Digest of Hydraulic Fracturing Cases

As U.S. coal exports increase and new infrastructure is proposed to improve access to markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review under the National Environmental Policy Act of 1969 (NEPA). This paper considers this issue, examining the requirements of NEPA and its implementing regulations, as well as current practice by Federal agencies

NEPA and Downstream Greenhouse Gas Emissions of U.S. Coal Exports

As U.S. coal exports increase and new infrastructure is proposed to improve access to burgeoning markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review. The National Environmental Policy Act of 1969 (NEPA) sets out an assessment process that applies to many Federal agency actions relating to coal export, including the grant of leases for coal mines, approval for new railway construction and the grant of permits for coal export terminals. Under NEPA, an environmental impact statement (EIS) must be prepared for any major Federal action significantly affecting the quality of the human environment. This includes direct, indirect and cumulative effects. The question of which indirect consequences of an action should be considered, and how far the review extends into upstream or downstream effects, is essentially a question of causation. Where a downstream event, such as the export and end-use of coal, is a reasonably foreseeable consequence of an action or there is a reasonably close causal relationship, then those downstream effects are within the scope of NEPA review. The greatest challenge in evaluating greenhouse gas (GHG) emissions under NEPA is determining when they are likely to have a “significant” impact on the environment. Climate change is a highly complex problem, and the GHGs emitted by any single project are unlikely to have a substantial impact on global atmospheric concentrations of carbon dioxide. Thus, agencies need to consider the cumulative impacts of these projects -- as required by NEPA -- and their relative contribution to climate change

Digest of Hydraulic Fracturing Cases

As U.S. coal exports increase and new infrastructure is proposed to improve access to markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review under the National Environmental Policy Act of 1969 (NEPA). This paper considers this issue, examining the requirements of NEPA and its implementing regulations, as well as current practice by Federal agencies

Hydraulic Fracturing Litigation Digest

This digest of hydraulic fracturing litigation includes cases challenging local regulations on preemption grounds, challenges under federal environmental statutes, and civil suits sounding in tort and contract. A list of cases reported in the press, but for which copies of documents filed with the court could not be obtained, is included in the Appendix to this document

NEPA and Downstream Greenhouse Gas Emissions of U.S. Coal Exports

As U.S. coal exports increase and new infrastructure is proposed to improve access to burgeoning markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review. The National Environmental Policy Act of 1969 (NEPA) sets out an assessment process that applies to many Federal agency actions relating to coal export, including the grant of leases for coal mines, approval for new railway construction and the grant of permits for coal export terminals. Under NEPA, an environmental impact statement (EIS) must be prepared for any major Federal action significantly affecting the quality of the human environment. This includes direct, indirect and cumulative effects. The question of which indirect consequences of an action should be considered, and how far the review extends into upstream or downstream effects, is essentially a question of causation. Where a downstream event, such as the export and end-use of coal, is a reasonably foreseeable consequence of an action or there is a reasonably close causal relationship, then those downstream effects are within the scope of NEPA review. The greatest challenge in evaluating greenhouse gas (GHG) emissions under NEPA is determining when they are likely to have a “significant” impact on the environment. Climate change is a highly complex problem, and the GHGs emitted by any single project are unlikely to have a substantial impact on global atmospheric concentrations of carbon dioxide. Thus, agencies need to consider the cumulative impacts of these projects -- as required by NEPA -- and their relative contribution to climate change

NEPA and Downstream Greenhouse Gas Emissions of U.S. Coal Exports

As U.S. coal exports increase and new infrastructure is proposed to improve access to markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review under the National Environmental Policy Act of 1969 (NEPA). This paper considers this issue, examining the requirements of NEPA and its implementing regulations, as well as current practice by Federal agencies