United States: NEPA, Energy, And Infrastructure – The Times They Are A Changin'?

For energy and infrastructure project developers, investors, and market participants, the past few weeks introduced increased regulatory uncertainty around the environmental reviews required as part of federal decision-making on matters like permitting and leasing.

As the Executive Branch attempts to curtail these reviews, some in the Judicial Branch are increasingly demanding additional consideration, especially on climate change. For example, the Trump Administration marched forward on implementation of Executive Order 138071 with announcement of new policies limiting the environmental reviews required under the National Environmental Policy Act (NEPA). In contrast, recent decisions from the Tenth and D.C. Circuit Courts of Appeals gave a robust reading to NEPA's requirements and articulated an increasing skepticism about the quality of climate change analysis in NEPA reviews.

All of this comes as Congressional action to marshal significant, new federal funding resources for infrastructure remains stalled. The resulting status quo leaves project developers with greater regulatory uncertainty requiring a heightened awareness of litigation risks when engaged in federal environmental reviews and permitting.

Efforts by the Executive Branch to Streamline Environmental Reviews

On August 31, the Department of the Interior (DOI) issued Secretarial Order 3355,2 imposing limits on the NEPA reviews undertaken by DOI. The Order places time and page limits on the NEPA reviews associated with DOI's most complex decisions (i.e., environmental impact statements, EISs). The Order limits EIS preparation to one year. In addition, the Order places a 150-page limit on most EISs and a 300-page limit for "unusually complex projects." The Order marks a significant change: EIS preparation typically has taken several years and the reviews can run thousands of pages; these limits certainly will curtail the substantive consideration possible by DOI during the NEPA process.

Further, on September 14, the White House announced3 that its Council on Environmental Quality (CEQ) was taking new steps to "enhance and modernize" environmental reviews with a focus on expediting permitting of infrastructure projects. As part of the announcement, CEQ published4 a set of "initial actions" that include: development of a "framework for implementing 'One Federal Decision;"' defining of "high-priority infrastructure projects pursuant to Executive Order 13766"; commencement of a review of "existing CEQ regulations implementing the procedural provisions" of NEPA; commitment to "[i]ssue additional guidance as may be necessary . . . to simplify and accelerate the NEPA process"; and creation of a new "interagency working group to review agency regulations and policies to identify impediments to the efficient and effective processing of environmental reviews and permitting decisions."

Both DOI Order 3355 and the CEQ "initial actions" explicitly responded to direction outlined in Executive Order 13807,5 issued on August 15, 2017. That Executive Order, "Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects," provided overarching direction to the Executive Branch to limit NEPA reviews – with the stated aim of leveraging that curtailment to advance infrastructure development.

In a sense, the actions also indirectly carried forward a theme the Trump Administration articulated in an earlier CEQ action: on April 5, CEQ withdrew the Obama Administration's Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews.6 Consistent with the latest actions, that action, too, sought to limit NEPA reviews, especially with regard to climate change.

Judicial Branch Requires Robust Analysis of Climate Change

On August 22, the D.C. Circuit Court of Appeals decided Sierra Club v. Federal Energy Regulatory Commission.7 In a case involving natural gas pipeline permitting decisions by the Federal Energy Regulatory Commission (FERC) and the associated NEPA reviews, the court encouraged more robust climate change analysis in NEPA reviews. Specifically, it held that FERC's EIS "did not contain enough information on the greenhouse-gas emissions that will result from burning the gas that the pipelines will carry" to be adequate. Although the court did not "hold that quantification of greenhouse-gas emissions is required every time those emissions are an indirect effect of an agency action," it demanded a "satisfactory explanation" where an agency chose to not quantify the greenhouse-gas emissions impact of an action. Furthermore, the court distinguished its decision in this case from a series of three cases involving FERC environmental review of liquefied natural gas (LNG) terminals, noting that "FERC had no legal authority to consider the environmental effects of those exports, and thus no NEPA obligation stemming from those effects."

On September 15, the Tenth Circuit of Appeals decided WildEarth Guardians v. Bureau of Land Management.8 In a case involving coal leasing decisions by DOI's Bureau of Land Management and the associated NEPA reviews, the court required more robust climate change analysis. The court held that the EIS and the subsequent decision by DOI were "arbitrary and capricious" because of deficiencies in the economic analysis DOI used to account for the climate change-related impacts of its decision. In addition, the court rejected the agency's request for "deference on the question" because the agency has previously "acknowledged that climate change is a scientifically verified reality" and "not a scientific frontier." However, this latter point provoked a concurring opinion which questioned the necessity of the court's discussion on climate science and intimated that the science remained unsettled.

Together, the two decisions give a robust reading to NEPA's requirements and articulate an increasing skepticism of the quality of climate change analysis in NEPA reviews. In both, the courts seem to be heading in the opposite direction of the Trump Administration's recent announcements and actions on NEPA reviews. This suggests that courts will be a restraining influence on the Trump Administration's attempts to curtail NEPA reviews on energy and infrastructure projects and other activities.


The contrasting approaches of the Executive and Judicial Branches increase regulatory uncertainty around the environmental reviews required as part of federal decision-making on matters like permitting and leasing. For energy and infrastructure project developers, investors, and market participants, skillfully navigating this uncertainty will become increasingly important to successful permitting and timely projects.


1 https://www.federalregister.gov/documents/2017/08/24/2017-18134/establishing-discipline-and-accountability-in-the-environmental-review-and-permitting-process-for

2 https://elips.doi.gov/elips/0/doc/4581/Page1.aspx (registration required).

3 https://www.whitehouse.gov/sites/whitehouse.gov/files/ceq/CEQ-Fact%20Sheet_FRNotice_9-8-17.pdf

4 https://www.federalregister.gov/documents/2017/09/14/2017-19425/initial-list-of-actions-to-enhance-and-modernize-the-federal-environmental-review-and-authorization

5 https://www.federalregister.gov/documents/2017/08/24/2017-18134/establishing-discipline-and-accountability-in-the-environmental-review-and-permitting-process-for

6 https://www.federalregister.gov/documents/2017/04/05/2017-06770/withdrawal-of-final-guidance-for-federal-departments-and-agencies-on-consideration-of-greenhouse-gas

7 https://www.cadc.uscourts.gov/internet/opinions.nsf/2747D72C97BE12E285258184004D1D5F/$file/16-1329-1689670.pdf

8 https://www.ca10.uscourts.gov/opinions/15/15-8109.pdf

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.