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Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. 5-2018 NEWS & ANALYSIS 48 ELR 10423 Environmental impact assessments. The National Envi- ronmental Policy Act (NEPA)84 and its regulations85 require an environmental review of major federal actions that may affect the environment. This review can take the form of an abbreviated environmental assessment, a find- ing of no significant impact (FONSI), a programmatic EIS, or a full-blown EIS that examines the effects in detail of a particular project. This review must include an assess- ment of the indirect and cumulative effects of the project. NEPA may apply to NETs if the operations either use significant federal funding or require certain federal gov- ernmental authorization or participation.86 If so, the per- son proposing a NET project would need to conduct an environmental assessment or EIS review. While the fed- eral Council on Environmental Quality (CEQ) has pre- viously stated that projects with a significant impact on climate change can require an environmental review under NEPA, its assessment largely focused on projects that emit GHGs into the atmosphere.87 CEQ has now withdrawn the guidance,88 but the legal effect of that withdrawal on future judicial interpretations of NEPA’s obligations for cli- mate change assessment is uncertain. It remains unclear whether the removal of significant amounts of GHGs would require a similar assessment,89 although NEPA and CEQ’s implementing regulations also provide for an envi- ronmental review if a project can spark significant public interest or controversy, or if it will involve a novel or prece- dent-setting action.90 84. 42 U.S.C. §§4321 et seq. 85. 40 C.F.R. §§1500 et seq. (2017). 86. While the issuance of permits pursuant to programs delegated to states under the federal CAA or the Resource Conservation and Recovery Act (RCRA) typically have not required an environmental review under NEPA, decisions to grant a federal §404 permit under the CWA can require an environmental impact assessment or other review. See 33 U.S.C. pt. 325, app. B (U.S. Army Corps of Engineers regulations to implement NEPA environmental assessment requirements). 87. Memorandum From Christina Goldfuss, CEQ, to Heads of Federal De- partments and Agencies 18 (Aug. 1, 2016) (Final Guidance for Federal De- partments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews) (discussing mitigation options for GHG emissions). The Trump Administration has ordered the withdrawal of this guidance as well, and it appears unlikely that federal agencies will need to include GHG emissions effects in future environmental assessments to satisfy CEQ regulatory guid- ance or standards. Exec. Order No. 13783, supra note 39, sec. 3(c). Howev- er, judicial decisions have called for such analysis even in the absence of the CEQ guidance. E.g., Center for Biological Diversity v. National Highway Traffic Safety Admin., 538 F.3d 1172, 38 ELR 20214 (9th Cir. 2008). 88. Withdrawal of Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews, 82 Fed. Reg. 16576 (Apr. 5, 2017). 89. See, e.g., Shaun A. Goho, , 36 Wm. & Mary Envtl. L. & Pol’y Rev. 367 (2012) (contending that, despite ap- parently conflicting decisions, federal actions that yield only an environ- mental benefit without any disadvantages should not require preparation of an EIS). 90. CEQ’s regulations that define whether a major federal action “significantly” affects the environment require an agency to consider both the context and intensity of the action. In particular, an action’s “intensity” can include whether the effects are “highly controversial,” “highly uncertain or involve unique or unknown risks,” or the action “may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.” 40 C.F.R. §1508.27(b)(4)-(6) (2017). Alternatively, the responsible federal agency conducting the environmental review may choose from several tools to minimize the delay or disruption that a full EIS may cause for a NET project. Some of these tools could include a cat- egorical exception for certain types of NET facilities that fall within certain parameters or size limits, a program- matic EIS that would prospectively approve most aspects of NET projects that fall within the program, or a FONSI that would remove the need to prepare a full EIS for a par- ticular project or group of NET activities.91 Given concerns raised about blind spots created by prior categorical excep- tions that resulted in reduced environmental scrutiny in other sensitive areas (such as offshore deepfield oil explo- ration and production), this strategy should be used only with caution and careful evaluation. Some states have their own environmental review stat- utes, and these can apply to more activities than the fed- eral NEPA program, or mandate greater investigation or review by the project proponent. For example, New York and California have mini-NEPAs that have significantly broader reach, and each state has acted more aggressively than many federal agencies to require an environmental impact assessment for the climate change impacts of par- ticular projects.92 Even if a federal agency determines that a specific NET project does not require an EIS, a state agency might nonetheless choose to require one for a proj- ect within the state’s jurisdiction.93 . Depending on its precise configuration and process, the broad deploy- ment of NETs may require the acquisition or use of broad swaths of land or coastline. Under one early estimate, for example, some projections of land use by terrestrial DAC could require the dedication of up to 100,000,000 acres of Bureau of Land Management (BLM) territory in the southwestern United States to generate clean solar energy 94 that would power the DAC process. This acreage would equal nearly 42% of all public lands under BLM’s control. If a NET relies on the use of dispersed olivine grains onto land or coastal surfaces, it could also occupy a very large surface area. As a result, early assessments of NET strategies fre- quently raised concerns that this technology would require the acquisition of fee simple title, leasehold, or other type of access permission or authorization to enter and use sur- 95 face properties. The potential dedication of large surface land area to NETs also led to criticisms that they could have unforeseen effects on vulnerable species that relied on 91. CEQ, Report on the National Environmental Policy Act Status and Progress for American Recovery and Reinvestment Act of 2009 Activities and Projects (2009). 92. Michael B. Gerrard, - view, 241 N.Y. L.J. 1-2 (2009), available at http://columbiaclimatelaw.com/ files/2016/06/Gerrard-2009-03-Standards-for-GHG-Impact-Review.pdf. 93. If a federal agency undertakes an environmental assessment and issues a FONSI from the project, some state laws would not require a further ad- ditional state environmental impact assessment. Id. 94. NAS Report, supra note 11, at 75. 95. Id. at 68, 75; Holly Buck, Social Barriers and Social Implications, 139 Climatic Change 155 (2016).PDF Image | NET Legal Pathways
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