act (NEPA) regulations. They made it clear they were girding for court battles.
The White House Council on Environmental Quality (CEQ) released its proposals Jan. 9 to fundamentally revamp the guidelines that federal agencies must follow when they consider allowing oil and gas leasing, pipeline construction, geophysical surveys and an array of other commercial and government activities.
NEPA requires an analysis of the potential environmental impacts of a federal decision, such as the issuance of a project permit. The procedures for such reviews have grown to take almost 5 years, on average, to get from a notice of intent to a record of decision, and that does not include preceding analyses or following litigation, said the National Ocean Industries Association in its comments filed March 10.
The CEQ proposed, among many other things, to set targets for the time and document size of analyses and to simplify analyses by eliminating separate consideration of indirect and cumulative impacts. The proposals also would eliminate the need for analysis of impacts too remote in time or location for a meaningful causal connection to a particular project.
As the March 10 deadline for public comment on the proposals arrived, the pro and con arguments arrived with a notable stress on legal technicalities and precedents. That stress reflected an expectation that the changes would be litigated—if not when finalized by CEQ, then when applied by agencies.
Armed for legal fights
The CEQ said its goal was to make NEPA regulations more efficient, effective, and timely. But environmental groups argued the proposed changes involved legally impermissible reductions in environmental analyses and public input.
The proposals are “arbitrary and capricious,” said the Center for Biological Diversity, using a phrase from the Administrative Procedure Act often employed by that group and others to contest projects in court.
The proposed changes violate the Endangered Species Act by failing to include CEQ consultation with the US Fish and Wildlife Service and the National Marine Fisheries Service over possible impacts on endangered species, the Center for Biological Diversity said. The group also said CEQ was obligated to prepare a cost-benefit analysis under Executive Order 12866, issued by President Clinton in 1993.
The proposed elimination of a requirement for cumulative impact analysis would violate court precedent, the group said. It said the Supreme Court, in the 1976 case Kleppe v. Sierra Club, required cumulative impact analysis.
Anticipating court fights, the Independent Petroleum Association of America (IPAA) said it supported the CEQ’s language on the “severability” of parts of the proposed changes from each other.
“If any section or portions of these regulations are stayed or invalidated, it should have no bearing on the validity of the remaining sections,” the IPAA said.
Impacts and their causes
Industry groups had their own legal arguments ready, notably in a joint filing by the American Petroleum Institute (API), the Association of Oil Pipe Lines (AOPL), and the International Association of Geophysical Contractors (IAGC).
Federal agencies are entitled to substantial deference from courts if the agencies’ regulatory changes do not contradict a law, are promulgated with stated good reasons—such as efficiency—and are developed through a detailed process, the three groups said. They cited the 1979 Supreme Court decision in Andrus v. Sierra Club in support of their position.
API, AOPL, and IAGC also anticipated citation of Kleppe v. Sierra Club in reference to cumulative effects analysis. The CEQ changes would not strictly require analysis of cumulative effects but would leave agencies the authority to determine the extent and impacts of such effects as appropriate, and that should satisfy the courts, the associations said.
“Second, even assuming Kleppe found an independent statutory basis to assess cumulative effects, that portion of its holding is superseded by Chevron,” the associations said. That was a reference to the 1984 case of Chevron USA Inc. v. Natural Resources Defense Council, in which the Supreme Court concluded courts should defer to the expertise of agencies in cases where laws are unclear and the agencies offer reasonable interpretations.
NEPA does not include the phrases “cumulative impacts” or “indirect impacts.” Those phrases stem from regulators and courts. API, AOPL, and IAGC said the regulations should analyze effects that have a “reasonably close causal relationship” to a proposed project. The associations argued for something that they said would be similar to a “proximate cause” analysis under tort law, and they cited as support for such a strategy the 2004 Supreme Court decision in Department of Transportation v. Public Citizen.
