CEQ's Steps to Modernize and Reinvigorate NEPA Includes Reporting on Climate Change Effects of Federal Actions

Posted on February 19, 2010 by Steven Taber

The Council on Environmental Quality, on February 18, 2010, proposed three substantive steps to “modernize and reinvigorate” the National Environmental Policy Act (NEPA). According to Nancy Sutley, the Chair of the White House-based CEQ, these measures “will assist Federal agencies to meet the goals of NEPA, enhance the quality of public involvement in governmental decisions relating to the environment, increase transparency and ease implementation.”

These three steps include when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions; clarifying appropriateness of “Findings of No Significant Impact” and specifying when there is a need to monitor environmental mitigation commitments; and clarifying use of categorical exclusions. The CEQ is requesting public comment on all three of the draft guidances.

The Effects of Climate Change and Greenhouse Gas Emissions Must be Considered in the NEPA Process

Perhaps the most critical element to this modernization of the NEPA process is the CEQ’s draft guidance on when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions. According to the CEQ:

 

The draft guidance explains how Federal agencies should analyze the environmental impacts of greenhouse gas emissions and climate change when they describe the environmental impacts of a proposed action under NEPA.  It provides practical tools for agency reporting, including a presumptive threshold of 25,000 metric tons of carbon dioxide equivalent emissions from the proposed action to trigger a quantitative analysis, and instructs agencies how to assess the effects of climate change on the proposed action and their design.  The draft guidance does not apply to land and resource management actions and does not propose to regulate greenhouse gases. 

While some courts have already held that climate change and greenhouse gas emissions must be considered in the NEPA process. See, “Greenhouse Gases Should Be Considered in All EISs and EAs;” see also, Center for Biological Diversity v. NHTSA, 508 F.3d 522 (9th Cir. 2008), Friends of the Earth, Inc. v. Mosbacher, 488 F.Supp.2d 889 (N.D. Cal. 2007); Border Power Plant Working Group v. Department of Energy, 260 F.Supp.2d 997 (S.D. Cal. 2003); and Mid-States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003). To these courts, these findings indicate that emission of greenhouse gases substantially contribute to climate change, and climate change is expected to result in widespread adverse environmental effects. Therefore, it should be mentioned in the EIS.

What the draft guidance does explain, however, that is not present in the case law are the “practical tools for agency reporting.” That is, it sets a de minimis level of 25,000 metric tons of CO2e before the proposed action would trigger quantitative analysis, which may eliminate many federal projects from the guidance.

The public comment period for this draft Guidance is 90 days. Comments may be submitted electronically from the CEQ’s website: http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/submit?topic=Consideration%20of%20Greenhouse%20Gases. In addition, at the end of the draft Guidance, the CEQ asks several questions that it would like to have addressed by the public:

1. How should NEPA documents regarding long-range energy and resource management programs assess GHG emissions and climate change impacts?

2. What should be included in specific NEPA guidance for projects applicable to the federal land management agencies?

3. What should be included in specific NEPA guidance for land management planning applicable to the federal land management agencies?

4. Should CEQ recommend any particular protocols for assessing land management practices and their effect on carbon release and sequestration?

5. How should uncertainties associated with climate change projections and species and ecosystem responses be addressed in protocols for assessing land management practices?

6. How should NEPA analyses be tailored to address the beneficial effects on GHG emissions of Federal land and resource management actions?

7. Should CEQ provide guidance to agencies on determining whether GHG emissions are “significant” for NEPA purposes. At what level should GHG emissions be considered to have significant cumulative effects. In this context, commenters may wish to consider the Supreme Court decision in Massachusetts v. EPA, 549 U.S. 497, 524 (2007).

Draft Guidance on the Appropriateness of “Findings of No Significant Impact” Tightens Monitoring and Reporting Restrictions

When Finding of No Significant Impact (FONSI) is issued for a Federal action, the need for a detailed Environmental Impact Statement is obviated. Many Federal agencies attempt to mitigate the environmental impact of their actions as part of the NEPA process so that they can reach a FONSI and not be required to draft an EIS. However, in many cases, the follow-up on mitigation activities promised is lacking. Thus, the draft guidance seeks to clarify that although the environmental impacts of a proposed action may be mitigated to the point when the agency make a FONSI determination, the agency must make the mitigation requirements public and perform the necessary monitoring and reporting.

