NEPAlachia Energy Policy, Pipelines and the Programmatic EIS. The shale revolution has upended U.S. energy markets.

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1 NEPAlachia Energy Policy, Pipelines and the Programmatic EIS Mark (Buzz) Belleville Professor and Director of the Natural Resources Law Center Appalachian School of Law, Grundy, Virginia (with gratitude to Research Assistant Kimberly Smith, ASL Class of 2018) The shale revolution has upended U.S. energy markets. So began the Separate Statement of the outgoing Chairman of the Federal Energy Regulatory Commission, Norman Bay, attached to the final pipeline decision issued by FERC before the Trump administration appoints a number of new commissioners. 1 Chairman Bay went on to describe the significant infrastructure that is needed, and is being proposed and considered for permitting, to support this shale revolution. His point in issuing a Separate Statement (which really had nothing to do with the actual permitting decision FERC was issuing that day) was to suggest that perhaps existing processes and standards for making individual pipeline decisions needed to be reexamined. While the Keystone XL and Dakota Access Pipeline proposals have garnered much attention, there is a broader and more fundamental shift occurring in our energy production and consumption infrastructure that has challenged the regulatory and permitting processes currently in place. As coal consumption in the U.S. declines, for instance, that industry craves greater export terminals to transport its product to Asia and other developing markets. As oil and gas is gushing from heretofore undrilled or lightly drilled areas, rail and pipeline transport has proven inadequate to bring such supply to market. As industrial-scale wind and solar energy penetrate our energy markets, there is 1 In re National Fuel Gas Supply Corp. et al, FERC Docket Nos. CP , CP , 158 FERC P 61145, 2017 WL (Feb. 3, 2017). Paper 16 1

2 growing need for transmission lines to the previously unconnected deserts and Plains and ridgelines. All of the proposed infrastructure needed to support our shifting energy habits requires some sort of regulatory approval. And it is during these processes that indisputably laudable goals energy independence, affordability, sustainable use of resources, climate change, health and safety, environmental protection, streamlining regulatory processes, private property rights, and preserving view sheds and national forests are regularly clashing. Where separate voices in support of these at times irreconcilable concerns are most publicly and meaningfully raised is during the environmental review that is required under NEPA (and its state-law counterparts) before decisions are made to permit energy infrastructure projects. Pipelines in Appalachia At the core of this presentation is the idea of making greater use of programmatic and/or regional NEPA reviews to address the many disparate concerns being raised as the nation addresses the infrastructure challenges associate with a changing energy industry. In that sense, this presentation is much broader than natural gas pipeline proposals in Appalachia. Nonetheless, this presentation focuses particularly on such proposals, as it is becoming clear to this presenter that there is not a better example of the need for permitting agencies (in this case, FERC) to take a holistic and programmatic perspective in making decisions on essential energy infrastructure. As anyone who has been attending Energy and Mineral Law Foundation conferences for the past decade can attest, there is not a more important regional energy development Paper 16 2

3 than the boom that has come from the Marcellus and Utica natural gas shale plays. The challenge now being faced is to bring the natural gas being extracted from those plays to population centers. This means pipelines. Particularly, though by no means exclusively, this means pipelines heading south and east. This means that proposed pipelines must pass through national forests, private farmlands, important water aquifers, and scenic trails. Included among the dozens of major oil and gas pipelines currently pending before FERC (see are several interstate natural gas pipelines that seek to transport Marcellus and/or Utica natural gas to the east coast. Most are controversial, or at least have sparked significant local and environmental opposition. Foremost among these are the Atlantic Coast Pipeline covering nearly 600 miles from northern West Virginia through Virginia and North Carolina; the Mountain Valley Pipeline (MVP), covering 303 miles from northwestern West Virginia to southern Virginia; the Appalachian Connector Pipeline which would traverse an approximately parallel route to the MVP; the Atlantic Sunrise Expansion Project, which calls for 200 miles of new pipeline in Pennsylvania along a 10,500-mile line that runs from New York to the Gulf of Mexico; the Penn East Pipeline Project, with 120 miles running from northeastern Pennsylvania to New Jersey; and the Mountaineer XPress Pipeline Project covering some 165 miles in West Virginia. This presentation is not an attempt to catalog or discuss all of the many concerns that have been raised with respect to the various proposed pipelines. Rather, what this presentation focuses on is the call of many for the need for some sort of programmatic or regional review of the various proposals, in order to address both the cumulative impacts Paper 16 3

