NEPA guidance on greenhouse gas emissions

Federal agencies have new guidance on how to address the effects of greenhouse gas emissions and climate change as those agencies satisfy their duties under the National Environmental Policy Act.  This month the White House Council on Environmental Quality or CEQ issued its Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews.  The document is designed to improve clarity and consistency in how federal agencies address climate change in the environmental impact assessment process under NEPA.

Enacted in 1970, NEPA generally requires agencies to consider the environmental effects of proposed agency actions, and to provide the public and decision makers with useful information regarding reasonable alternatives and mitigation measures.  To coordinate federal environmental efforts, NEPA also established CEQ within the Executive Office of the President.  CEQ is now charged with issuing mandatory regulations for NEPA implementation, as well as guidance documents such as the recent greenhouse gas guidance.

In its final greenhouse gas guidance, CEQ described climate change as "a fundamental environmental issue" whose effects fall squarely within NEPA's purview.  In CEQ's words, "Analyzing a proposed action’s GHG emissions and the effects of climate change relevant to a proposed action — particularly how climate change may change an action’s environmental effects — can provide useful information to decision makers and the public." CEQ views focused and effective consideration of climate change in NEPA reviews as enabling higher quality agency decisions.

To this end, CEQ offered guidance that:

when addressing climate change agencies should consider: (1) The potential effects of a proposed action on climate change as indicated by assessing GHG emissions (e.g., to include, where applicable, carbon sequestration); and, (2) The effects of climate change on a proposed action and its environmental impacts.

The guidance presents further information and interpretation on each of these points. For example, it recommends that agencies quantify the direct and indirect greenhouse gas emission resulting from a proposed agency action, as well as both short- and long-term adverse and beneficial effects.  The guidance also stated that "a NEPA review should consider an action in the context of the future state of the environment." 

In one sense, the final guidance is just guidance.  As CEQ noted, agencies have discretion in how they tailor their individual NEPA reviews to accommodate the guidance. CEQ directed that agencies should apply this guidance to all new proposed agency actions as of the initiation of NEPA review.  It suggested that agencies "should exercise judgment" when considering the application of the guidance to an on-going NEPA process, but that CEQ does not expect agencies to apply the guidance to concluded NEPA reviews, nor to any actions for which a final Environmental Impact Statement (EIS) or Environmental Assessment (EA) has been issued.

CEQ recommended that agencies review their NEPA procedures and propose any updates they deem necessary or appropriate to facilitate their consideration of greenhouse gas emissions and climate change.  Agency procedures to implement NEPA may be in the form of regulations, although they are not required to take that form.  CEQ's final guidance on greenhouse gas emissions may lead other federal agencies to revise regulations, policies, or implementing procedures to ensure full compliance with NEPA.

FERC staff recommends against Bear River dam

Staff of the U.S. Federal Energy Regulatory Commission have recommended against licensing a dam, reservoir, and hydropower project proposed for the Bear River near Preston, Idaho.

The case involves a 2013 application by Twin Lakes Canal Company to the FERC for a license to construct, operate, and maintain the Bear River Narrows Project.  The project would be located on the main stem of the Bear River in Franklin County, Idaho, about 9 miles northeast of the city of Preston. It would feature a 109-foot-high dam impounding a 362-acre reservoir, and a powerhouse with an installed capacity of 10 megawatts and estimated average annual generation of of 48,531 megawatt-hours of electricity.  The reservoir would also be used to provide up to 5,000 acre-feet of water to Twin Lakes’ irrigation system during dry years.

Under the Federal Power Act, the FERC is charged with processing licenses for most hydropower projects in the U.S.  Federal law guides the FERC in this duty.  Sections 4(e) and 10(a)(1) of that act require the Commission to give equal consideration to the power development purposes and to the purposes of energy conservation; the protection of, mitigation of damage to, and enhancement of fish and wildlife; the protection of recreational opportunities; and the preservation of other aspects of environmental quality.  The Commission can only issue licenses that in its judgment are best adapted to a comprehensive plan for improving or developing a waterway or waterways for all beneficial public uses.  Additionally, the National Environmental Policy Act of 1969 requires the agency to analyze and document the environmental effects of proposed federal actions such as granting Twin Lakes' application.

Commission staff released its final environmental impact statement on Twin Lakes' license application on April 27, 2016.  That document, called an EIS, analyzes the effects of proposed project construction and operation, and recommends conditions for any license that may be issued for the project.

