Clean Energy
National Environmental Policy Act - Federal Power Act - Outer Continental Shelf Lands Act
National Environmental Policy Act (NEPA) (42 U.S.C. § 4321 et seq.)
NEPA stands for the National Environmental Policy Act, which is a United States environmental law enacted in 1970. The purpose of NEPA is to promote the enhancement of the environment and to ensure that federal agencies take into account the environmental effects of their proposed actions. NEPA requires federal agencies to evaluate the environmental impact of their proposed actions, such as building a new road or issuing a permit for a new project. The law also requires that federal agencies consider alternatives to the proposed action and involve the public in the decision-making process. NEPA has had a significant impact on environmental policy in the United States and has led to the development of regulations and procedures for evaluating the environmental impacts of federal projects. It is considered a cornerstone of modern environmental law and has influenced environmental policy in other countries around the world.
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The National Environmental Policy Act of 1969 was passed by President Richard Nixon in 1970 to create a federal policy proactive in prevent or mitigate environmental harm to improve quality of life, deepen our understanding of ecological systems and resources, and create a Council on Environmental Quality (Caldwell, 204). Section 4321 of NEPA states the Act’s overarching purpose: to declare a national policy encouraging productive harmony between humans and the environment.
President Nixon enforced NEPA through an Executive Order and gave oversight to the newly formed Council on Environmental Quality (CEQ). CEQ required agencies to prepare Environmental Impact Statements (EISs), with draft versions open to public review—introducing public input into federal project planning. For smaller projects, CEQ created Environmental Assessments (EAs), expanding NEPA’s scope to thousands of actions yearly (Weiner, 22-26).
This act became the most imitated law by many other countries around the world. During a period of industrialization in America, Rachel Carson's 1962 book Silent Spring, which detailed the harmful effects of pesticides, along with the 1969 Santa Barbara oil spill, galvanized the American public to demand environmental protection. Senator Jackson’s S.1075 and Professor Lynton Caldwell were key figures in D.C. who championed a universal framework designed to guarantee policy implementation and prevent its disregard across all agencies. To ensure the effective implementation of NEPA’s policies, Section 102 requires that federal governance and environmental policies be interpreted and applied as expansively as possible, in alignment with the goals of the Act.
It has purposes beyond what it claims: firstly, it’s a framework for guiding public decisions; second, its ideals rely on political leadership for realization, even though the EIS process gives them some legal weight. Third, it takes a broad, encompassing approach, influencing everything from the economy to ethics, unlike narrower environmental laws. Finally, NEPA is forward-looking and meant to have long-term impact and not easily met through quick fixes or technology alone. (Caldwell, 204) NEPA doesn’t mandate outcomes and makes it one of the most transparent and democratic environmental laws.
Works Cited:
Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Com., 449 F.2d 1109, 1131-1129, 1971 U.S. App. LEXIS 8779, *1-58, 146 U.S. App. D.C. 33, 1 ELR 20346, 2 ERC (BNA) 1779, 17 A.L.R. Fed. 1 (D.C. Cir. Ct. of App. July 23, 1971).
Lynton K. Caldwell, "Beyond NEPA: Future Significance of the National Environmental Policy Act," Harvard Environmental Law Review 22, no. 1 (1998): 203-240
https://heinonline-org.ezproxy.cul.columbia.edu/HOL/Page?lname=&handle=hein.journals/helr22&collection=&page=203&collection=journals.Weiner, Kenneth S. "Accountability for Mitigation Through Procedural Review: The NEPA Jurisprudence of Judge Betty B. Fletcher, a Trustee of the Environment and Woman of Substance." Washington Law Review 85, no. 1 (02, 2010): 45-69 http://ezproxy.cul.columbia.edu/login?url=https://www.proquest.com/scholarly-journals/accountability-mitigation-through-procedural/docview/213132132/se-2.
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Link to the case: https://law.justia.com/cases/federal/appellate-courts/F2/449/1109/240994/
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap55-sec4321&collectionCode=USCODE
Please note that the following brief was prepared by a student.
Heading: Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Com., 449 F.2d 1109 (1971)
Parties:
a. Plaintiff: Calvert Cliffs' Coordinating Committee
b. Defendant: United States Atomic Energy Commission
c. Court: United States Court of Appeals for the District of Columbia CircuitProcedural History: The Calvert Cliffs' Coordinating Committee sued the Atomic Energy Commission (AEC), claiming that its new rules for environmental review in nuclear power plant licensing violated the National Environmental Policy Act of 1969 (NEPA). The petitioners argued that the AEC's regulations, outlined in Appendix D, failed to meet NEPA's legal standards for a thorough assessment of environmental impact in decision-making. The United States Court of Appeals for the District of Columbia Circuit ruled in favor of the petitioners and determined that the AEC's rules were inadequate under NEPA. As a result, the court remanded the case back to the AEC with instructions to revise its regulations to fully comply with the environmental review requirements mandated by NEPA.
Facts: The plaintiffs in this action, identified as the Calvert Cliffs' Coordinating Committee, Inc., initiated legal proceedings against the defendant, the United States Atomic Energy Commission (AEC). The case was heard and decided by the United States Court of Appeals for the District of Columbia Circuit. The petitioners brought forth this case to challenge AEC's newly established rules governing the consideration of environmental factors in its nuclear power plant licensing process.
Following the 1970 enactment of the National Environmental Policy Act (NEPA), which mandated federal agencies to consider environmental impacts through a "systematic, interdisciplinary approach" and the preparation of a "detailed statement," the Atomic Energy Commission (AEC) issued new licensing rules formalized as Appendix D. However, these rules became the subject of the case brought by petitioners who argued they failed to meet NEPA's mandate for thorough environmental review in nuclear power plant licensing. The petitioners specifically contested several limitations within the AEC's regulations that they contended undermined NEPA's procedural duties, including the AEC's hearing boards only considering environmental issues if explicitly raised by outside parties, restrictions on raising certain non-radiological concerns in hearings noticed before March 4, 1971, the AEC's policy of deferring to other agencies' environmental certifications without conducting its own independent assessment, and the postponement of comprehensive environmental review until the operating license stage for nuclear facilities that had already received construction permits before NEPA's effective date.
Legal Issue: Did the Atomic Energy Commission's regulations for licensing the construction and operation of nuclear power plants satisfy the statutory obligation under 42 U.S.C.S. § 4321 for federal agencies to assess environmental impacts prior to issuing such licenses?
Holding: No, the Atomic Energy Commission's regulations for licensing the construction and operation of nuclear power plants did not satisfy the statutory obligation under 42 U.S.C.S. § 4321 (part of the National Environmental Policy Act - NEPA) for federal agencies to assess environmental impacts prior to issuing such licenses. Rather, the regulations failed to meet NEPA's requirements for “substantive environmental review” as it relied on other agencies' assessments instead of conducting its own, as well as failed to mandate environmental review for operating permits even after construction permits were issued. The Commission did not comply with NEPA in protecting the environment "to the fullest extent possible."
