Introduction

On May 1, 2024, the Council on Environmental Quality (“CEQ”) promulgated the Bipartisan Permitting Reform Implementation Rule (“Final Rule”), 89 Fed. Reg. 35,442 (May 1, 2024), which is better known as Phase 2 of the Biden Administration’s revisions to the regulations that implement the National Environmental Policy Act (“NEPA”).

NEPA imposes a procedural requirement

Introduction

On July 31, 2023, the Council on Environmental Quality (“CEQ”) proposed the Bipartisan Permitting Reform Implementation Rule (“Proposed Rule”), 88 Fed. Reg. 49,924 (July 31, 2023), which is better known as Phase 2 of the Biden Administration’s revisions to the regulations that implement the National Environmental Policy Act (“NEPA”).

NEPA imposes a procedural requirement that does not mandate outcomes, only informed decision making. Despite its procedural nature, NEPA is one of the primary mechanisms for project opponents to challenge projects and is the most litigated federal statute. CEQ describes the changes in the Proposed Rule as promoting efficient and effective environmental review while increasing regulatory certainty. Given the history of NEPA litigation, and the significant changes in the Proposed Rule, it is likely that these changes will open new pathways for litigation and require courts to interpret the changes before providing regulatory certainty.

Background Leading to the Proposed Rule

Prior to 2020, the regulations implementing NEPA, 40 C.F.R. §§ 1500-1508, had not been meaningfully updated since 1978. In 2020, CEQ finalized significant changes to the regulations, which were designed to speed up project review and limit agency discretion in considering impacts beyond the immediately proposed project. In 2021 CEQ started a phased process to revise the NEPA regulations. In April 2022, CEQ issued its Phase I Rule, 87 Fed. Reg. 23,453 (April 20, 2022), which restored the 1978 regulations’ provisions on the purpose and need statement, defined “effects of the action,” and restored agency discretion to adopt procedures beyond those contained in the CEQ regulations.Continue Reading Phase 2 NEPA Revisions: Significant Changes Proposed by CEQ in the Proposed Bipartisan Permitting Reform Rule

In one of her last major legal actions before leaving office as California’s Attorney General, Kamala Harris, along with the California Coastal Commission (jointly the “Attorney General”), filed suit against various federal agencies in the United States District Court for the Central District of California, challenging the issuance of the Final Programmatic Environmental Assessment (“PEA”) and Finding of No Significant Impact (“FONSI”) for well stimulation treatments on the Southern California Outer Continental Shelf.  The December 19, 2016 Complaint names the Department of the Interior, the Bureau of Ocean Energy Management, and the Bureau of Safety and Environmental Enforcement (jointly the “Agencies”) as defendants.  The Attorney General’s lawsuit follows similar lawsuits filed by the Environmental Defense Center and Santa Barbara Channelkeeper on November 11, 2016, and a separate suit filed by the Center for Biological Diversity (“CBD”) on November 15, 2016.

The Proposed Action is the approval of well stimulation treatments at 22 production platforms on 43 leases on the Southern California Outer Continental Shelf, which sits off the coast of the southern half of the state.  The Complaint asserts that the Agencies violated the National Environmental Policy Act (“NEPA”) and the Coastal Zone Management Act (“CZMA”) because they issued the FONSI for the Proposed Action without adequate environmental review.  The Agencies “improperly concluded that allowing such activities would result in no significant impacts, in violation of the requirements of [NEPA],” despite the substantial record showing the potential for significant environmental effects.  Complaint, at 3.  Further, the Attorney General alleges that the Agencies violated the CZMA by failing to determine whether the Proposed Action is consistent to the “maximum extent practicable” with the enforceable policies in California’s coastal zone management program.Continue Reading California Sues Federal Government Alleging Inadequate Environmental Review of Offshore Drilling Proposal

In a narrow win for plaintiff Wild Fish Conservancy (“Plaintiff”), the U.S. District Court for the Eastern District of Washington held that the biological opinion (“BiOp”) for the Leavenworth National Fish Hatchery (“Hatchery”) was arbitrary and capricious because the National Marine Fisheries Service (“NMFS”) failed to adequately consider the effects of climate change.