In the Bear River Narrows Project EIS, FERC staff considered Twin Lakes’ proposal for licensing, as well as three alternatives: (1) no-action (i.e. not licensing the project, so it can't be constructed); (2) the applicant’s proposal with staff modifications (staff licensing alternative); and (3) the staff licensing alternative with an additional condition requested by the Bureau of Land Management.

The EIS notes the existence of four Commission-licensed hydroelectric facilities located on the Bear River in Idaho with a combined installed capacity of more than 78 MW, including the Oneida development directly upstream.  It also notes uses of the "Oneida Narrows" section of the Bear River that would be flooded by the Bear River Narrows Project impoundment, including a recreational trout fishery and boating opportunities, and habitat for sensitive wildlife species.

Based on a review of the anticipated environmental and economic effects of the proposed project and its alternatives, as well as the agency and public comments filed on this project, staff recommends no action (license denial) as the preferred alternative.  In staff's words, "The overall, unavoidable adverse environmental effects of both action alternatives would outweigh the power and water storage benefits of the project."

For these reasons, FERC staff concluded that "any license issued for the proposed project could not be best adapted to a comprehensive plan for improving or developing the Bear River for all of its beneficial public uses, especially its substantial public recreation use at the proposed project site. We, therefore, recommend license denial."

Twin Lakes Canal Company's application to the Commission for a license to construct the project remains pending.

Merced River hydro relicensing Environmental Impact Statement released

Staff of the Federal Energy Regulatory Commission have released a final Environmental Impact Statement (EIS) evaluating proposals to relicense two hydroelectric power projects located on the Merced River in California.

The two projects are Merced Irrigation District’s existing 101.25 megawatt Merced River Project No. 2179-043, and Pacific Gas and Electric Company’s (PG&E) existing 3.4-MW Merced Falls Project No. 2467-020.  Prepared as part of the relicensing process for those projects, the Merced River EIS contains FERC staff evaluations of the applicants’ proposals and the alternatives for relicensing the Merced River and Merced Falls Hydroelectric Projects.  The staff’s recommendation is to relicense the project as proposed, with certain modifications, and additional measures recommended by the agencies.

The Federal Energy Regulatory Commission is authorized by the Federal Power Act to issue licenses for up to 50 years for the construction and operation of nonfederal hydroelectric development subject to its jurisdiction, on condition:

That the project adopted…shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, for the adequate protection, mitigation, and enhancement of fish and wildlife (including related spawning grounds and habitat), and for other beneficial public uses, including irrigation, flood control, water supply, and recreational and other purposes referred to in section 4(e)…

The Commission may also require such other conditions not inconsistent with the FPA as may be found necessary to provide for the various public interests to be served by the project.  To assist in this evaluation, and as required by the National Environmental Policy Act, FERC staff prepares the EIS.  It is designed to record the view of governmental agencies, non-governmental organizations, affected Indian tribes, the public, the license applicants, and FERC staff.

In the Merced River cases, the licensees used FERC's Integrated Licensing Process (ILP) and filed relicensing applications in February 2012.  FERC elected to process the applications for the two projects together "because they: (1) are located contiguously on the Merced River; (2) the Merced Falls Project’s operation depends entirely on flows released by the upstream Merced River Project; and (3) downstream of the Merced River Project, the environmental effects of both projects are interrelated."

Each applicant proposed some modified environmental measures in its license application, but no new capacity and no new construction at the project.  In the Merced projects' 840-page final EIS, Commission staff noted that the "primary issues associated with relicensing the projects are flow regimes in project-affected reaches for aquatic resources, project effects on physical habitat for aquatic resources, protection of wildlife resources, recreation enhancements, and protection of cultural resources." After consideration, Commission staff recommended the staff alternative, which consists of measures included in Merced ID’s and PG&E’s proposals, as well as some of the mandatory conditions and recommendations made by other state and federal agencies and non-governmental organizations, plus additional measures developed by FERC staff:

We chose the staff alternative as the preferred alternative because: (1) the projects would provide a dependable source of electrical energy for the region; (2) the generation comes from a renewable resource that does not contribute to atmospheric pollution, including greenhouse gases; and (3) the recommended environmental measures proposed by Merced ID and PG&E, as modified by staff, would adequately protect and enhance environmental resources affected by the projects. The overall benefits of the staff alternatives would be worth the cost of the environmental measures.

Ultimately, the Merced River hydropower relicensing project EIS concludes that "issuing new licenses for the Merced River and Merced Falls Projects, with the environmental measures we recommend, would not be major federal actions significantly affecting the quality of the human environment."