4 of the multiple proposed lines on traditional resources (rather than considering each pipeline in isolation) and to consider the indirect effects that multiple new pipelines may have on the environment (namely, the climate change impacts from the combustion of transported natural gas). What follows in this presentation handout is the underlying law, regulations and agency guidance that frames the issue of whether FERC should undertake a programmatic or regional environmental review to consider the cumulative impacts and indirect effects of permitting multiple natural gas pipelines. Also included is a brief description of several instances where programmatic environmental reviews were undertaken as agencies considered actions that would significantly shape our energy policy. NEPA s EIS Requirement The requirement to prepare Environmental Impact Statements comes from the National Environmental Policy Act (NEPA), which requires that all federal agencies: (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment; (B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations; (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on-- (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, Paper 16 4

5 (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 42 U.S.C. 4332(C) (emphasis added). The Council of Environmental Quality (CEQ) The Council of Environmental Quality (CEQ) was created with the original enactment of NEPA. CEQ is statutorily charged with, among other things, reviewing the actions of the federal government and giving advice on how best to meet the goals of NEPA. 42 U.S.C CEQ accomplishes this both through the adoption of formal regulations, and through issuing Guidance for use by federal agencies as they undertake environmental reviews. Executive Orders issued by Presidents Nixon and Carter (Exec. Order (Mar. 5, 1970), Exec. Order (May 24, 1977)) more specifically directed CEQ to issue regulations on how to implement the procedural requirements of NEPA, and required federal agencies to comply with such regulations. In 1978, CEQ finalized a suite of regulations that remain the guiding directives on how other federal agencies must conduct environmental reviews in order to meet their NEPA obligations. 43 Fed.Reg (1978). These are now codified at 40 C.F.R. Part A number of the CEQ regulations are pertinent to the use of programmatic EISs to set energy policy, and to FERC s obligations in considering the current bevy of natural gas pipeline proposals. Attention is particularly drawn to FERC s obligation to consider both the cumulative impacts and the indirect effects of a particular federal action. And, Paper 16 5

6 although the regulations do not speak of programmatic environmental impact statements, they do encourage tiering. Tiering happens when an agency conducts a broad environmental review of particular federal action that can then be incorporated, and thus will not have to be repeated, when reviewing particular site-specific proposals. Scope of NEPA Environmental Reviews To begin, CEQ regulations define the scope of environmental reviews that must be conducted under NEPA. This is where the concept of cumulative impacts and indirect effects comes from. For major energy infrastructure projects, some environmental impacts are largely unavoidable such that the required environmental review will usually result in an environmental impact statement or EIS. The scope of each such EIS must satisfy the following requirements: Scope consists of the range of actions, alternatives, and impacts to be considered in an environmental impact statement. The scope of an individual statement may depend on its relationships to other statements ( and ). To determine the scope of environmental impact statements, agencies shall consider 3 types of actions, 3 types of alternatives, and 3 types of impacts. They include: (a) Actions (other than unconnected single actions) which may be: (1) Connected actions, which means that they are closely related and therefore should be discussed in the same impact statement. Actions are connected if they: (i) Automatically trigger other actions which may require environmental impact statements. (ii) Cannot or will not proceed unless other actions are taken previously or simultaneously. (iii) Are interdependent parts of a larger action and depend on the larger action for their justification. (2) Cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement. (3) Similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis Paper 16 6

7 for evaluating their environmental consequences together, such as common timing or geography. An agency may wish to analyze these actions in the same impact statement. It should do so when the best way to assess adequately the combined impacts of similar actions or reasonable alternatives to such actions is to treat them in a single impact statement. (b) Alternatives, which include: (1) No action alternative. (2) Other reasonable courses of actions. (3) Mitigation measures (not in the proposed action). (c) Impacts, which may be: (1) Direct; (2) indirect; (3) cumulative. 40 C.F.R (emphasis added). Cumulative Impacts As the regulation quoted above makes clear, the cumulative impacts of agency decisions are required to be considered when conducting a NEPA review. This requirement has led to arguments that FERC should not consider each proposed pipeline in isolation, but should consider the cumulative impacts of recently approved and other pending pipeline proposals as it decides whether to permit a particular project. Cumulative impacts are defined as follows: Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. 40 C.F.R Paper 16 7