Reasoning: The court found that the Atomic Energy Commission’s (AEC) regulations did not meet the procedural requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321. The AEC’s rule, which required the hearing board to consider environmental issues only if they were raised by another party, improperly shifted the agency’s own duty under NEPA to address environmental concerns. The AEC’s delay in adopting NEPA procedures was unjustified, as NEPA’s effective date required timely action. The court also held that the AEC could not simply rely on other agencies’ environmental certifications since the NEPA requires the AEC to conduct its own independent, case-by-case analysis that gauges the environmental risks and benefits of any decision. Additionally, delaying environmental review until the operating license stage—especially for projects that had received construction permits before NEPA—created the risk of huge environmental harm. Thus, NEPA demands a thorough consideration of environmental issues at all steps of agency decisions and the AEC’s rules fell short of this obligation.
Dissenting Opinion: None.
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Overview 1
This statute was established as part of the National Environmental Policy Act signed in 1970. 42 USCS § 4332 is a section of the United States Code that is part of the National Environmental Policy Act (NEPA). This section, also known as the "NEPA Section 102," sets forth the basic requirements for federal agencies to prepare environmental impact statements (EIS) for major federal actions that may significantly affect the environment. Specifically, 42 USCS § 4332 requires federal agencies to take a "hard look" at the potential environmental consequences of their proposed actions and to evaluate alternatives to those actions. The section requires federal agencies to prepare an EIS for any major federal action that could have a significant impact on the environment. The EIS must describe the potential environmental impacts of the proposed action, identify alternatives to the proposed action, and assess the environmental effects of each alternative. The purpose of 42 USCS § 4332 is to ensure that federal agencies consider the environmental consequences of their actions and to provide the public with information and opportunities to participate in the decision-making process. This section of the law has been instrumental in shaping environmental policy in the United States and has influenced similar laws and regulations around the world.
The National Environmental Policy Act (NEPA) was signed into law January 1st, 1970 to regulate the proposed actions of federal agencies or projects using federal funds that will have an impact on the environment. This includes decisions on permit applications and actions on federal land. It was established during a period of bipartisanship, and came as a result of growing national concerns for the environment amid rapid industrialization and pollution in the United States leading up to 1970. Thus its passage was major and deemed as the “nation’s environmental Magna Carta.” NEPA is a procedural statute that does not “mandate particular results,” but simply ensures that negative impacts on the environment are heavily considered and consulted on during the decision-making process of a project.
Title 1 of NEPA contains the “Declaration of National Policy” within Title 1, laying out the national environmental policies and purpose, mainly to “encourage harmony” between humans and the environment. § 102(c) of Title 1 outlines the “action-forcing aspects”; the provisions for policies and regulations to be enacted by federal agencies. The procedural requirements of NEPA include: drafting a Categorical Exclusion (CatEx or CEs), an environmental assessment (EA), and either a Finding of No Significant Impact (FONSI) or an environmental impact statement (EIS). CEs specify the categories of actions the agency believes do not have a significant impact on the environment. Actions that fall within these can be approved without an EIS so long as the action does not involve “extraordinary circumstances.” For actions that fall outside the CEs, the federal agency can establish that the action will have no significant projected impacts in the EA, avoiding the EIS and issuing a FONSI. If a proposed action will have significant environmental effects, then a Notice of Intent (NOI) must be published in the Federal Registrar ahead of time to provide an analysis of the proposed action and invite public commentary on environmental issues. Afterward the lead agency drafts an EIS, with further analysis including of the proposed action’s environmental consequences and viable alternatives. After more commentary from the public, the final EIS is issued, followed by a Record of Decision (ROD) after a “wait period.” Title II of NEPA establishes and authorizes the Council on Environmental Quality (CEQ). This executive agency coordinates the implementation of NEPA mainly by working closely with federal agencies through the EIS process. They have published regulations for the preparation of statements, along with guidance documents.
Overview 2
The National Environmental Policy Act (NEPA) of 1970 mandates federal agencies to evaluate and take into account the environmental impacts—including related economic and social impacts—of their actions before decision-making occurs. The Act codifies a commitment to ensuring the environmental, economic, and social “conditions under which man and nature can exist in productive harmony” for current and future generations of Americans at the national level.
§ 4332 (C) requires agencies to prepare Environmental Assessments (EA) and Environmental Impact Statements (EIS) on their proposed actions, and solicit public comments on their decision. This statute applies to a considerably large range of actions that can be undertaken by the federal government, including but not limited to managing federal land, the permitting process for private action, private actions that use significant federal funds, and constructing public facilities such as highways, airports, water infrastructure, and public transportation. This allows for transparency and accountability of the federal government’s actions to the public, as well as scientific evaluations of the environmental impact of its actions.
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Link to the case: https://casetext.com/case/citizens-for-clean-energy-v-us-dept-of-interior-1
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap55-subchapI
Please note that the following brief was prepared by a student.
Parties: Citizens for Clean Energy Nonprofit plaintiff and Department of the Interior defendent Procedural History: Citizens for Clean Energy v. United States DOI, 2022 U.S. Dist. LEXIS 145421 is a case that arose out of a lawsuit filed by several groups, including the Center for Biological Diversity, Citizens for Clean Energy, Defenders of Wildlife, EcoCheyene, Montana Environmental Information Center, Sierra Club, the Northern Cheyenne Tribe, and WildEarth Guardians in 2017. The lawsuit challenged the Secretarial Order 3348 ("Zinke Order") issued by then-Secretary of the Interior Ryan Zinke.
The State of California, State of Washington, State of New York, and the State of New Mexico also filed similar lawsuits challenging the Zinke Order. The cases were consolidated by the Court. In 2019, the Court determined that the Zinke Order constituted a major federal action that required environmental review under the National Environmental Policy Act ("NEPA"), and directed the Bureau of Land Management ("BLM") to conduct a NEPA analysis.
In the present case, the plaintiffs are challenging the NEPA analysis conducted by BLM, claiming that the Department of the Interior, Secretary of the Interior, and BLM (collectively, "Federal Defendants") violated NEPA, the Federal Land Policy and Management Act ("FLPMA"), the Mineral Leasing Act ("MLA"), and the trust responsibility between the federal government and the Northern Cheyenne tribe. The plaintiffs have moved for summary judgment, and the Federal Defendants, Defendant-Intervenors the States of Montana and Wyoming, and Defendant-Intervenor the National Mining Association have filed cross-motions for summary judgment.
Facts: In January 2016, Secretary of the Interior Sally Jewell issued Secretarial Order No. 3338 ("Jewell Order"), which established a moratorium on federal coal leasing with certain exemptions and started the preparation of a new programmatic environmental impact statement ("PEIS"). The goal of the PEIS was to identify and evaluate potential reforms to the federal coal leasing program, which had not been reevaluated in more than 30 years. The moratorium aimed to avoid locking in future development of large quantities of coal on unfavorable financial terms, and was driven by concerns about climate change, fair returns on leases, and market conditions.