FERC issues EIS for Algonquin Incremental Market gas project

Staff of the Federal Energy Regulatory Commission have issued a final Environmental Impact Statement for a proposed natural gas transmission project connecting New York and New England.  In that report, Commission staff found that Algonquin Gas Transmission, LLC's Algonquin Incremental Market Project would result in some adverse environmental impacts, but that most of these impacts could be mitigated and reduced to less-than-significant levels.

A marker for the Williams Northwest Pipeline in Arches National Park, Utah.

 Algonquin Gas Transmission, LLC -- a subsidiary of Spectra Energy Partners, LP -- already owns a natural gas pipeline and transmission network running from the Texas Eastern Transmission system in New Jersey to the Maritimes & Northeast system near Boston.

In 2014, Algonquin proposed the Algonquin Incremental Market project.  The AIM project's would provide firm transportation service of 342,000 dekatherms per day of natural gas to local distribution companies and municipal utilities in Connecticut, Rhode Island, and Massachusetts.  Algonquin’s stated objectives for the Project are:

• to provide the pipeline capacity necessary to transport additional natural gas supplies to meet the immediate and future load growth demands of local gas utilities in southern New England;
• eliminate capacity constraints on existing pipeline systems in New York State and southern New England;
• provide access to growing natural gas supply areas in the Northeast region to increase competition and reduce volatility in natural gas pricing in southern New England;
• improve existing compressor station emissions through the replacement of existing compressor units with new, efficient units; and
• provide the additional service by November 2016.

As envisioned by Algonquin, the project will include the construction and operation of about 37.4 miles of natural gas pipeline in New York, Connecticut, and Massachusetts.  The project entails replacing some segments of existing pipeline, extending an existing loop pipeline to increase the system's capacity to ship gas, and installing some new pipeline.  It also includes modifications to six existing compressor stations, modifying existing meter and regulating stations, and the construction of 3 new meter and regulation stations.

Under federal law, Algonquin needs authorization from the Federal Energy Regulatory Commission to construct and operate the AIM project.  Algonquin filed its application to the FERC on February 28, 2014.  As part of the FERC's review process, the National Environmental Policy Act requires the agency to analyze and document the environmental effects of proposed federal actions such as granting Algonquin's application.

In Algonquin's case, that documentation took the form of a Final Environmental Impact Statement issued by the FERC staff today. In the final EIS, FERC's environmental analysts conclude that construction and operation of the AIM project would result in some adverse environmental impacts. However, FERC staff found that most of these impacts would be reduced to less-than-significant levels with the implementation of mitigation measures and plans proposed by Algonquin, along with additional measures recommended by the FERC staff.  Staff pointed to factors including the degree to which proposed AIM project pipeline facilities would be within or adjacent to existing rights-of-way, the planned use of the horizontal directional drill method to cross the Hudson and Still Rivers, which would avoid any direct impacts on these resources, as well as plans to minimize impacts on natural and cultural resources during construction and operation of the Project.

With the final Environmental Impact Statement issued, the FERC Commissioners will consider its staff's recommendations in making a final a decision on the AIM project.  Multiple studies have highlighted the need for up to 2 billion cubic feet per day (Bcf/d) of new pipeline capacity into New England and neighboring markets to improve reliability and reduce the cost to consumers of electricity and natural gas.  At a planned size of 342,000 dekatherms (or 0.342 Bcf) per day, the AIM project is relatively small in capacity compared to other proposed projects such as Tennessee Gas Pipeline Company, L.L.P.'s proposed Northeast Energy Direct Project, which is designed to be scalable up to 1.2 to 2.2 billion cubic feet per day of natural gas capacity.  Which pipelines end up being approved and built will shape the New England energy landscape in the coming years.

Constitution Pipeline environmental impact statement

A 124-mile natural gas transmission pipeline proposed from Pennsylvania to New York has received its final environmental impact statement from federal regulators, finding that while the project would cause some adverse environmental impacts but that mitigation would reduce them to less-than-significant levels.

The proposed Constitution Pipeline is designed connect natural gas supplies in northern Pennsylvania with major northeastern markets.  Proposed by Constitution Pipeline Company, LLC, a group whose investors include Williams, Cabot Oil & Gas, Piedmont Natural Gas, and WGL Holdings, the 30-inch underground pipeline would have a design capacity of 650,000 dekatherms of natural gas per day.  Constitution has pitched the project as a response to natural gas market demands in the New York and the New England areas, and interest from natural gas shippers that require transportation capacity from Susquehanna County, Pennsylvania to the existing Tennessee Gas Pipeline Company LLC (TGP) and Iroquois systems in Schoharie County, New York.

