NEPA regulations and caselaw

Someone asked about the environmental regs regarding illegal project segmentation under NEPA, concerning a FERC docket. Here is my reply.  


I wouldn't trust anything FERC says. Clearly they are not doing the right thing.

IMO-- All of these pipelines and compressors are connected. There should be *some* agency looking at the cumulative impacts of ALL of them, both regionally and also in terms of climate change. This seems to be in the spirit of what the National Environmental Policy Act (NEPA) demands. A skilled atty could formulate an argument here.

But what really matters is here are the authorities:

* the law itself,
* the regulations (which have the force of law), and
* the caselaw.

I agree with AMG that the DRN case will be controlling, since it is the most recent case -- and was favorable!

Also to check are the NEPA statutes (law), Title 42, chapter 55 of the USC, sec. 4321-4370h.

https://www.law.cornell.edu/uscode/text/42/chapter-55

FERC regs are at 18 CFR Chapter 1, parts 1-391. NEPA stuff is scattered, but the bulk is at Subchapter W, part 380.

https://www.law.cornell.edu/cfr/text/18/chapter-I

Check the regs promulgated by the Council on Environmental Quality, at 40 CFR chapter V (parts 1500 through 1508).

https://www.law.cornell.edu/cfr/text/40/chapter-V

-- or here --

https://ceq.doe.gov/ceq_regulations/regulations.html

May want to also check these quidance docs, e.g., the NEPA Handbook, published jointly by the CEQ and the Whitehouse:

https://whitehouse.gov/administration/eop/ceq/initiatives/nepa/handbooks

As well as these guidance docs:

http://energy.gov/nepa/council-environmental-quality

https://ceq.doe.gov/ceq_regulations/guidance.html

This one seems especially relevant:

http://energy.gov/nepa/downloads/considering-cumulative-effects-under-national-environmental-policy-act

Hope this helps,
BH


> On Sun, Oct 25, 2015 at 9:14 AM, Anne Marie Garti <annemarie@garti.net> wrote:
>>
>> The standards in the Delaware Riverkeeper case will be applied in the DC Cir. Read it carefully.
>>
>> Delaware Riverkeeper Network, et al. v. Federal Energy Regulatory Commission,
>> 753 F.3d 1304, 1307 (D.C. Cir. 2014)

https://www.cadc.uscourts.gov/internet/opinions.nsf/OpinionsByRDate?OpenView&count=100&SKey=201406

Direct link:

https://www.cadc.uscourts.gov/internet/opinions.nsf/30B6F48600A85C1E85257CEF004E34F1/$file/13-1015-1496336.pdf


>>
>> You have to check the case law for the 1st Cir., if that's where you want to file a petition. They might be persuaded to use the DC Circuit's standards.
>> AM



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May you, and all beings
be happy and free from suffering :)
-- ancient Buddhist Prayer (Metta)