Environmental update

Environmental update

August 08, 2019 | By Andrew Skroback in New York

The US Department of Agriculture has taken a significant step toward finalizing its revisions to Obama-era policies for conserving the greater sage grouse and its habitat in five Western states.

The revisions identify the potential environmental impacts on over five million acres of the bird's habitat in Colorado, Idaho, Nevada, Wyoming and Utah, and adjust how the US Forest Service will address them going forward.

The changes will ease restrictions on grazing livestock and give more flexibility to states to implement local strategies.

The bird's population has been in decline for decades as its habitat has been whittled away by development.

Efforts to protect the birds are controversial in Western states because of the effect on ranching, mining, oil and gas drilling and other businesses.

The Forest Service published its final environmental impact statement on August 2, 2019, beginning a 60-day public comment period. The changes could be final this year.

New Source Review

Power plants, refineries and other industrial facilities may get some relief from the cost of having to obtain air pollution permits for facility upgrades under certain circumstances.

The US Environmental Protection Agency proposed changes to the new source review permitting program on August 1 in an effort to provide relief from the cost of obtaining air pollution permits. The new source review is done under the Clean Air Act.

In general, the new source review program currently requires industrial facilities to install new pollution controls each time a company adds a new facility or expands existing operations.

Under the new proposal, power plants, refineries and other industrial facilities would only have to obtain new source review permits for "net" increases of pollution because EPA is calling for changing the way it calculates emissions from such expansions.

The proposal would change the way EPA calculates emissions of pollutants such as sulfur dioxide and nitrogen oxides for purposes of determining whether a permit is required and will allow industries to get credit for replacing aging inefficient boilers or other equipment with new equipment that may still cause emissions to increase.

EPA essentially suggests that the program should consider emissions decreases as well as increases in deciding whether the change in emissions from a project would trigger the need for an air permit.

Critics suggest that the changes would allow industry to avoid addressing increasing air emissions and inflate the credits that facilities receive from installing new equipment without properly examining the harm to air quality.

For example, a facility could get credit for installing a more efficient boiler, but the new program assessment may ignore the fact that the new boiler allows operational increases that result in more emissions than before the replacement boiler was installed.

The NRDC and other groups are expected to challenge the change in court after it becomes final following agency receipt and consideration of comments from the public.


EPA and the US Army Corps of Engineers have sent the White House Office of Management & Budget (OMB) for review the agencies' joint final rule to repeal the Obama administration's standards for determining the scope of Clean Water Act jurisdiction.

OMB received the repeal on July 12, beginning a review process that is expected to run for 90 days, but that could take longer.

At issue is whether a discharge of a pollutant into a "navigable water," defined as "waters of the United States," requires the discharger to obtain a national pollutant discharge elimination system permit. How the two agencies define "waters of the United States" will determine what is and is not regulated.

Once final, the new rule will narrow the definition of "waters of the United States" that are subject to federal Clean Water Act jurisdiction, by repealing a broader 2015 federal rulemaking. The repeal will revive a combination of older agency rules.

The repeal will only be the first step by the Trump administration, as a still narrower Clean Water Act standard is set for final action by as early as the end of 2019.

Even before a replacement rule is finalized, the repeal of the 2015 rule would have immediate effect in 23 states and parts of New Mexico. Those areas have been applying the broader 2015 standard. The repeal would end the current situation, where a split among US appeals courts has led to a split where different regions apply different standards.

Meanwhile, the question of whether a Clean Water Act permit is required to discharge pollutants to groundwater that eventually reaches navigable waters will be considered in the upcoming term by the US Supreme Court. The court has agreed to hear an appeal of a lower-court decision in County of Maui v. Hawai'i Wildlife Fund on a single question: "Whether the Clean Water Act requires an NPDES permit when pollutants originate from a point source, but are conveyed to navigable waters by a nonpoint source such as groundwater."

The answer will mend a split among the US courts of appeal.

New York Climate

New York Governor Andrew Cuomo signed into law far-reaching greenhouse gas reduction requirements in mid-July. The law sets an ambitious goal for New York of "net zero" carbon emissions by 2050.

The "Climate Leadership and Community Protection Act" requires the state to reach economy-wide greenhouse gas cuts of 85% from 1990 levels by 2050. It also directs various measures to advance reforestation and carbon capture or other technologies to offset the remaining emissions.

The new law requires that 70% of New York's electricity come from renewables by 2030. It directs that 9,000 megawatts come from offshore wind by 2035.

The New York State Climate Action Council will draft a "scoping plan" in the next three years to recommend state policies to achieve the long-term emissions reduction targets.

Last year, California set a goal of reaching net-zero greenhouse emissions by 2045 by executive order rather than by legislation as New York has now done.

Gas Pipelines

A US appeals court shed further light recently on whether the Federal Energy Regulatory Commission must look more broadly at the effects on natural gas production and consumption when evaluating the environmental effects of a proposed new pipeline. The issue is whether this is part of its obligations under the National Environmental Policy Act, or NEPA.

The court criticized FERC for failing to gather such information in a case called Birckhead v. FERC. The pipeline applicant had not told FERC the origin and destination of the gas to be transported via the pipeline. The court said FERC had an obligation in such situations to collect the information itself.

Although ultimately dismissed on procedural grounds, the case can be seen as a bellwether for further litigation in the NEPA area involving pipeline construction.

Meanwhile, the Council on Environmental Quality, which reports to the US president, released draft guidance in June for how agencies should consider greenhouse gases under NEPA.

The draft calls for minimal NEPA greenhouse gas reviews. Instead, it suggests that federal agencies should follow "the rule of reason" to "assess effects when a sufficiently close causal relationship exists between the proposed action and the effect." It suggests that "a 'but for' causal relationship is not sufficient."

The pending and expected legal battle over the scope of NEPA greenhouse gas reviews could affect federal agency assessments of new pipeline approvals.

Coastal Areas

Credit rating agencies like Moody's and Fitch have begun to demand answers from coastal cities and other municipalities about how they are preparing for climate change.

The demands have come as the agencies review proposed new municipal bond issuances.

The ratings scrutiny is only expected to increase. Bond issuers are being asked to explain what they are doing to adapt to rising sea levels and other impacts from climate change and how they are going to pay for it.