This case concerns a Hatchery located on Icicle Creek about three miles south of Leavenworth, Washington.  The purpose of the Hatchery is to replace spawning habitat impacted by construction of the Grand Coulee Dam, and it is operated by the U.S. Fish and Wildlife Service (“FWS”) and the Bureau of Reclamation (“BOR”).  Icicle Creek is home to two Endangered Species Act (“ESA”) listed species: the Upper Columbia River Chinook salmon and the Upper Columbia River steelhead.Continue Reading Up the Creek Without a Paddle: District Court Holds that Biological Opinion Must Consider Climate Change Impacts

On November 11, 2016, the Environmental Defense Center (“EDC”) and Santa Barbara Channelkeeper jointly filed suit against several federal agencies including the Bureau of Ocean Energy Management and the Bureau of Safety and Environmental Enforcement (jointly “Agencies”) in the U.S. District Court for the Central District of California.  The lawsuit alleges violations of the National Environmental Policy Act (“NEPA”), the Endangered Species Act (“ESA”), and the Administrative Procedure Act (“APA”).  At the heart of their lawsuit, EDC and Santa Barbara Channelkeeper (jointly “EDC”) claim that the Agencies violated NEPA when they issued a Finding of No Significant Impact (“FONSI”) decision approving the Agencies’ Programmatic Environmental Assessment of the Use of Well Stimulation Treatments on the Southern California Outer Continental Shelf (the “PEA”).
Continue Reading Environmental Groups Sue Federal Agencies Again in Unending Legal Battle Over Offshore Oil Development

On September 6, 2016, a federal Judge issued an Order finding that the U.S. Bureau of Land Management (“BLM”) failed to take a “hard look,” as required under the National Environmental Policy Act (“NEPA”), at the potential environmental impacts of hydraulic fracturing in issuing a new Resource Management Plan (“RMP”) for the Bakersfield Field Office.  The Order directed the BLM to conduct a supplemental environmental impact statement (“EIS”) focusing on the potential impacts of fracking.   While the decision will likely affect future leasing under the new RMP, it is not a moratorium on fracking.
Continue Reading BLM Must Take a “Hard Look” at Fracking Impacts

On January 29, 2016, the Bureau of Ocean Energy Management (“BOEM”) and the Bureau of Safety and Environmental Enforcement (“BSEE”), agencies within the federal Department of the Interior (“DOI”), agreed to put a temporary moratorium on issuance of fracking permits in the Pacific Outer Continental Shelf until environmental review is conducted.  The temporary moratorium is the result of a settlement agreement between the DOI and the Center for Biological Diversity (“CBD”).  CBD sued the federal agencies in February 2015, alleging violations of the National Environmental Policy Act (“NEPA”), the Outer Continental Shelf Lands Act, and other federal statutes.  The litigation culminated in this settlement agreement.
Continue Reading No Issuance of Federal Offshore Fracking Permits Until May 2016

The clamor over hydraulic fracturing continued Wednesday as environmental activists filed another lawsuit to limit oil and gas development in California.  The lawsuit, filed by Earthjustice on behalf of the Center for Biological Diversity and Los Padres ForestWatch, challenges a plan to open portions of federal land in California to oil and gas operations.

The groups claim that the Bureau of Land Management (“BLM”) did not consider the environmental impacts of hydraulic fracturing when it approved a Resource Management Plan, which could potentially open a large area of federal land in the state’s most oil-rich regions to leasing.  The plan found that “overall, in California, for industry practice of today, the direct environmental impacts of well stimulation practice appear to be relatively limited.”

In 2013, a federal judge ruled that the BLM violated the National Environmental Policy Act when it issued oil leases in Monterey and Fresno counties without considering the environmental impact of hydraulic fracturing.  This ruling has led to a de facto moratorium on new leasing in California on federal lands.
Continue Reading Yet Another Lawsuit Seeking to Limit California Oil Development

Opposition is heating up against four offshore frac jobs permitted to occur off the Santa Barbara coastline. This year, the Bureau of Safety and Environmental Enforcement (“BSEE”) has permitted DCOR, LLC to utilize fracking technology to stimulate offshore wells. DCOR’s frac jobs, known as “mini-fracs,” were added to and approved under an already existing permit

Last week, the Bureau of Land Management (BLM) issued a notice of intent to prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) to address hydraulic fracturing on federal lands in central California. BLM indicated that the EIS would consider the potential impacts of fracking and other well stimulation techniques associated with oil and gas leases and may result in an amendment to the resource management plan (RMP) for the Hollister Field Office.
Continue Reading BLM Announces an Environmental Assessment to Address Fracking in California

It’s a double header at the California Energy Commission (CEC) today.  The Renewable Energy Action Team – comprised of the CEC, the California Department of Fish and Game, the Bureau of Land Management (BLM), and the U.S. Fish and Wildlife Service (FWS) – is holding two public scoping meetings for the combined environment impact statement/environmental