Revised Draft Guidance Clarifying Use of Categorical Exclusions

Many Federal actions do not have significant effects on the environment.  When these actions fall into broad categories of activities, agencies may apply a “categorical exclusion” from further NEPA review.  The CEQ originally released a draft guidance to clarify and promote the use of categorical exclusions on September 17, 2006. 71 Fed.Reg. 54816 (Sept. 17, 2006). This action would revise that draft guidance and clarify the rules for categorical exclusions and ensures that there is a concise public record when agencies apply them.  While CEQ previously has sought public comments on this matter, this guidance provides additional clarifications, so it will seek additional public comment for 45 days.
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January 11, 2010 - Aviation and Airport Development Updates

Posted on January 11, 2010 by Steven Taber

 

January 11, 2010 - A summary review of Aviation and Airport Development related news and information that was made public during the past two weeks.  Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every Wednesday, please send an e-mail to subscribe@calairlaw.com with the word “subscribe” in the subject line.

Climate Deal on Ships and Planes Seen Slipping Away. --- Pete Harrison, Reuters, December 16, 2009
Climate negotiators in Copenhagen said they are a long way from agreeing on emissions caps for shipping and aviation, which jointly produce 8 percent of the world’s climate-warming emissions. The two industries have called for aggressive carbon-cutting goals, but the climate talks were bogged down over technicalities. Negotiators are disagreeing over the most basic of questions, including whether targets should be set in Copenhagen or by the two United Nations bodies that oversee the sectors.
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Port Columbus Will Get $90.5 Million for New Runway. --- Marla Matzer Rose, The Columbus Dispatch, December 17, 2009
The Federal Aviation Administration awarded a $90.5 million grant to Port Columbus in Ohio, to help pay for the construction of a new south runway expected to open in 2013. Passenger numbers were down at both Port Columbus and nationally for 2009, but the Columbus Regional Airport Authority is expecting to see activity levels rebound and grow over time. The airport plans to pay for the rest of the project, estimated at $160 million total, from a $4.50 per person passenger facility charge.
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FAA Reports Receipt of Noise Compatibility Program Update and Request for Review for ModestoCity-CountyAirport. --- Federal Register, December 18, 2009
The Federal Aviation Administration announced that it is reviewing a proposed noise compatibility program update that was submitted for Modesto City-County Airport in Modesto, California. The proposed noise compatibility program update will be approved or disapproved on or before June 6, 2010.
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FAA Could Be Player in Airport Closure Battle. --- Cindy Leise, The Chronicle-Telegram, December 18, 2009
Lorain County commissioners have been debating closing Lorain County Regional Airport in Elyria, Ohio as they meet to approve a 2010 budget. The closure of the airport could result in a lawsuit, however, as the Federal Aviation Administration has given Lorain County millions of dollars over the years and expects the airport to remain open. The county commissioners are exploring options to keep the airport open while discussing closure.
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Transit, Airport Changes Coming January 15. --- Cindy Leise, The Chronicle-Telegram, December 29, 2009
Lorain County commissioners plan to close Lorain County Regional Airport in Elyria, Ohio on January 15, and possibly eliminate some transit routes. Commissioners cut their $500,000 of support for transit and are working to bring in extra federal money, but the county does not yet know how much might be forthcoming and cannot solidify plans at this time. Johnson Aviation Co., which sells fuel at the airport, has retained an attorney to challenge whether the county can eliminate financial support for the airport and close it. There is no word yet from the Federal Aviation Administration as to what action is planned to prevent a closing.
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County, FAA to Face Off OverAirport. ‑-- Kelly Metz, The Morning Journal, January 7, 2010