However, after a change in the presidential administration in 2017, Secretary of the Interior Ryan Zinke issued the Zinke Order, which reversed the Jewell Order and directed the Bureau of Land Management (BLM) to resume issuing coal leases "expeditiously" with terms of 20 years. In 2019, the court ruled that the Zinke Order qualified as a major federal action that triggered NEPA review.
On May 22, 2019, Federal Defendants released a 35-page Draft EA and announced a 15-day public comment period. BLM released its Final Environmental Assessment ("Final EA") on February 25, 2020. BLM concluded that lifting the coal moratorium would not change the cumulative levels of greenhouse gas emissions resulting from coal leasing, would not result in any direct, indirect, or cumulative effects to socioeconomics, and would not result in direct or indirect effects, or cumulative effects to water resources. BLM then issued a Finding of No Significant Impact ("FONSI") based on that Final EA.
Plaintiffs challenged the adequacy of the Final EA and FONSI, alleging that it violated NEPA, FLPMA, the MLA, and the Federal Government's trust obligation to the Northern Cheyenne Tribe. Secretary of the Interior Deb Haaland issued Secretarial Order No. 3398 ("Haaland Order") on April 16, 2021, revoking the Zinke Order and directing relevant agencies to submit a report with their "plan and timeline to reverse, amend, or update" the policies created to implement the Zinke Order. Plaintiffs agreed to a stay in the proceedings given the Federal
Defendants' progress toward developing a replacement for the challenged coal leasing policy. The Court granted a stay of six months, citing a lack of progress in those efforts.
Issue: Does the Bureau of Land Management, under the direction of the Department of Interior, have to consider all direct, indirect, and cumulative impacts of restarting the federal coal-leasing programs on public lands as proscribed in the National Environmental Policy Act "hard look" [42 USC § 4332] requirement?
Holding: Yes, the Bureau of Land Management must consider in their EIS analysis all direct, indirect, and cumulative impacts of restarting the federal coal-leasing programs on public lands as proscribed in the National Environmental Policy Act "hard look" [42 USC § 4332] requirement.
Reasoning: The court found that BLM's analysis was insufficient, as it did not consider all direct, indirect, and cumulative impacts of restarting the federal coal-leasing program. The court found that BLM failed to take the "hard look" NEPA 42 USC § 4332 requires with respect to restarting the federal coal leasing program, as the environmental analysis did not consider the effect of restarting coal leasing from a forward-looking perspective, including connected actions. BLM should have considered the effect of restarting coal leasing from a baseline that reflected the status quo of the pre-existing moratorium on coal leasing. By limiting the scope of the moratorium and any results that may have come of it, the no-action alternative in BLM's Final EA presumed that the results of the Zinke Order would have come to pass in either alternative. To assume that the outcome of the major federal action is inevitable, rather than considering the pre-existing status quo, violates NEPA. The court found that BLM's decision to limit its NEPA 42 USC § 4332 analysis to merely four leases was insufficient and that comprehensive NEPA review is required where the decision to restart the federal coal-leasing program will have broad environmental effects. BLM's failure to analyze the effect of restarting the federal coal-leasing program proved a "a clear error of judgment" for failure to consider "an important aspect of the problem."
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Link to the case: https://casetext.com/case/desert-protective-council-nonprofit-corp-v-us-dept-of-the-interior
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap55-subchapI
Please note that the following brief was prepared by a student.
Plaintiffs: Desert Protective Council, a California nonprofit corporation. Parke Ewing, in individual, Jim Pelley, an individual, Laborers' International Union of North America Local Union No. 1184, an organized labor union, John Norton, an individual, Hector Casillas, an individual
Defendants: United States Department of the Interior, Margaret Goodro, Field Manager, BLM El Centro Field Office, Teri Raml, District Manager, BLM California Desert District, United States Bureau of Land Management, Ken Salazar, Secretary, U.S. Department of the Interior
Court: United States District Court for the Southern District of California
Procedural History: Plaintiffs filed a complaint against the Defendants alleging violations of the Administrative Procedures Act ("APA"), Federal Land Policy and Management Act ("FLPMA"), National Environmental Policy Act ("NEPA"), and Bald and Golden Eagle Protection Act ("BGEPA"). The plaintiffs filed a motion for a preliminary injunction. This motion was denied.
The plaintiffs filed a motion for summary judgment. The defendants objected to a declaration from Scott Cashen that the plaintiffs submitted. The court struck Scott Cashen's declaration. The court told the plaintiffs to submit a new brief with a new deadline.
The plaintiffs filed a revised brief for their motion for summary judgment. Defendants filed an opposition and cross-motions for summary judgment.
Facts:
1. The project site is located in the California Desert Conservation Area (CDCA), which was established under a long-range plan for the management, use, development, and protection of public land.
2. Defendant Ocotillo applied to construct and operate the wind energy facility on public land within the CDCA in 2009. The Interior Department approved a decision known as the Record of Decision, which allowed Ocotillo to build 112 wind turbine generators on a 10,151-acre area of public land.
3. The plaintiffs seek a court order to prevent the killing of any raptor or owl by the Bureau of Land Management (BLM) for the project.
4. The plaintiffs argue that the baseline for Swainson's hawks used in the Environmental Impact Statement (EIS) for the Ocotillo wind energy facility lacks scientific integrity.
5. The surveys used to determine the baseline included months when the hawks would not be migrating through the project site, leading to an underestimation of numbers. The calculation of the hawks' use rate of the project area masks higher use levels during peak periods excluded in the survey.
6. The BLM conducted three raptor migration reports and numerous other studies on birds, including the Swainson's hawk.
7. The surveys were conducted from March to May, which captures the migratory period for various bird species. The survey encompassed many raptors such as Cooper's hawk, ferruginous hawk, merlin, and northern harrier. The applicant was only required to prepare one raptor migration survey. The species have different migration patterns with alternating peak periods for the Fall and Spring raptor surveys.
Issue: Is a disagreement on methodology among experts regarding the agency's environmental
impact statement sufficient to demonstrate a violation of 42 U.S.C. § 4332(C))?
Holding: No.
Reasoning:
1. Disagreements among experts or in methodologies employed are generally not sufficient to invalidate an environmental assessment.
2. The plaintiffs have failed to demonstrate that the BLM's selection of certain months to conduct raptor migration surveys was arbitrary or capricious.
3. While NEPA requires agencies to ensure the scientific integrity of their environmental impact statements, it is not the court's role to determine the best scientific methodology. The court cannot substitute its judgment for that of the agency. This reasoning is based on the case Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073.
4. NEPA does not set substantive environmental standards or require specific environmental outcomes. As long as the agency engages in a reasonably thorough discussion and considers relevant factors, courts do not require agreement of opinion among agencies.
