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US overhauls NEPA, but energy infrastructure impacts will hinge on election


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Washington — The potential for energy projects to secure quicker permitting and face fewer court challenges as promised by the Trump administration's rewriting of a bedrock US environmental policy may ultimately depend on the outcome of November's presidential election.

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President Donald Trump on July 15 announced a final rule to modify the 50-year-old National Environmental Policy Act, which requires federal agencies to consider environmental impacts of proposed projects like pipelines, highways and other infrastructure.

The final rule sets a two-year limit on environmental impact statements and one-year limit for environmental assessments, along with page limits for each type of review, according to a fact sheet released by the White House's Council on Environmental Quality.

It requires joint scheduling, a single EIS and a single record of decision for reviews involving multiple federal agencies and strengthens the role of the lead agency in overseeing NEPA compliance, CEQ said.

"You may get disapproved," Trump said during a speech at a UPS facility in Atlanta. "I'm all for that, but you're not going to devote a lifetime to a project that doesn't get approved."

"We're going to give every project a clear answer: yes or no."

But getting the final rule through all-but-certain court challenges will only happen if Trump wins reelection, Christi Tezak, managing director of ClearView Energy Partners, said in a recent note.

If Trump loses reelection, a Biden administration could derail the NEPA overhaul by withdrawing it for rewrites, Tezak said.

"Such an outcome would be consistent with the same actions that the Trump administration took upon taking office in 2017," she added.

Separately, Congress could reverse the NEPA reforms through a disapproval resolution if Democrats seize a majority in the Senate and hold control of the House of Representatives.

Pipeline implications

The final rule contains potentially consequential changes for interstate natural gas pipelines reviewed by the Federal Energy Regulatory Commission as well as for oil pipelines, which are sited under state authority, but can require NEPA reviews as part of US Army Corps of Engineers permitting.

It requires agencies to "consider environmental effects that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action."

This measure — and the removal of references to "cumulative impacts" or "indirect" impacts of a project's downstream or upstream greenhouse gas emissions — takes aim at the debate at the Federal Energy Regulatory Commission and in the courts over the scope of climate impacts regulators must consider when permitting projects.

The limit on cumulative impact consideration could make it more difficult to weigh a project's incremental contribution to GHG emissions and could deter an agency from eventually rejecting a project on those grounds.

A July study from ClearView Energy Partners found that NEPA was the most frequent statutory basis for a legal challenge of oil and gas pipelines, with the most frequent argument being an insufficient analysis of the effect of greenhouse gas from a project, both upstream and downstream.

NEPA protections are at the heart of environmental and indigenous groups' ongoing challenge to the Dakota Access Pipeline, which was ordered by a US district judge to shut down by August 5 while the Army Corps conducts a more thorough environmental review. Pipeline builder Energy Transfer secured a temporary stay of that order while an appellate court considers the ruling.

The Atlantic Coast Pipeline faced its own court challenges related to NEPA review before its backers canceled the 1.5 Bcf/d natural gas project earlier this month after spending more than $3 trillion.

In 2018, the Trump administration's approval of a Keystone XL pipeline permit was rejected in a Montana district court for inadequately reviewing the climate impact of the project.