Lorain County commissioners met with Federal Aviation Administration officials in Chicago, Illinois to discuss the county of Lorain County Regional Airport in Elyria, Ohio. The airport was supposed to be shut down on Dec. 31, but was able to stay open a few weeks past deadline. The commissioners will work with the FAA to determine possible solutions to keep the airport operating, as the FAA took action regarding the closing of the airport since the agency had more than $9.2 million in grants invested.
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County Officials Meet with FAA About Airport, But Legal Battle Likely. --- Brad Dicken, The Chronicle-Telegram, January 8, 2010
The meeting between Lorain County officials and the Federal Aviation Administration was “very good, long, [and] intensive,” but there was no successful outcome and a legal battle is likely. The FAA warned the county that a move to close the airport would result in the agency launching an investigation to try to force the airport to remain in operation. The FAA could also ask a federal judge to issue an order to keep the airport operating, though the county would likely fight such a legal challenge and move forward with its plans to close the airport.
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U.S. Airlines Must Let Passengers Off Stuck Planes. --- John Hughes, Bloomberg, December 21, 2009
Under a new federal rule, U.S. airlines must let passengers off planes that are stuck on airport tarmacs after three hours, as well as provide drinking water and snacks after two hours. Airlines that don’t comply could face fines of up to $27,000 a passenger. Carriers oppose the standard, because they believe it will lead to more canceled flights and greater passenger inconvenience. Though the rule applies only to domestic flights, those flights would be exempt if pilots cite safety or security concerns, or if air-traffic controllers determine that returning a plane to the gate would disrupt airport operations.
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New DOT Consumer Rule Limits Airline Tarmac Delays, Provides Other Passenger Protections. --- Department of Transportation Press Release, December 21, 2009
The new Department of Transportation consumer rule limiting airline delays will significantly strengthen consumer protections. DOT Secretary Ray LaHood said that “airline passengers have rights,” and that the new rules will require airlines to live up to obligations to treat their customers fairly. The rule was adopted in response to the high incidence of flight delays and other consumer problems.
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DOT’s 3-Hour Limit on Tarmac Delay Holds - Does It Help or Will Just Make Things Worse? --- Steven Taber, Aviation & Airport Development Law, December 22, 2009
The Department of Transportation’s new rule governing passengers’ treatment for delayed flights enhances passenger protections, but could make things worse in terms of consumer friendliness. Airlines might cancel flights instead of having them wait, for example, and the rule might actually limit passengers’ legal remedies.
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FAA Reminds Employees to Act With Decorum. --- Associated Press, December 22, 2009
Hidden television news cameras showed Federal Aviation Administration employees partying while they were in Atlanta for a $5 million training program, prompting the FAA to remind its employees to act with decorum. The footage showed some of the employees drinking heavily and going to local bars after the meetings.
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Few Aviation-Related Injuries Involve Commercial Craft, Data Show. --- Nicholas Bakalar, The New York Times, December 21, 2009
Researchers analyzing data from 2000 through 2006, gathering information on crashes, parachuting accidents, and other injuries found that more than 1,000 people are hospitalized for aviation-related injuries, with only one-tenth of them passengers in commercial aircraft. The military services established effective surveillance systems to track aviation injuries, but the sources of information on nonmilitary injuries is not as complete.
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FAA Accepts Luis Munoz Marin Airport In Privatization Program. --- Wall Street Journal, December 23, 2009
The Federal Aviation Administration accepted a preliminary application from Puerto Rican airport officials to enter Luis Munoz Marin International Airport into the agency’s airport-privatization program. Puerto Rico can now begin soliciting bids from private investors who may be interested in operating the airport.
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Airlines Turn to Biofuel.