5. Courts should determine only if the challenged method had a rational basis and considered the relevant factors.
Dissenting opinion: None.
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Link to the case: https://casetext.com/case/ctr-for-biological-diversity-v-bernhardt-10
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap55-subchapI
Please note that the following brief was prepared by a student.
Plaintiff: Center for Biological Diversity et al
Defendant: David Bernardt et al
Court: United States Court of Appeals for the Ninth Circuit
Facts: Hilcorp Alaska, LLC is an energy management company seeking to construct an offshore drilling and production facility to extract oil from under Beaufort Sea, along the coast of Alaska. This facility, referred to as “the Liberty project,” will be the first oil development project completely within federal waters, and be able to recover oil for an estimated fifteen to twenty years. Its projected location lies on land governed by the Outer Continental Shelf Lands Act (OCSLA), which allows the Bureau of Ocean Energy Management (BOEM) to oversee the development of the outer Continental Shelf. This may include the leasing of federal land for oil and gas production. Hilcorp must obtain approval from BOEM to proceed with the Liberty project. Amongst other processes to determine approval, BOEM must draft an environmental impact statement (EIS) complying with NEPA since this project is deemed a “major Federal action.” This draft outlines the environmental consequences of the drilling and oil extraction. It includes a statement of purpose, description of the project, comparisons of the Liberty project to oil extraction alternatives, and a “no action” alternative that explains consequences of not approving the project. BOEM’s Regional Supervisor of Leasing and Plans had approved the Liberty project, but its EIS omitted emission estimates from foreign oil consumption for the analysis of if the project is not undertaken, which resulted in environmental concerns from the public. The Center for Biological Diversity and four other conservation organizations started an action against the agencies, arguing that they failed to comply with NEPA by arbitrarily and capriciously estimating the environmental consequences of the alternatives included in the EIS.
Procedural History: On petition for review of an order of the Bureau of Land Management Interior.
Legal Issue: Is BOEM’s EIS for the Liberty project arbitrary and capricious according to § 4332(C) of NEPA?
Holding: Yes
Reasoning: NEPA requires agencies to evaluate the direct and indirect effects of the proposed action. 40 C.F.R. § 1502.16. But they only need to consider indirect effects that are “reasonably foreseeable,” id. § 1508.8(b), or those that "a person of ordinary prudence would take [] into account in reaching a decision." EarthReports, Inc. v. F.E.R.C., 828 F.3d 949, 955, 424 U.S. App. D.C. 127 (D.C. Cir. 2016). The court affirms that an EIS that does not completely consider the indirect effects of a proposed action violates NEPA. They cite Sierra Club v. Federal Energy Regulatory Comm'n, 867 F.3d 1357, 432 U.S. App. D.C. 326 (D.C. Cir. 2017), where the D.C. circuit held that the Federal Energy Regulatory Commission published an inadequate EIS for a natural gas pipeline project because it did not quantify the indirect greenhouse gas emissions that would result from the burning of the natural gas transported by the pipelines. Id. at 1374. The emissions were an indirect, reasonably foreseeable consequence of the pipeline. The agency should have "either given a quantitative estimate of the downstream greenhouse emissions," or "explained more specifically why it could not have done so."
BOEM acknowledges the omission of foreign oil consumption in two pages of the final EIS. To public comments expressing concern, BOEM responds that "[c]ontext suggests that any change in foreign oil consumption resulting from the pending decision on the Liberty DPP would be very small,” and that if “if BOEM could reliably estimate these marginal differences, such estimates would not change the end results of BOEM's analysis to a meaningful extent." There is no evidence cited for these conclusions nor further elaboration. BOEM additionally references a report explaining that "[e]xcluding the foreign oil and gas markets is reasonable" [**22] because "[o]il consumption in each country is different, and BOEM does not have information related to which countries would consume less oil." But again there is no concrete research cited. The court reiterates that emissions resulting from foreign consumption of oil are reasonably foreseeable indirect effects of the Liberty project, thus estimates are required by NEPA, which BOEM insufficiently provided. Even if BOEM was unable to quantify emissions which is possible in some cases, the court affirms that BOEM should have thoroughly explained why obtaining the estimate was impossible.
The court cites studies like one conducted by the Stockholm Environment Institute to also affirm that there is research describing the greenhouse gas effect of increasing domestic oil supply on foreign consumption and the feasibility of its estimation. BOEM claimed that these studies rely on "simplistic assumptions that [fall] well short of the detailed model that BOEM used to analyze the U.S. energy market," but the justification for this conclusion is unclear. Even if no further explanation was needed, one surely is needed for BOEM’s conclusion that the “no-action” alternative of not drilling will result in more carbon emissions. The court concludes that this statement is implausible and attributes that to the lack of use of expertise, citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983).
BOEM failed to provide a sufficient analysis of the Liberty project’s “no-action” alternative and its indirect effects in its final EIS, which violates NEPA 42 U.S.C. § 4332(C).
Dissenting opinion: None
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Link to the case: https://supreme.justia.com/cases/federal/us/460/766/
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap55-subchapI
Please note that the following brief was prepared by a student.
Heading: Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983)
Parties: The Metropolitan Edison Co. and People Against Nuclear Energy (PANE)
Facts: Metropolitan Edison owns two nuclear power plants on Three-Mile Island in Pennsylvania. While one reactor (TMI-1) was shut down for refueling, the other (TMI-2) had a serious accident, after which the Nuclear Regulatory Commission (NRC) ordered Metro Edison to keep TMI-1 closed until the safety of operations was evaluated. As part of this process, the NRC solicited briefs on safety-related issues from interested parties, one of which was submitted by the People Against Nuclear Energy (PANE) association—a group of local residents—who felt that reopening the plants would result in severe psychological harm to nearby residents and the wellbeing of the community.
Procedural History: When the NRC did not investigate the group’s concerns, PANE filed a petition for review with the U.S. Court of Appeals in the D.C. Circuit. The Court of Appeals ruled that the National Environmental Policy Act (NEPA) mandated the NRC to investigate and take into account the indirect and mental health effects of the plant’s reopening that occurred since the first environmental impact statement was conducted. The case was reviewed by the Supreme Court.
Legal Issue: Does psychological harm need to be considered under 42 U.S.C. § 4332 (C), which requires federal agencies such as the NRC to evaluate the environmental impacts of their decision?
Holding: No, the NRC is not required by 42 U.S.C. § 4332 (C) to take into account PANE’s concerns of psychological or mental health damages when deciding whether to reopen the plant.
Reasoning: Section 102 of NEPA requires the NRC and other federal agencies to evaluate the directly causal, physical environmental impacts of an action, not the indirect impacts, such as the perception of risk of harm and the psychological repercussions of an action. Although NEPA was passed with the goal of ensuring human health and welfare, which includes mental wellbeing, it carries out this mission by way of evaluating and mitigating direct harm to the physical environment. In other words, the relationship between the action (reopening TMI-1) and the impact (psychological damage) is not sufficiently direct or causal. Given that PANE’s concerns are not directly related to the physical impact of the NRC’s decision, their concerns are not subject to review by the agency under NEPA.