Developing an interstate natural gas pipeline requires a series of federal, state, and local approvals.  Under the federal Natural Gas Act, interstate pipelines must obtain a Certificate of Public Convenience and Necessity from the Federal Energy Regulatory Commission prior to construction.  Constitution started the pre-filing process in April 2012, and filed its certificate application under Section 7(c) of the Natural Gas Act with the FERC on June 13, 2013.

Under the National Environmental Policy Act, federal agencies must analyze and document the environmental effects of proposed federal actions such as issuing a certificate of public convenience and necessity for an interstate pipeline.  For the Constitution Pipeline and its associated Wright Interconnect compressor transfer station, FERC staff evaluated the projects' impacts on natural resources including geology, soils, groundwater, surface water, wetlands, vegetation, wildlife, fisheries, special status species, land use, visual resources, socioeconomics, cultural resources, air quality, noise, and safety.  Staff considered the projects' cumulative impacts along with other past, present, and reasonably foreseeable actions in the projects’ area.  Staff also evaluated over 400 alternatives to the projects, including the "no-action" alternative, system alternatives, major and minor route alternatives, and minor route variations.  In a collaborative effort, FERC staff also collected input from cooperating agencies including the U.S. Environmental Protection Agency, the U.S. Army Corps of Engineers, the Federal Highway Administration, and the New York State Department of Agriculture and Markets. 

FERC staff issued their Final Environmental Impact Statement, or EIS, for the Constitution Pipeline and Wright Interconnect projects on October 24, 2014.  In that document, staff concluded that construction and operation of the Constitution Pipeline and the associated Wright Interconnect would result in some adverse environmental impacts, but these impacts would be reduced to less-than-significant levels with the implementation of mitigation measures proposed by the company and additional measures proposed by FERC.  These mitigation measures include implementing plans for upland erosion control, revegetation, and maintenance plan, protecting wetlands and waterbodies, spill plans for oil and hazardous materials, an organic farm protection plan, and a karst mitigation plan. FERC staff also proposed an environmental inspection and mitigation monitoring program to ensure compliance with all mitigation measures that become conditions of the FERC authorizations and other approvals.

For the Constitution Pipeline project, the EIS represents a relatively favorable recommendation by FERC staff to the Commissioners.  The ultimate decision whether FERC will issue the project a certificate rests solely with the Commissioners themselves, but regulators typically rely heavily on their technical staff's evaluation of environmental impacts.  Likewise, while FERC's final EIS is not necessarily binding on cooperating agencies, they may adopt it if it satisfies their own statutory mandates for environmental reviews.

While the applicants had initially proposed to start construction in 2014, FERC staff acknowledged that "the proposed dates for the start of construction are no longer feasible."  Constitution now proposes to start construction in February of 2015 and continue through the end of 2015, pending receipt of all applicable federal authorizations.  The Federal Energy Regulatory Commission may rule on the projects' certificate applications as early as late November this year.

Keystone XL pipeline supplemental Environmental Impact Statement

The proposed Keystone XL pipeline took a step forward this month, as the U.S. State Department released its evaluation of the project's potential environmental impacts.  The draft Supplemental Environmental Impact Statement (EIS) released on March 1, 2013 documents the State Department's analysis of the pipeline's impacts to environmental resources based on the currently proposed route.  The EIS is still preliminary, and is now subject to public comment.  Moreover, even a final EIS would not reach any conclusion as to whether the pipeline serves the national public interest, and the project would still need a presidential permit to ship oil across the US-Canadian border.  Nevertheless the draft EIS does suggest that any environmental impacts from the pipeline would be relatively minor.

The Keystone XL project is a proposed extension of an existing crude oil pipeline.  The $7 billion project would run from the Canadian province of Alberta to Texas, delivering Canadian crude to refineries on the U.S. Gulf Coast.  The oil shipped on the pipeline would likely include so-called synthetic crude derived from Canada's oil sands or "tar sands" resources.

The draft EIS (available from the State Department's website) makes a series of findings about the project's potential environmental impacts, ranging from direct impacts along the pipeline's route to indirect impacts like further development of the Alberta oil sands.  As the State Department found in its earlier environmental review, the supplemental EIS found that the pipeline would not have significant impacts to any resources along the proposed project route.

