The Council on Environmental Quality’s interim National Environmental Policy Act guidance on greenhouse gas emissions and climate change “misses the mark” and threatens the ability of the public power utilities and rural electric cooperatives to provide affordable and reliable electricity to the communities they serve, the American Public Power Association and National Rural Electric Cooperative Association said.
APPA and NRECA argued in their April 10 comments in response to the interim guidance issued in March 2023 that the guidance encourages overbroad NEPA reviews “divorced from the statutory limitations and purposes of NEPA.”
“CEQ should reconsider the interim guidance’s approach to indirect effects analyses,” APPA and NRECA said. “Otherwise, CEQ will exacerbate rather than improve the principal problem with NEPA reviews: that they have evolved into overly long, excessively broad paperwork exercises that stifle progress and innovation contrary to NEPA’s balanced objectives.” Requiring consideration of an unlimited universe of indirect effects will cause analyses to further expand, they added.
“Applicants, agencies, and the public will be buried in a mountain of paperwork related to an ever-widening web of attenuated environmental effects that are neither reasonably foreseeable nor have a reasonably close causal relationship to the specific action at issue,” they said.
APPA and NRECA pointed out that NEPA’s overall purpose is to ensure that federal agencies consider “the environmental impact of the proposed action” under consideration.
To make sure that the information reviewed and analyses performed by agencies is relevant and helpful to fulfilling NEPA’s objectives, “effects or impacts” has been interpreted to mean “changes to the human environment from the proposed action or alternatives that are reasonably foreseeable.”
In fact, the Supreme Court has repeatedly emphasized the limiting aspect of the “reasonably foreseeable” standard, they noted.
When the “reasonably foreseeable” requirement is ignored, NEPA analyses produce a voluminous amount of information that neither helps inform the decision maker nor the public, APPA and NRECA said.
“The proliferation of overbroad and unnecessarily long NEPA analyses creates a bottleneck to important electric infrastructure improvements with little environmental benefit. Indeed, from the outset, CEQ has recognized the importance of timely environmental reviews and focused environmental documents.”
APPA and NRECA argued that agencies are producing overly inclusive NEPA documents “to stem the tide of litigation, rather than focused reviews that analyze the significant environmental effects and reasonable alternatives that will actually aid decision-makers.”
However, despite these years-long efforts to produce voluminous NEPA reviews on ever-increasing topics, such as the indirect effects analyses recommended by the interim guidance, the agencies have not successfully reduced the risk or reality of endless and costly litigation.
The setbacks and delays particularly harm electric cooperatives and public power utilities, employees, and the communities they serve, the groups said.
“As non-profit entities, electric cooperatives and public power utilities must directly pass increased costs due to project delays onto consumers at the end of the line,” the public power and cooperative associations said. “Electric infrastructure investment is crucial for economic growth and to improve the quality of life for communities most in need of improved electric reliability and clean energy access. Indeed, the need to upgrade our power infrastructure and to facilitate the expansion of the grid were part of the motivation for the Bipartisan Infrastructure Law and the Inflation Reduction Act.”
At a time when the United States is making the largest investment in clean energy infrastructure ever, the interim guidance “completely misses the mark by expanding rather than focusing NEPA analyses.”
While the interim guidance recites the “reasonably foreseeable” limitation in its discussion of indirect effects, its explanation of the types of effects covered as “indirect effects” would expand NEPA reviews “well beyond what could be considered reasonably foreseeable.”
The interim guidance asserts that upstream and downstream indirect emissions must be considered “reasonably foreseeable since quantifiable connections frequently exist between a proposed activity that involves use or conveyance of a commodity or resource, and changes relating to the production or consumption of that resource.”
But this presumes that any GHG emissions in a chain of commerce are necessarily indirect effects, even of narrow actions committed to agency discretion, they added.
The interim guidance also suffers from “several fundamental flaws that will render any NEPA analyses that rely on it arbitrary, capricious, and contrary to law,” APPA and NRECA argued.
For example, the interim guidance “inappropriately favors renewable energy alternatives over fossil fuel related projects with no statutory basis by instructing agencies to consider renewable energy alternatives to fossil fuel related projects.”
Presumptively requiring consideration of such alternatives is a substantive policy-oriented objective that violates NEPA’s instructions, the groups said.
“While many of the Associations’ members are deploying renewable energy projects, consideration of renewable alternatives is not always a reasonable alternative, including where reliability, geographic, infrastructure, and cost constraints make them simply infeasible.”
APPA and NRECA also said that the interim guidance fails to provide sufficient instruction on when agencies can make findings of no significant impact.
The groups urged CEQ to withdraw the interim guidance and reconsider its terms to address these and other stakeholder’s comments.
“Failure to do so will render NEPA analyses of electric infrastructure projects that are critical to the Association’s members and the communities they serve vulnerable to unreasonable delay and lengthy litigation.”