Dissent: None, unanimous decision.
The Federal Power Act (FPA) (16 U.S.C. §§ 791 et seq.)
The Federal Power Act (FPA) (16 U.S.C. §§ 791 et seq.) is the primary federal statute governing the transmission and wholesale of electric energy in interstate commerce as well as the regulation of hydroelectric power. The FPA is codified as 16 U.S.C. Chapter 12, Federal Regulation and Development of Power with four Parts: (1) Regulation of the Development of Water Power and Resources (§§791 to 823d); (2) Regulation of Electric Utility Companies Engaged in Interstate Commerce (§§824 to 824w); (3) Licensees and Public Utilities; Procedural and Administrative Provisions (§§825 to 825u); (4) State and Municipal Water Conservation Facilities (§§828 to 828c). Part I (16 U.S.C. §§ 791-823d) establishes the Federal Energy Regulatory Commission (FERC) with authority over the construction, operation, and maintenance of nonfederal hydroelectric power projects. FERC’s decision to license a hydroelectric project must be in the public interest and be “best adapted to a comprehensive plan for improving or developing a waterway” that considers multiple uses of that waterway. This part focuses on issuing licenses for the construction and operation of nonfederal hydropower projects and how to ensure that these projects meet environmental standards and contribute positively to the public welfare. Part II (16 U.S.C. §§ 824-824w) authorizes the FERC to oversee the interstate transmission and wholesale sale of electricity to ensure grid reliability and preventing energy market manipulation, while leaving jurisdiction over intrastate transportation and retail sales in the hands of the states. Part III (16 U.S.C. §§ 825-825u) establishes rules for recordkeeping and proceedings and grants FERC broad enforcement authority to investigate potential violations of the FPA. Additionally, Part IV (16 U.S.C. §§ 828-828(c)) provides exemptions from certain requirements to facilitate the development and construction of water conservation facilities by states and municipalities. The Federal Power Act has been amended many times by Congress to keep up with advancements in technology, shifts in the energy sector, and alterations in federal strategies. As the dynamics of electricity markets progress, such as innovative technologies and energy conservation schemes, Congress might consider if revisions to the FPA are needed to guarantee that the U.S. electricity markets operate both efficiently and reliably.
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It is stated that the transmission and sale of electric energy for distribution to the public carry public interest, necessitating Federal oversight for certain aspects of this business. This oversight is limited to the generation aspects specified in this section (16 USCS §§ 824 and following), particularly concerning electric energy transmitted across state lines and wholesale sales in interstate commerce.
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Link to the case: https://casetext.com/case/hughes-v-talen-energy-mktg-llc
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title16/USCODE-2023-title16-chap12-subchapII
Please note that the following brief was prepared by a student.
Parties: W. KEVIN HUGHES, CHAIRMAN, MARYLAND PUBLIC SERVICE COMMISSION, et al., Petitioners (No. 14-614) v. TALEN ENERGY MARKETING, LLC
Facts: Maryland’s program requiring load servicing entities to enter into a 20-year pricing contract at a rate set by an independent power generator contravened the Federal Power Act’s, division of authority between state and federal regulators where it required the independent power generator to participate in the regional transmission organization's (RTO's) capacity auction, but guaranteed the operator a rate distinct from the clearing price for its interstate sales of capacity to the RTO, thereby setting an interstate wholesale rate.
Legal issue: Whether does the Federal Energy Regulatory Commission (FERC) have exclusive authority to regulate the sale of electric energy at wholesale in interstate commerce?
Holding: Judgment affirmed. Under the Federal Power Act, 16 U.S.C. § 791a and 16 U.S.C. § 824., the Federal Energy Regulatory Commission (FERC) has exclusive authority to regulate the sale of electric energy at wholesale in interstate commerce.
Reasoning: Under the Federal Power Act (FPA), 16 U.S.C.S. § 791a et seq., the Federal Energy Regulatory Commission (FERC) has exclusive authority to regulate the sale of electric energy at wholesale in interstate commerce. 16 U.S.C.S. § 824(b)(1). A wholesale sale is defined as a sale of electric energy to any person for resale. 16 U.S.C.S. § 824(d). The FPA assigns to FERC responsibility for ensuring that all rates and charges made, demanded, or received by any public utility for or in connection with the transmission or sale of electric energy subject to the jurisdiction of the FERC shall be just and reasonable. 16 U.S.C.S. § 824d(a). But the law places beyond FERC’s power, and leaves to the States alone, the regulation of any other sale, most notably, any retail sale, of electricity. The States’ reserved authority includes control over in-state facilities used for the generation of electric energy. 16 U.S.C.S. § 824(b)(1).
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Link to the case: https://supreme.justia.com/cases/federal/us/577/260/
Link to the United States Code: https://www.govinfo.gov/app/details/USCODE-2023-title16/USCODE-2023-title16-chap12-subchapII
Please note that the following brief was prepared by a student.
Petitioner: Federal Energy Regulatory Commission (FERC).
Respondent: Electric Power Supply Association (EPSA), along with other parties, including energy generators and suppliers.
Procedural history: The court found that the Federal Energy Regulatory Commission’s (FERC) Order 745, which regulated demand response in the wholesale energy market, overstepped its legal boundaries and intruded upon the states’ exclusive right to manage the retail market. This decision is based on 16 U.S.C.S. § 824(b)(1) which defines FERC’s jurisdiction. Since demand response is a component of the retail market, the U.S. Court of Appeals for the District of Columbia Circuit vacated Rule 745, claiming FERC did not have the authority to issue it.
Facts: FERC issued Order 745 as an energy conservation scheme, which mandated that wholesale market operators must allow demand response participants (consumers who reduce their electricity use during peak periods) to participate in the energy market. This order required these operators to compensate demand response providers at the same rate as electricity generators to promote grid reliability and prevent price spikes during high demand periods.
FERC’s Order 745 was challenged by EPSA, which argued that FERC overstepped its jurisdiction because the order affected retail electricity markets that were traditionally regulated by the states. The respondents contended that by setting the compensation for demand response bids, FERC did the “functional equivalent” of raising retail rates, which encroaches on state authority. This is because the chance to submit demand response bids in the wholesale market alters how consumers think about their purchases. When deciding to buy electricity at retail prices, consumers who are economically savvy now weigh both the expense of the purchase and the potential loss of a demand response payment. FERC defended its position by stating that although the wholesale market and retail market were inextricably linked, its actions were squarely within its jurisdiction and exclusively regulated the wholesale market, which was necessary to ensure the effective operation of the electricity market and protect against price fluctuations and reliability issues.
Legal issue: Whether the Commission has statutory authority to regulate wholesale market operators’ compensation of demand response bids for energy conservation and grid security?