8 Indirect Effects The environmental consequences that must be discussed in an EIS include both direct and indirect effects: [T]he environmental impacts of the alternatives including the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, the relationship between short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and any irreversible or irretrievable commitments of resources which would be involved in the proposal should it be implemented. This section should not duplicate discussions in It shall include discussions of: (a) Direct effects and their significance ( ). (b) Indirect effects and their significance ( ). (c) Possible conflicts between the proposed action and the objectives of Federal, regional, State, and local (and in the case of a reservation, Indian tribe) land use plans, policies and controls for the area concerned. (See (d).) (d) The environmental effects of alternatives including the proposed action. The comparisons under will be based on this discussion. (e) Energy requirements and conservation potential of various alternatives and mitigation measures. (f) Natural or depletable resource requirements and conservation potential of various alternatives and mitigation measures. (g) Urban quality, historic and cultural resources, and the design of the built environment, including the reuse and conservation potential of various alternatives and mitigation measures. (h) Means to mitigate adverse environmental impacts (if not fully covered under (f)). 40 C.F.R (emphasis added). This requirement to consider indirect effects has led to arguments that FERC must consider whether permitting a particular pipeline will result Paper 16 8

9 in an increase in the extraction and combustion of natural gas, with deleterious effects on climate change. The regulations go on to define effects : Effects include: (a) Direct effects, which are caused by the action and occur at the same time and place. (b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. Effects and impacts as used in these regulations are synonymous. Effects includes ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial. 40 C.F.R (emphasis added). Programmatic NEPA reviews The CEQ regulations themselves do not specifically speak of programmatic environmental reviews, although such reviews have been undertaken since NEPA s procedural obligations were first crystallized and codified. The regulations have always contemplated that closely related federal actions should be considered in a single EIS: (a) Agencies shall make sure the proposal which is the subject of an environmental impact statement is properly defined. Agencies shall use the criteria for scope ( ) to determine which proposal(s) shall be the subject of a particular statement. Proposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statement. Paper 16 9

10 (b) Environmental impact statements may be prepared, and are sometimes required, for broad Federal actions such as the adoption of new agency programs or regulations ( ). Agencies shall prepare statements on broad actions so that they are relevant to policy and are timed to coincide with meaningful points in agency planning and decisionmaking. (c) When preparing statements on broad actions (including proposals by more than one agency), agencies may find it useful to evaluate the proposal(s) in one of the following ways: (1) Geographically, including actions occurring in the same general location, such as body of water, region, or metropolitan area. (2) Generically, including actions which have relevant similarities, such as common timing, impacts, alternatives, methods of implementation, media, or subject matter. (3) By stage of technological development including federal or federally assisted research, development or demonstration programs for new technologies which, if applied, could significantly affect the quality of the human environment. Statements shall be prepared on such programs and shall be available before the program has reached a stage of investment or commitment to implementation likely to determine subsequent development or restrict later alternatives. (d) Agencies shall as appropriate employ scoping ( ), tiering ( ), and other methods listed in and to relate broad and narrow actions and to avoid duplication and delay. 40 C.F.R (emphasis added). Moreover, environmental reviews under NEPA have always contemplated a process known as tiering. Under a tiered review, standards for a particular technology may be evaluated (such as mountaintop surface mining); that broad review may then be incorporated into a site-specific evaluation of a particular proposal to use that technology. A tiered review may also lead to the identification of particularly suitable sites for certain types of projects (such as industrial-scale solar on federal desert lands); that broad review may then be incorporated into the NEPA analysis of particular proposed projects. CEQ s 1978 regulations encouraged this tiered review: Agencies are encouraged to tier their environmental impact statements to eliminate repetitive discussions of the same issues and to focus on the actual Paper 16 10