Notably, the draft EIS found that Keystone XL would not be likely to substantially increase the rate of development of the oil sands, nor would it likely increase the volume of crude oil refined in the Gulf Coast.  For example, the draft found that denial of the pipeline's presidential permit would not mean a reduction in oil production in Western Canada or from the Bakken formation; rather, oil producers would resort to other transportation modes such as pipelines to British Columbia or even rail shipment of crude.  For similar reasons, the draft EIS found that the Keystone XL pipeline would not substantively change global greenhouse gas emissions.

Next steps for the Keystone XL project include a 45-day public comment period, after which the State Department will issue a final EIS.  Later this year, the State Department is expected to issue a so-called national interest determination, considering factors including foreign policy, economics, environmental concerns, and national security. This determination will involve consultation with other agencies, including the U.S. Departments of Defense, Justice, Interior, Commerce, Transportation, Energy, Homeland Security and the Environmental Protection Agency.  The final decision whether to allow the pipeline falls to President Obama.

Cobscook tidal project environmental review

A tidal energy project proposed in Maine has passed an initial federal environmental review.  Federal regulators have released an environmental assessment of the Cobscook Bay Tidal Energy Project (182-page PDF), finding generally that licensing the hydrokinetic project with appropriate environmental protective measures would not constitute a major federal action that would significantly affect the quality of the human environment.

The Cobscook Bay project is proposed by Ocean Renewable Power Company Maine, LLC.  ORPC proposes to develop a 300 kilowatt hydrokinetic project in Cobscook Bay near the city of Eastport and the town of Lubec, Maine.  The project entails five cross-flow hydrokinetic turbine generator units, each with a rated capacity of 60 kW.  According to FERC, the project's construction will cost an estimated $11.5 million, with operation and maintenance adding $146,000 per year.  Staff's analysis suggests that during its first year of operation, the project would produce power at a cost that is $1.3 million more than the cost of alternative power (or about 1 cent per kWh above alternative power).

ORPC Maine has applied to the Federal Energy Regulatory Commission for an 8-year pilot license for the Cobscook project.  Under the National Environmental Policy Act, federal agencies must evaluate the environmental impacts of agency actions such as issuing licenses for energy projects.  Performing an environmental assessment is one step in the NEPA process.  If the agency concludes that issuing the license would have relatively minor environmental impacts, as the FERC did for the Cobscook project, it can avoid the more stringent review process of preparing an environmental impact statement.

In the Cobscook project's environmental assessment, FERC staff recommended licensing the project with several additional modifications.  FERC invites public comment for 30 days following publication of notice of the environmental assessment.

February 4, 2011 - Hawaii's Big Wind project

Islands hold a special place in our hearts.  The same facts of geography that lead to islands' charm can also play a role in making island energy a challenging issue.  Islands around the world face similar challenges; whether it's Martha's Vineyard energy strategy or offshore wind near the Maine islands of Damariscove or Monhegan, islanders face questions of how to power society and whether or how to interconnect with the mainland.

Due to its geographic isolation, the Hawaiian islands' energy strategy is especially interesting.  This week, hearings are being held in Hawaii on a major wind energy project and its associated undersea transmission development.  Hawaii's renewable portfolio standard requires utilities selling power to source an increasing amount of energy from renewable resources.  The renewable mandate starts from 10% of net electricity sales effective December 31, 2010, and increases to 40% by December 31, 2030.

One option under consideration involves 400 megawatts of wind energy to be sited in Maui County, particularly on or near the islands of Lana`i and Moloka`i.  Connecting that generation to the consumers on Oahu, Hawaii's most populous island, will require underwater transmission cables.  Currently, the state of Hawaii and federal agencies are collaborating on a programmatic environmental impact statement (or EIS).  Under the federal National Environmental Policy Act (NEPA), before the government can undertake or approve actions "significantly affecting the quality of the human environment", involved agencies must draft an assessment of the positive and negative environmental effects of the proposed action.  This information is then used for multiple purposes, including helping the agency evaluate specific proposed projects, as well as helping project developers understand the impacts of their project and what they can do to address any negative impacts.

Hawaii is home to some other renewable generation, including an innovative ocean thermal energy conversion facility.  OTEC has great potential, but the cost of producing power on a commercial scale is not yet cost-competitive with other resources - not even with oil, the fuel behind about 90% of Hawaii's energy needs.  Hawaiian energy thus has been relatively expensive.  Wind has the potential to be more cost-effective, but due to visual and other impacts is facing some opposition in the islands.  Will the Hawaiian wind effort take off?