Holding: Yes, the Commission does have statutory authority to regulate wholesale market operators’ compensation of demand response bids. This authority is derived from the Federal Power Act (FPA), specifically Section 201 of the Act (16 U.S.C. § 824), which grants FERC jurisdiction over the wholesale sale of electricity in interstate commerce. Demand response bids directly impact wholesale rates, which fall under FERC’s regulatory purview, although they may indirectly affect the retail rates. This ruling upheld that FERC’s authority to regulate demand response in wholesale markets and affirmed that such regulation did not overstep into state-regulated retail markets.
Dissent: Justice Scalia, joined by Justice Thomas argues that the FPA explicitly prohibits FERC from regulating demand responses by retail power purchasers, which is traditionally a state jurisdiction. Scalia agrees that FERC can regulate practices affecting wholesale rates but disputes the majority’s view that the “affecting” jurisdiction is limitless. Scalia held that the inquiry should focus on whether the rule regulates wholesale sales rather than whether it regulates retail sales and emphasized that FERC should not regulate transactions outside of wholesale sales. According to Scalia, the FPA’s definition of “wholesale” sales pertains to sales for resale, not consumption by the purchasers. Hence, the demand-response participants, who are consumers rather than resellers, should not fall under FERC’s jurisdiction.
Furthermore, Scalia argues that FERC’s demand-response program effectively alters the retail electricity market by incentivizing reduced consumption, which equates to modifying retail rates, which is an act he deems beyond FERC’s mandate. FERC’s demand-response rule not only unlawfully encroaches on state-regulated retail sales, but its pricing scheme could also be considered arbitrary and capricious. Scalia concludes by strongly dissenting based on his interpretation of the FPA and the limits of FERC’s regulatory power, holding firm that FERC’s regulation on demand-response transactions overreaches into the retail electricity market, which should be left to states.
Rationale: FERC’s jurisdiction over the electric power industry as set forth in Part II of the FPA is limited. Pursuant to Section 201, the FPA grants FERC the authority to regulate “the transmission of electric energy in interstate commerce” and “the sale of electric energy at wholesale in interstate commerce.” 16 U. S. C. §824(b)(1). However, the Federal Power Act also sets limits on FERC’s regulatory jurisdiction by maintaining exclusive state jurisdiction. Specifically, 16 U.S.C. § 824(b)(1) of the Federal Powe Act provides that FERC’s authority over wholesale sales does not extend to “any other sale of electric energy.” This means that FERC may not “regulate either within-state wholesale sales or retail sales of electricity.”
In this case, EPSA argued that FERC overstepped into areas traditionally managed by the states from a historical and purpose-driven perspective. EPSA claimed that FERC intentionally enticed retail customers into the wholesale markets simply because it was unsatisfied with how states were using their clear authority under §824(b) to control retail sales. According to EPSA, FERC disagreed with the states’ preference for maintaining stable pricing, which protected retail prices from the short-term changes in wholesale costs. As EPSA put it, by “forcing retail customers to react to wholesale price signals,” FERC aimed to directly challenge this state-level policy.
In fact, the adoption of demand response was not a power grab by FERC, but rather a market-driven innovation aimed at more efficiently balancing supply and demand in the wholesale electricity market. FERC initially incorporated demand response into wholesale markets to harness benefits such as increased reliability and reduced strain on the grid and electricity providers during peak demand periods. During these times, wholesale markets often experience service interruptions, grid failures, and disproportionate price spikes, which often triggers the use of costly and environmentally damaging peak generators. Demand response mitigates these peak demand issues by compensating consumers for not using electricity at specific time. While this practice leads to fluctuations in wholesale prices and are likely to affect retail prices, it is reasonable because FERC exclusively focuses on the practices that affect wholesale rates. This case’s interpretation of the statute on the federal oversigt over states aligns with the goal of the Federal Power Act because FERC’s regulating demand response is all about improving the wholesale market and prevent grid failures. Prohibiting these programs would undermine the express purposes of the FPA.
Congress itself has encouraged the use of demand response at the wholesale level and recognized its economic, operational, and environmental benefits. Demand response programs, which incentivize consumers to reduce electricity usage during peak periods, can contribute to a more efficient and sustainable electricity grid by reducing the need for additional power generation from fossil fuel sources. This reduction in electricity demand can help lower greenhouse gas emissions as fossil fuel power plants are a major source of carbon dioxide and other pollutants. By encouraging participation in demand response programs through appropriate compensation mechanisms, the ruling can promote the adoption of clean energy technologies in load-serving entities and support the integration of renewable energy sources into the grid. Additionally, reducing electricity consumption during peak periods can help alleviate strain on the grid, reducing the likelihood of power outages and improving overall grid reliability. Besides, from economic perspective, when the cost of inducing consumers to reduce their electricity usage is lower than the cost of increasing power generation, operators can balance electricity supply and demand at a lower cost. Therefore, demand response helps manage the demand side of the electricity market and can be a very cost-effective and environmentally friendly alternative to firing up additional power plants. Disallowing FERC to regulate demand response would be against the objectives of the FPA, which include safeguarding against exorbitant prices and ensuring efficient power transmission.
Since the Federal Power Act was passed in 1935, shifts in technology and market participation have significantly challenged the traditional electricity generation model and the clear jurisdictional boundaries between state and federal oversight established by the Act. These advancements, particularly the integration of wholesale demand response by FERC, have enhanced market efficiency. This case affirms that FERC has the statutory authority to implement wholesale demand response. While practices that have a direct impact on wholesale electricity rates also indirectly affect the retail market, FERC’s regulation on wholesale demand response do not intrude the states’ jurisdiction over retail sales. This case affirmed FERC’s regulation of the wholesale demand response market that could lead to lower wholesale prices, improved reliability, decreased dependence on environmentally harmful peak power plants, reduced greenhouse gas emissions, and better prevention of widespread blackouts, which is in accordance with what the Federal Power Act intends.
Outer Continental Shelf Lands Act (OCSLA)
In the late 1800s, inhabitants of Summerland, California began extracting crude oil and natural gas, soon discovering that the most productive wells were located near the ocean. As energy became an increasingly valuable commodity, oil and gas extraction quickly became profitable and highly competitive. By 1910, oil had emerged as America's primary natural resource, fueling major technological advancements such as the internal combustion engine, steel cable tool drilling, and the first diamond drill in 1919. Throughout the 20th century, demand for oil and gas grew exponentially, leading to new challenges in underwater exploration, drilling site identification, and offshore communication. By 1949, 11 oil fields and 44 exploratory wells were operating in the Gulf of Mexico, despite the lack of clear legal boundaries or regulatory oversight. As the industry continued to expand into the 1950s, oil production became the second-largest source of revenue for the U.S. federal government, after income taxes. In response to the growing need for regulation, Congress enacted the Outer Continental Shelf Lands Act (OCSLA) in 1953. This legislation gave the federal government jurisdiction and ownership of submerged lands located more than three miles offshore from state coastlines.