11 issues ripe for decision at each level of environmental review ( ). Whenever a broad environmental impact statement has been prepared (such as a program or policy statement) and a subsequent statement or environmental assessment is then prepared on an action included within the entire program or policy (such as a site specific action) the subsequent statement or environmental assessment need only summarize the issues discussed in the broader statement and incorporate discussions from the broader statement by reference and shall concentrate on the issues specific to the subsequent action. The subsequent document shall state where the earlier document is available. Tiering may also be appropriate for different stages of actions. (Section ). 40 C.F.R Tiering refers to the coverage of general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared. Tiering is appropriate when the sequence of statements or analyses is: (a) From a program, plan, or policy environmental impact statement to a program, plan, or policy statement or analysis of lesser scope or to a sitespecific statement or analysis. (b) From an environmental impact statement on a specific action at an early stage (such as need and site selection) to a supplement (which is preferred) or a subsequent statement or analysis at a later stage (such as environmental mitigation). Tiering in such cases is appropriate when it helps the lead agency to focus on the issues which are ripe for decision and exclude from consideration issues already decided or not yet ripe. 40 C.F.R CEQ Guidance Over the years, CEQ has issued various guidance papers for federal agencies on how to best make use of the tiering process and programmatic environmental reviews. In 1983, Paper 16 11

12 CEQ issued Guidance Regarding NEPA Regulations (July 28, 1983), 48 Fed. Reg , which explains the use of tiering and its place in the NEPA process. In 2005, CEQ built upon this guidance in giving direction on how federal agencies should deal with multiple proposals that may affect the same resources: In geographic settings where several Federal actions are likely to have effects on the same environmental resources it may be advisable for the lead Federal agencies to provide historical or other baseline information relating to the resources. This can be done either through a programmatic NEPA analysis or can be done separately, such as through a joint inventory or planning study. The results can then be incorporated by reference into NEPA documents prepared for specific Federal actions so long as the programmatic analysis or study is reasonably available to the interested public. CEQ Guidance on the Consideration of Past Actions in Cumulative Effects Analysis (June 24, 2005), available at PastActsCumulEffects.pdf. Finally, in December, 2014, CEQ issued Guidance on Effective Use of Programmatic NEPA Reviews, (Dec. 18, 2014), available at views_18dec2014.pdf. This Guidance urged federal agencies to use programmatic EISs whenever appropriate, explaining: Programmatic NEPA reviews provide an opportunity for considering environmental consequences at a broader level and enhance the integration of environmental concerns and mitigation into an agency s planning procedures. In addition, agencies that are able to clearly explain how specific, outstanding and future actions will be addressed in subsequent tiered documents, and how the analysis will be vetted publicly, will ensure that the public is informed and can improve the quality of participation and Paper 16 12

13 analysis agencies receive from the public, thereby enhancing decisionmaking. In addition to issuing guidance on the consideration of cumulative impacts and making use of programmatic reviews, CEQ recently issued Guidance on Greenhouse Gases and Climate Change, (Aug. 2, 2016), 81 Fed. Reg Four of the most significant topics covered by the Guidance are: 1. CEQ s continuing position that federal agencies should include consideration of GHG emissions and climate change impacts in NEPA alternatives analyses; 2. CEQ s elimination of its 25,000 ton per year CO2-equivalent emissions threshold for triggering the guidance and replacement requirement that agencies instead consider the direct and indirect effects of all actions; 3. CEQ s clarification on the inclusion of GHG emissions from direct and indirect effects in a NEPA analysis; and 4. CEQ s reduced emphasis on the cost-benefit analysis and social cost of carbon. On March 28, 2017, President Trump signed Executive Order withdrawing this Guidance pending further consideration. Federal Agency Use of Programmatic NEPA Reviews to Make Energy Policy Decisions The concept of using a programmatic NEPA review to make major energy policy decisions is not novel. Such a path has been followed in a number of instances. Clean Coal Technology In 1989, the DOE published the Final Programmatic Environmental Impact Statement, Clean Coal Demonstration Program. The proposed action evaluated in this PEIS Paper 16 13