--- Sarah Nassauer, Grace L. Williams, and Angel Gonzalez,

Wall Street Journal

, December 24, 2009

 

Fifteen major airlines and air-cargo companies are negotiating to buy billions of gallons of fuels made from vegetable oil, coal, and petroleum coke, a petroleum-refining byproduct. The fuel has a smaller carbon footprint than petroleum, and the Federal Aviation Administration recently approved use of this type of fuel in commercial flights when blended equally with traditional jet fuel. However, though these fuels burn more cleanly than traditional jet fuel, there is only a “small reduction” of emissions over the life cycle of the product.


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Court Nixes Defense in FAA Squatting Case. --- Annie Youderian, Courthouse News Service, December 28, 2009
The Court of Federal Claims granted a motion striking one of the government’s defenses in a rental property dispute after the Federal Aviation Administration admitted that it kept operating an aircraft guidance station on leased property in Mississippi after its lease expired.
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D/FW Airport Gets $2.3 Million to Rehab One of Its Main Runways. --- Andrea Ahles, Sky Talk, December 29, 2009
Dallas/Fort Worth International Airport in Texas will receive $2.3 million in federal stimulus dollars for a runway rehab program. Construction on the project is expected to start soon and will include the rehabilitation of concrete slabs and joint repairs on the 13,400-foot runway. The project is one of 360 airport-related projects being given $1.1 billion in funds from the American Recovery and Reinvestment Act.
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AA Mechanics Lobby Congress: Union Officials Say Unsupervised Offshore Airline Maintenance Facilities May Pose Safety Risks. --- D.R. Stewart, Tulsa World, December 16, 2009
U.S. airline mechanics are lobbying Congress to require more oversight of foreign repair stations, citing lax security and the absence of drug and alcohol testing. Many U.S. carriers have tried to cut costs by outsourcing aircraft maintenance to domestic and foreign providers, and the Federal Aviation Administration does not properly supervise the foreign maintenance.
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10,000 Tasks Later, Delta Merger Complete. --- United Press International, December 29, 2009
The Federal Aviation Administration has been reviewing the merger between Delta and Northwest Airlines and a spokeswoman said it is ready for an official stamp of approval. The regulatory review included scrutiny of the merger from the point of view of safety, including operations, training, policies, and paperwork.
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Wind Turbine Rises Up at Major Vermont Airport. --- Nino Marchetti, Earth Techling, December 30, 2009
A 100-foot wind turbine has been installed at Burlington International Airport in Vermont, a first in the United States. In conjunction with a 25kW solar electric system and a solar hot water system, the combined energy products will reportedly offset approximately $14, 600 in energy costs each year and produce enough energy to power over 40 Vermont homes. The wind turbine installation underwent intense scrutiny from the Federal Aviation Administration before it was given the green light.
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FAA and Taxpayers Prop Up Small, Little-Used Airports. --- Thomas Frank, USA Today, December 31, 2009
A USA Today analysis shows that the Federal Aviation Administration has given $240 million to upgrade airports owned by businesses and used exclusively for private airplanes. Most airports that get federal grants are owned by cities or counties, while this money has aided about 50 privately owned airports. The FAA responded that the privately funded airports benefit the public by providing landing areas for private airplanes that would otherwise congest nearby commercial hubs, but is considering more stringent policies.
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O’Hare to Get Body Scanners. --- Mary Wisniewski, Chicago Sun-Times, December 30, 2009
O’Hare Airport in Chicago, Illinois will be getting body-scanning security equipment sometime this year, raising concerns with privacy advocates who worry that the equipment would interfere with passengers’ rights. Billie Vincent, former head of security for the Federal Aviation Administration and Chicago Aviation Commissioner Rosemarie Andolino both said such scanners are overdue and necessary for O’Hare. The technology can reveal plastic or chemical explosives and even non-metallic weapons.
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Airpark Arouses Interest of Lawmakers.
U.S. Senators Ron Wyden and Jeff Merkley and U.S. Representative Kurt Schrader sent a collective letter to the Federal Aviation Administration seeking clarification of a recent FAA memo addressing “Through The Fence” agreements. The memo indicated that the FAA was opposed to such agreements and that public airports not in compliance with TTF rules could forfeit federal funding. The legislators wrote to the FAA to ask what the memo would mean to Independence Airpark and any TTF agreements it currently has with the Oregon Department of Aviation and the FAA.
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FAA Watching American After December Mishaps. --- Eva-Marie Ayala, Star-Telegram, January 1, 2010
The Federal Aviation Administration increased oversight of American Airlines after three mishaps during landings in December, involving jetliners’ wingtips touching the ground during landings and a plane overshooting the runway. The FAA is reviewing those events to determine whether they might be indicative of a larger issue, and there may be additional enforcement actions.
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Flight Crews Have Latitude in Pegging Threatening Behavior. --- Hugo Martin, Los Angeles Times, January 2, 2010
The Transportation Security Administration has given airline crews new discretion to deal with threats on U.S.-bound planes, but flight crews and passengers have often differed over what is acceptable behavior on a plane. Flight crews have the final say, however, because they act on the pilot’s behalf and thereby share the pilot’s authority as to the operation of the aircraft.
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Pilots Warn of Safety Lapses at Regional Airlines. --- Alexandra Andrews, ProPublica, December 30, 2009
Regional airlines usually team up with major airlines to offer cheap costs in exchange for the major airline’s name on its flights, but safety measures can fall along with the price. Bloomberg News found a disconcerting number of safety concerns at regional airlines, and Senator Mark Begich, a member of the aviation subcommittee, said the Federal Aviation Administration has failed to ensure regional airlines are as safe as their major partners.
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Safety Issues Persist as Air Deaths Drop. --- Daniel Michaels, Wall Street Journal, January 5, 2010