Under OCSLA, the Secretary of the Interior was granted authority to oversee all oil and gas operations on the Outer Continental Shelf (OCS). The Act authorizes the Secretary to issue leases through a sealed, competitive bidding process to the highest qualified and responsible bidders, and to establish regulations to implement its provisions. Over time, OCSLA has been amended to address evolving energy needs and environmental concerns. A major update came with the Energy Policy Act of 2005, which introduced several key changes: the creation of an oil spill liability fund, revenue-sharing provisions with coastal states, and expanded authority for the Department of the Interior to regulate alternative energy activities—such as offshore wind and other renewable energy projects—on the OCS.
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This section outlines the definition of “outer Continental Shelf”. The Outer Continental Shelf (OCS) refers to all U.S.-controlled submerged lands located beyond state coastal waters, including the seabed and subsoil, within the nation's exclusive economic zone (EEZ). It excludes any areas that Congress has transferred to territorial governments.
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Link to the case:
Link to the United States Code (2023 edition):
Please note that the following brief was prepared by a student.
Heading:
Plaintiff: Alliance to Protect Nantucket Sound
Defendant: Energy Facilities Siting Board
Court: Massachusetts Supreme CourtFacts: In 2005, the Energy Facilities Siting Board (EFSB), acting pursuant to G. L. c. 164, § 69J, approved the petition of Cape Wind Associates, to construct two 115 kilovolt underground and undersea electric transmission lines that would connect Cape Wind's proposed offshore wind-powered energy generating facility to the regional electric power grid. The lines include two cables, each composed of three copper conductors and one fiber optic cable bundled together. They would carry electricity across an approximately 18.4 mile route, running under the seabed through Nantucket Sound and Lewis Bay for 12.5 miles, coming ashore in the town of Yarmouth, and continuing underground for 5.9 miles through Yarmouth to an existing switching station in Barnstable. Massachusetts has control and authority over the coastal waters and submerged tidelands located within three miles of the shoreline, however the federal government has exclusive jurisdiction over submerged lands between coastal states’ three-mile seaward boundaries and the high seas (as defined by the Outer Continental Shelf Lands Act). After Cape Wind obtained a permit from the EFSB to run the necessary transmission lines through Massachusetts tideland, the Alliance to Protect Nantucket Sound Alliance challenged the decision.
Procedural History: In 2007, the Cape Cod Commission denied Cape Wind's proposed development of regional impact (DRI), approval of the DRI by the commission was one of the required “approvals” for the transmission project. Soon thereafter, Cape Wind applied to the siting board pursuant to G. L. c. 164, § 69K (§ 69K), for a “certificate of environmental impact and public interest” that would constitute a “composite” of the “individual permits, approvals or authorizations which would otherwise be necessary for the construction and operation” of the transmission project. After conducting a proceeding, the siting board granted the requested certificate in May, 2009. Two civil cases were filed directly in the SJC for Suffolk County in June 2009, challenging the Energy Facilities Siting Board’s (EFSB) approval of transmission lines for the Cape Wind project. These cases were combined and referred to the full court by Justice Botsford. Because of the legal importance of the issues raised, the Massachusetts Supreme Court took the case on direct appellate review, skipping the Appeals Court.
Legal Issue: Whether the Energy Facilities Siting Board had jurisdiction to deny the transmission lines that are required to operate a wind farm in federal territory (as defined by the Outer Continental Shelf Act 43 U.S.C § 1331(a)).
Holding: The Energy Facilities Siting Board did not have jurisdiction to deny the transmission lines.
Reasoning: The court first maps out the petitioner's argument in order to showcase the faults of their logic. The court explains that Alliance to Protect Nantucket Sound asserted that the siting board had an obligation to assess the in-State impacts of the wind farm project (due to its reliance on § 69K to grant the certificate for construction of the transmission lines). Thus, the plaintiff’s main assertion is that because Cape Wind's transmission lines will connect directly to and service the wind farm, evaluation of the impacts of the wind farm itself was a mandatory part of the siting board's review of the transmission project. However, the court uses the Outer Continental Shelf Lands Act to showcase the flaw in this argument. To set up this line of reasoning, they explain that §69K in particular, states unambiguously that the siting board's regulatory jurisdiction must remain around the “facility” at hand. Meaning, the only disputable facility in the state’s jurisdiction is the transmission lines, not the wind turbines. The court further explains that the physical wind farm is located on federal property, which is an extremely important detail. For example, United States v. Maine, 420 U.S. 515, 522, 524, 95 S. Ct. 1155, 43 L. Ed. 2d 363 (1975) clearly states that “control and disposition [of all lands underlying sea] in the first instance are the business of the Federal Government rather than the States” and “paramount rights to the offshore seabed inhere in the Federal Government as an incident of national sovereignty.”
Furthermore, Ten Taxpayer Citizens Group v. Cape Wind Assocs., LLC, 373 F.3d 183, 196-197 (1st Cir. 2004), cert. denied, 543 U.S. 1121, 125 S. Ct. 1071, 160 L. Ed. 2d 1069 (2005) (Ten Taxpayer) by enacting Outer Continental Shelf Lands Act of 1953 [OCSLA], 43 U.S.C. §§ 1331 et seq., "Congress retained for the federal government the exclusive power to authorize or prohibit specific uses of the seabed beyond three miles from shore"). The Court argues that contrary to the Alliance's claim, Federal power and control over the outer continental shelf “serves to preempt any attempt by the Commonwealth or its agencies to regulate structures or facilities placed in that area” Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457 Mass. 663, 685, 932 N.E.2d 787, 804, 2010 Mass. LEXIS 601, *45 (Mass. August 31, 2010). Citing Ten Taxpayer again, "If adopted and enforced on the outer Continental Shelf, statutes like [c.] 91 . . . which require[s] the approval of state agencies prior to construction, would effectively grant state governments a veto power over the disposition of the national seabed," a result "fundamentally inconsistent with the OSCLA." By utilizing Ten Taxpayer’s strict interpretation of the OSCLA, the court makes it clear that state agencies have no authority to grant or veto construction projects on federal land. Thus, if the board were to deny the construction of the transmission lines, as the petitioners argue they should, they would effectively be denying the creation of the wind farm (as it is a key feature of the project’s development and energy transmission) which is not a facility in their jurisdiction.