14 was to continue the Clean Coal Technology Demonstration Program (CCTDP) involving the selection for cost-shared federal funding of one or more clean coal projects proposed by the private sector. The PEIS addressed the potential environmental consequences of the widespread commercialization of the successfully demonstrated clean coal technologies by the private sector in the year ( Energy Planning and Management Program In 1995, The Western Area Power Administration (Western) proposed to establish an Energy Planning and Management Program (the Program) to replace its Guidelines and Acceptance Criteria for the Conservation and Renewable Energy Program and evaluated ways to make future resource commitments to existing customers. The Program required Western's long-term firm customers to implement long-term energy planning to help enhance efficient electric energy use. ( Treatment, Storage, and Disposal of Radioactive and Hazardous Waste In 1997, the DOE prepared the Final Waste Management Programmatic Environmental Impact Statement to evaluate management and siting alternatives for the treatment, storage, and disposal of five types of radioactive and hazardous wastes. The alternatives were evaluated for waste that is stored, buried, or to be generated from future operations over the next 20 years at 54 sites. Paper 16 14

15 ( Civilian Nuclear Energy Research and Development and Isotope Production In 2000, the DOE published the Final Programmatic Environmental Impact Statement for Accomplishing Expanded Civilian Nuclear Energy Research and Development and Isotope Production Missions in the United States, Including the Role of the Fast Flux Test Facility. Under the authority of the Atomic Energy Act of 1954, as amended, the DOE is responsible for ensuring the availability of isotopes for medical, industrial and research applications, meeting the nuclear material needs of other Federal agencies, and undertaking research and development activities related to development of nuclear power for civilian use. The PElS presented an evaluation of the potential environmental impacts associated with the proposed expansion of the nuclear irradiation capabilities for accomplishing civilian nuclear energy research and development activities, accommodating the projected growth in demand for medical and industrial isotopes, and production of plutonium-238 to support future National Aeronautics and Space Administration space exploration missions. ( Sierra Nevada Forest Plan In 2004, the Forest Service prepared a programmatic EIS for the review of the proposed Sierra Nevada Forest Plan. The Sierra Nevada Forest Plan PEIS applied to 11 national forests that stretched from Southern California to the California-Oregon border. It Paper 16 15

16 established a framework for decision-making, using programmatic direction as a gateway for compliance with environmental laws at the project level. ( Mountaintop Mining and Valley Fills In 2005, the EPA issued the Mountaintop Mining/Valley Fills in Appalachia Final Programmatic Environmental Impact Statement to consider developing agency policies, guidance, and coordinated agency decision-making processes to minimize the adverse environmental effects to waters of the United States and to fish and wildlife resources affected by mountaintop mining operations, and to environmental resources that could be affected by the size and location of excess spoil disposal sites in valley fills within the Appalachian study area. The objective was consonant application of the Clean Water Act and the Surface Mining Control and Reclamation Act to improve the regulatory process and effect better environmental protection for mountaintop mining and valley fill operations in steep slope Appalachia. ( Wind Energy Development In 2005, the U.S. Department of Interior and BLM published the Final Programmatic Environmental Statement on Wind Energy Development on BLM-Administered Lands in the Western United States. The objectives of the PEIS were to (1) assess the environmental, social, and economic impacts associated with wind energy development on BLMadministered land, and (2) evaluate a number of alternatives to address the question of whether the proposed action presents the best management approach for the BLM to Paper 16 16

17 adopt, in terms of mitigating potential impacts and facilitating wind energy development. ( Designation of Energy Corridors In 2008, the U.S. Department of Energy and the U.S. Department of the Interior prepared a final Programmatic Environmental Impact Statement on Designation of Energy Corridors on Federal Land in 11 Western States. The PEIS evaluated issues and potential environmental impacts associated with wind energy development within Western s Upper Great Plains Customer Service Region (Iowa, Minnesota, Montana, Nebraska, North Dakota, and South Dakota) and upon the Service s landscape-level grassland and wetland easements. Western would use the EIS to implement a comprehensive regional program to manage interconnection requests for wind energy projects. ( Solar Energy Development In 2012, the U.S. Department of the Interior and the U.S. Bureau of Land Management prepared a final Programmatic Environmental Impact Statement for Solar Energy Development in Six Southwestern States. The proposed action evaluated in this programmatic EIS included the following: establish an initial set of 17 Solar Energy Zones on 285,000 acres across the six southwestern states; protect natural and cultural resources by excluding 78.6 million acres from solar energy development (through creation of Rightof-Way Exclusion Areas ); and establish a framework for mitigation plans to offset anticipated environmental impacts in this region from solar development. ( Paper 16 17

