Transmission Line Developers Post a Win

Posted on September 11, 2013 by Rick Glick

A federal court in Washington, D.C. gave some encouragement to transmission line developers—not to mention sponsors of other linear projects, like gas or water pipelines.  In National Parks Conservation Assn. (NPCA) v. Jewell, the court rejected a challenge to the National Parks Service’s grant of special use permits and extended rights-of-way for the Susquehanna to Roseland Transmission Line (S-R Line), a replacement and upgrade project.

The focus of Appellant NPCA’s attack was the National Environmental Policy Act (NEPA), a potent weapon in years past.  Under NEPA, a federal agency considering a “major” action must evaluate the environmental effects of the project.  After an initial Environmental Assessment, the agency either conducts a full blown Environmental Impact Statement (EIS) or issues a Finding of No Significant Impact.  NEPA’s purpose is to ensure that the agency takes a “hard look” at the environmental tradeoffs of its intended action, but once having done that, it can decide to move forward regardless.  In other words, NEPA is a procedural statute, but lacks teeth to prevent the agency from acting.

Still, NEPA has proved effective in stopping projects in their tracks.  The usual avenues of attack have been whether the agency should have written an EIS, whether it considered all reasonable alternatives, whether the EIS needs updating, and whether the project should be seen in a larger context of other similar developments or as part of a broad program.  In recent years, however, the agencies have learned how to beat back such challenges.

The NPCA made allegations on similar bases here, but this time to no avail.  The Parks Service’s EIS took an adaptive management approach to mitigation, anticipating that the mitigation plan would evolve.  The NPCA argued that the EIS must analyze the mitigation ultimately decided on, but the court was satisfied the agency had taken the requisite “hard look.”  Nor did the court find a supplemental EIS necessary because the “new information” adduced by the NPCA concerned environmental effects that were already within the scope of the EIS.

The NPCA also argued that the alternatives analysis in the EIS was lacking because it didn’t adequately consider the no-action alternative.  In this case, the no-action alternative would be to pursue a non-transmission approach, such as distributed energy.  The court deferred to the Parks Service’s analysis that this alternative would not meet the objective of improving the reliability of the applicants’ existing line.  The court found that the Parks Service rationally considered and rejected the no-action alternative.

The court also rejected the argument that the Parks Service should have analyzed the environmental effects of the entire S-R Line, and agreed the agency could look just at the consequences of extending the right-of-way.  The judge took note of the fact that the project sponsors could have reconstructed the line on their existing right-of-way, and therefore there was no functional difference between the reconstructed line on the proposed right-of-way and the existing one.

The court’s approach in this case is consistent with NEPA case law in recent years.  Agencies will be given some deference in their decision making, so long as their NEPA documents indicate a good faith effort to look at environmental impacts.  Project opponents can no longer rely on NEPA as a reliable weapon to block development. 

The National Environmental Policy Act: The Bureau of Reclamation Bypasses an EIS and Opts for an Environmental Assessment for a Major Water Diversion Project

Posted on November 7, 2012 by Thomas Hnasko

On January 27, 2011, the Bureau of Reclamation (“BOR”) issued an environmental assessment (“EA”) for the Ute Lake Diversion Project in eastern New Mexico, which would withdraw up to 24,000 acre-feet per year of water from Ute Lake and transport it via hundreds of miles of pipeline to communities in eastern New Mexico.  Inexplicably, the BOR found that this major federal project would not materially affect the environment and issued a finding of no significant impact (“FONSI”).  Based on the FONSI, the members of the proposed pipeline (including various municipalities in eastern New Mexico), announced their intention to begin construction of a $14 million intake structure at the side of the lake, which would require detonation activities and result in a potential fish kill from the detonation and the resulting turbidity.

The Village of Logan, a small community wholly dependent on the recreational resources derived from Ute Lake, filed suit in New Mexico Federal District Court, claiming that the BOR’s decision to perform an EA was contrary to its internal regulations and that an Environmental Impact Statement (“EIS”) must be prepared based on numerous significant environmental impacts resulting from the proposed project.  Additionally, Logan claimed that numerous alternatives existed to the project, including retiring groundwater rights presently used for agriculture, or treating effluent and re-injecting water into the Ogallala Aquifer.  Both options, according to Logan, would create a sustainable water source for eastern New Mexico until at least 2060.

The CEQ Regulations identify the specific circumstances under which a federal agency should perform an EIS before committing resources to a major federal action.  40 C.F.R. § 1501.4 provides that an EIS should be prepared where an agency’s own internal guidelines and procedures provide that a proposed federal action is the type that “normally requires” an EIS.  The BOR’s internal guidelines provide that the Bureau will “normally require” the preparation of an EIS prior to the initiation of construction of any major water project, which all parties agree includes the Ute Lake Diversion Project.  However, the BOR says it has discretion not to perform an EIS because the word “normally” does not mean “always.”  Logan has countered by claiming that the Bureau cannot avoid an EIS unless it has developed specific procedures stating when and under what circumstances an EA may be performed, in lieu of an EIS.  In the present situation, the BOR has no such guidelines identifying the projects for which an EA, rather than an EIS, may be appropriate.  Accordingly, Logan contends that there is no objective basis for the Bureau to side-step the EIS requirements and that the FONSI must be reversed.

The matter is presently scheduled for a preliminary injunction hearing before the Honorable William Johnson, District Court Judge, District of New Mexico.