To bolster their decision, the court cites numerous cases such as New England Legal Found. v. Massachusetts Port Auth., 883 F.2d 157, 174 (1st Cir. 1989), Leisure Time Cruise Corp. v. Barnstable, 62 F. Supp. 2d 202, 208-209 (D. Mass. 1999), and North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432, 436-438, 416 N.E.2d 934 (1981). These cases all solidify the ruling that regulatory authorities cannot use indirect means to accomplish something they are not legally permitted to do directly. The court held that the Energy Facilities Siting Board properly considered the in-state impacts of the full length of Cape Wind’s transmission lines, even though part of those lines would be located in federal waters. Because these impacts relate directly to the transmission facility—over which the board has jurisdiction—the board fulfilled its responsibilities under the public trust doctrine, particularly since the facility lies within Commonwealth tidelands. The board, through its presiding officer, allowed petitioners to present testimony relevant to the transmission project. Testimony excluded from the record pertain only to the wind farm’s turbines, which fall outside the board’s jurisdiction. The presiding officer did not abuse her discretion or commit legal error by excluding that unrelated evidence.
Dissenting Opinion: Chief Justice Marshall dissented, expressing concern over the scope of the EFSB’s authority, particularly as it related to actions impacting federal waters defined by the Outer Continental Shelf Act. She warned that the Board's expansive interpretation effectively extended state jurisdiction beyond its legal limits and risked undermining federal-state boundaries. Marshall emphasized that G.L. c. 164, § 69K was not intended to authorize permits for facilities located entirely or primarily in federal waters, and allowing such an extension would create significant jurisdictional overreach. She concluded that the Board’s decision exceeded its legal mandate and should have been reversed.
List of References
Frank R. Lindh* and Thomas W. Bone Jr.** (2013). ARTICLE: STATE JURISDICTION OVER DISTRIBUTED GENERATORS. Energy Law Journal, 34, 499. https://advance.lexis.com/api/document?collection=analytical-materials&id=urn:contentItem:5B9F-83G0-00CV-K0NV-00000-00&context=1516831.
The Federal Energy Regulatory Commission (FERC) has defined in an expansive manner its jurisdiction over electricity sales-for-resale, in effect preempting the states from any role, even when such sales occur on distribution circuits for consumption locally. Under the FERC's approach, all such sales are swept under federal law no matter how small the generator or how local the consuming market. This article challenges the FERC's approach by providing a review of first principles, illustrating inconsistencies in the FERC's interpretation, and arguing that the Federal Power Act by its own terms leaves to the individual states their own independent jurisdiction over generators that sell their output on distribution circuits to colocated off-takers. This means the states have complete authority, emanating from their organic police powers, to regulate not only the rates and terms of such sales, but also the terms by which the generators interconnect to the distribution grid. Put another way, the individual states have full inherent authority to adopt mechanisms such as "feed-in tariffs" for distributed generators.
John C. Ruple & Kayla M. Race, ARTICLE: MEASURING THE NEPA LITIGATION BURDEN: A REVIEW OF 1,499 FEDERAL COURT CASES. 50 Envtl. L. 479 , (2020).
This article reviews thirteen years of NEPA litigation data reported by the White House Council on Environmental Quality to investigate how often NEPA decisions are litigated, how they are dealt with in court, and how these court decisions compare to others challenging different federal agency decisions. Fulfilling NEPA requirements is a lengthy process, requiring agencies to take a “hard look” at the environmental consequences of their proposed projects, and provide an analysis of viable alternatives to their proposal. So it is commonly contested that NEPA litigation has been used by environmentalists to delay federal action, although they are not backed by a systematic review of NEPA litigation. The authors conclude that approximately one in 450 NEPA decisions are litigated, supporting how they are not extensively used to slow federal action. The rate of NEPA litigation has decreased over the thirteen years of data analyzed. Moreover, environmental plaintiffs win more cases than other plaintiffs, and they often take on stronger cases rather than weaker ones. Agencies that spend less time on NEPA preparation are more likely to have their decision litigated. The authors provide an overview of the statute and NEPA litigation, as well as critics’ calls for reform including: agencies to improve data management of their NEPA documents (eg. a record of NEPA actions by agency), and also for the CEQ to re-establish its practice on collecting NEPA litigation data.
Sam Kalen, NEPA'S TRAJECTORY: OUR WANING ENVIRONMENTAL CHARTER FROM NIXON TO TRUMP?. 50 ELR 10398, (2020).
This article examines how NEPA has been “assaulted” by the courts, the U.S. Congress, and the executive branch over the years. During times of economic hardship, NEPA has been viewed as a scapegoat, and objectives such as achieving fast renewable energy deployment place pressures to shorten the NEPA process. Notably under the Trump administration, anti-environmental regulatory initiatives were very prominent. The authors review the proposed changes to undermine the power of NEPA over the past half century. They begin with an overview of the optimistic history of NEPA’s establishment, how that was quickly dismantled by the judiciary and Congress–especially heightened under Trump, followed by suggesting reforms to get NEPA back on the path of its original purpose. For instance, having a new unit within the CEQ oversee the preparation of NEPA documents, and for ecological science to be incorporated into national policy.
Kershner, Jim. “NEPA, the National Environmental Policy Act.” History Link, 27 Aug. 2011, https://www.historylink.org/File/9903#:~:text=The%20act%20was%20the%20brainchild,the%20f ull%20Senate%20in%201969.
MAEGAN FAITSCH *, NOTE: "Highest Responsibility and Trust": The National Environmental Policy Act & the Dakota Access Pipeline, 51 Conn. L. Rev. 1043, (August, 2019), available at https://advance.lexis.com/api/document?collection=analytical-materials&id=urn:contentItem:6096-JTN1-JN14-G47K-00000-00&context=1516831.
MAJOR CASES INTERPRETING THE NATIONAL ENVIRONMENTAL POLICY ACT https://ceq.doe.gov/docs/laws-regulations/Major_NEPA_Cases.pdf
“National Environmental Policy Act.” EPA, Environmental Protection Agency, 2016, https://www.epa.gov/nepa/what-national-environmental-policy-act.
United States, Congress, Luther, Linda G. The National Environmental Policy Act: Background and Implementation, Congressional Research Service, 2008.
William H. Penniman *, Paul B. Turner ** (1999). ARTICLE:A JURISDICTIONAL CLASH OVER ELECTRICITY TRANSMISSION: NORTHERN STATES POWER v. FERC. Energy Law Journal, 20, 205. https://advance.lexis.com/api/document?collection=analytical-materials&id=urn:contentItem:3XYF-F0B0-00CV-K0BH-00000-00&context=1516831.
This article addresses the scope of the FERC's jurisdiction over interstate transmission of electricity under the FPA, and whether the Eighth Circuit properly resolved the curtailment jurisdiction conflicts between the FERC and state regulators. It is concluded that the Northern States decision squarely presents the jurisdictional question, but the Eighth Circuit panel's answer to the question is exactly backwards. Moreover, if it survives, the Eighth Circuit's decision poses a serious threat of state interference with interstate transmission of electricity. The resulting balkanization of electric markets would be a major setback both to existing electricity markets and to evolving electric power markets, ultimately undermining, not enhancing, service reliability both for retail and wholesale customers.
EPA, Environmental Protection Agency, www.epa.gov/nepa/what-national-environmental-policy-act.
Summary of NEPA from the Environmental Protection Agency.