18 Upper Great Plains Wind Energy Development In 2013, the U.S. Department of Energy, federal Western Area Power Administration, the U.S. Department of the Interior and U.S. Fish and Wildlife Service jointly prepared a final Upper Great Plains Wind Energy Programmatic Environmental Impact Statement. Under the Proposed Action, the agencies would designate and incorporate through relevant land use and resource management plans certain federal energy corridors that would consist of existing, locally designated federal energy corridors together with additional, newly designated energy corridors located on federal land. The purpose of analyzing these projects was to establish standardized environmental evaluation procedures and mitigation measures that could be used in subsequent project-specific EISs for particular projects, resulting in more uniform and consistent decision-making at the project level and greater efficiency overall. ( Uranium Leasing In 2014, the U.S. Department of Energy prepared a Final Uranium Leasing Program Programmatic Environmental Impact Statement to analyze the reasonably foreseeable environmental impacts, including the site-specific impacts, of the range of reasonable alternatives for the management of the Uranium Leasing Program (ULP). Under the ULP, the DOE administered tracts of land in western Colorado for exploration, development, and the extraction of uranium and vanadium ores. ( Paper 16 18

19 Renewable Energy Technologies In 2015, the DOE issued Hawaii Clean Energy Final Programmatic Environmental Impact Statement. The final programmatic EIS examined the potential environmental impacts of energy efficiency activities and renewable energy technologies that could assist the State of Hawaii in meeting the goal established under the Hawaii Clean Energy Initiative to meet 70% of the State s energy needs by 2030 through energy efficiency and renewable energy. For the PEIS, DOE and the State of Hawai i grouped 31 clean energy technologies and activities into five categories: (1) Energy Efficiency, (2) Distributed Renewable Energy Technologies, (3) Utility-Scale Renewable Energy Technologies, (4) Alternative Transportation Fuels and Modes, and (5) Electrical Transmission and Distribution. For each activity or technology, the PEIS identifies potential impacts to 17 environmental resource areas and potential best management practices that could be used to minimize or prevent those potential environmental impacts. ( High Energy Crops In 2015, the DOE prepared the Engineered High Energy Crop Programs Final Programmatic Environmental Impact Statement. This Final Programmatic EIS evaluated the potential environmental impacts of implementing one or more programs to catalyze the deployment of engineered high-energy crops (EHECs). A main component of the proposed EHEC programs would be providing financial assistance to evaluate the Paper 16 19

20 performance of EHECs. This PEIS assessed the potential environmental impacts of such confined field trials in the southeastern United States. ( Leasing of Coal Mining Sites on Federal Lands In 2016, the Department of the Interior announced that it would begin a comprehensive review to identify and evaluate potential reforms to the federal coal program; a moratorium on coal leasing from public lands was set in place while the review was conducted. This review would include a Programmatic EIS that would analyze the following issues: how, when, and where to lease; how to account for the environmental and public health impacts of federal coal production; and how to ensure American taxpayers are earning a fair return for the use of their public resources. Two primary purposes of the review were to evaluate the coal program s overall return to taxpayers, and to assess the climate change impacts of coal production on federal lands. ( The status of this Programmatic EIS is uncertain under the Trump administration, as it recently lifted the moratorium on new leases from public land. For further reading:! Delaware Riverkeepers Network v. FERC, 753 F. 3d 1304 (D.C. Cir. 2014) The Court overturned a FERC-issued permit finding that FERC had failed in its EIS to consider the cumulative impacts of three separate components of the same pipeline project.! EarthReports, Inc. v. FERC, 829 F. 3d 949 (D.C. Cir. 2016) The Court ruled that FERC was not required to consider indirect effects of increased liquefied natural gas exports from a FERC-licensed facility because DOE alone had the authority to increase exports. Paper 16 20