FERC Chair Takes Regrettable Step Backward on NEPA

Cumulative impact assessment is hard. That isn't a reason not to try.

The Federal Energy Regulatory Commission (FERC) has been having a hard time of it lately with its NEPA compliance.  But when the chair of one of our major energy permitting agencies says the following about NEPA, it is an unfortunate step backward–both for the statute and for the country.

An item in Greenwire today (subscription required) quotes Chairwoman LaFleur to the effect that

[b]ecause the NEPA analysis is “intentionally tailored to the individual project situation,” there’s no single answer that applies in all cases . . . . [Therefore, because] there’s no reliable formula . . . for measuring the local or global environmental impacts of cumulative emissions from any pipeline, compressor station or liquefied natural gas export terminal . . . [s]omebody else has to figure out how to crunch those numbers.”

It is absolutely the obligation of FERC as an “agency of the Federal Government” to

identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by [NEPA Title II], which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations

43 U.S.C. § 4332(2)(B).  To absolve oneself of duties that would flow into the detailed statement requirement of NEPA § 102(2)(C) by ignoring NEPA § 102(2)(B) is quite a step backward.  Especially at an agency that faces notoriously common “segmentation” challenges.  In other words, while NEPA levies an action-specific requirement to develop “detailed statements” as to particular agency proposals, and while the Council on Environmental Quality and reviewing courts have mostly interpreted that duty to include gathering only the “best available” information in comprising such statements, it is an unfortunate–and demonstrably incorrect–reading of the law to say that it isn’t FERC’s job to do better wherever possible as a result of longer-term investments in data and/or analysis.  See our post on FERC’s recent (questionable) cumulative impacts decision in the Dominion Cove Point matter here and our post on segmentation challenges here.

 

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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