Though last year was one of the safest in decades for airline passengers, many of the incidents that did occur highlight basic safety shortcomings. The rate of major accidents dropped sharply over the past decade with most of the improvement accomplished by 2005, and has held roughly steady for the past 5 years. The data show a “mixed picture” because many accidents are now survivable as a result of improvements in airplane design and safety features.
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Crowd Against Passenger Service at Paine Field. --- Lynn Thompson, The Seattle Times, January 4, 2010
Residents of Mukilteo and its surrounding communities in Washington told the Federal Aviation Administration that introducing passenger service at Paine Field would cause significant commercial impacts and turn the pleasant suburbs into a place of “noise, traffic, motels and declining property values.” Some business and economic-development leaders do support the introduction of passenger service, citing quieter planes and stating that adding commercial service would create no significant impact. The Federal Aviation Administration will hold two more hearings to take public comment on the environmental assessment released in December for the proposal.
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Dartmouth Select Board OKs Permit for Two Wind Turbines. --- Curt Brown, The Standard-Times, January 5, 2010
The Select Board in Dartmouth, Massachusetts unanimously approved a permit for 328-foot wind turbines on town-owned land off Chase Road. Voters will be asked to approve financing for the turbines at a special Town Meeting on January 26 for the $9.2 million project. The project will also have to be reviewed by the town’s Conservation Commission, the Department of Environmental Protection, the Federal Aviation Administration, and the Massachusetts Aeronautic Commission. There is a possibility that a group of residents in the Chase Road area will bring legal action against the town to stop the project.
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Dartmouth Wind Turbine Obstructs Airport Traffic, FAA Rules. --- Curt Brown, The Standard-Times, January 8, 2010
The Federal Aviation Administration ruled that one of two proposed wind turbines in Dartmouth, Massachusetts is a hazard to air traffic and must be lowered. The FAA’s review found that the north turbine’s height would have an adverse physical or electromagnetic interference upon air traffic at nearby New Bedford Regional Airport, and recommended lowering the height to 417 feet. A councilman said the town will conduct a site survey and attempt to win FAA approval for a height of 428 feet. Dartmouth’s application for the south turbine is still pending with the FAA.
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Shaffer Mountain Wind Farm Permit Process Ongoing. --- Dan DiPaolo, Daily American, January 4, 2010
Developers of Shaffer Mountain Wind Farm in Pennsylvania are continuing with the state and federal permiting process for the 30-turbine project. A previous permit expired and wind energy developer Gamesa Energy USA is seeking second approval from the Federal Aviation Administration. Opponents of the project believe it would negatively impact the area, and FAA officials found 15 of the 30 turbines were presumed hazards and will need further study of the project.
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Somerset Wind Turbines Seen as Aviation Hazard. --- Don Hopey, Pittsburgh Post-Gazette, January 6, 2010
The Federal Aviation Administration found half of the 30 windmills proposed by Gamesa Energy USA for a wind power project a hazard to aviation, but the project will require further study. The FAA said even a final determination would not stop the development because the agency lacks the federal authority to do so, but the FAA could work with the developer to alter the height and location of the turbines.
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Airpark’s Federal Grant Afloat in Jet Stream of Controversy. --- Andrew Eder, The News Journal, January 5, 2010
Delaware Airpark in Cheswold is one of many small airports across the country that depend on federal money for capital improvements. The airport does not make enough money to cover its expenses but received a $909,806 grant that it is using to build a new 4,200-foot runway. Critics say there needs to be harder scrutiny as to which airports should receive the grants, which are disproportionately given to airports with few or no paying passengers and benefit only a small group of private pilots.
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Midway Airport Privatization Prepares to Take Off Again. --- Paul Merrion, Chicago Business, January 5, 2010
Chicago is close to completing its plans to revive privatization of Midway Airport in Illinois. Flight volume at Midway was up 4% and passenger traffic was up more than 14% in November, compared with the same month in 2008. Talks will likely resume soon with potential investors and operators who previously bid on privatizing Midway last year, but Southwest Airlines is still onboard with the city’s legal and financial team.
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Daley Hints at Privatizing MidwayAirport. --- WLS-TV, January 6, 2010
Chicago, Illinois Mayor Richard Daley hinted that the city may push to privatize Midway Airport once the economy improves. A deal fell apart last spring because of financing issues, but the mayor said it is “very progressive” legislation that cities have done all over the world.
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Bakersfield Airport Shut After Hazardous Material is Found in Checked Bag. --- Dan Weikel, Los Angeles Times, January 5, 2010
Bakersfield Airport in California was shut down and some arriving flights were diverted to nearby Los Angeles International Airport after a hazardous material was found in a checked bag. A hazardous material crew and bomb squad were also called to the airport.
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FAA Issues Final Rule Allowing the Use of Additional Portable Oxygen Concentrator Devices Onboard Aircraft. --- Federal Register, January 6, 2010
The Federal Aviation Administration announced a new final rule that will allow the use of four additional portable oxygen concentrator (POC) devices on board aircraft. When the rule becomes effective there will be 11 different FAA-suitable POC devices acceptable for onboard use. Passengers will be able to carry these devices on board the aircraft and operate them with the approval of the aircraft operator.
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EPA Proposes to Expand Lead Monitoring. --- Aviation News, January 6, 2010The Environmental Protection Agency proposed to expand the lead air quality monitoring network to include sources that emit a half ton or more of lead annually, compared to the current threshold of one ton a year. The proposed changes would expand the existing network by approximately 140 sites, and airports would be treated the same as other sources of lead when determining if source-oriented lead monitoring is needed.
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