1 | US DOE Geothermal Program eere.energy.gov

Public Service of Colorado Ponnequin Wind Farm

Geothermal Technologies Program

Regulatory Roadmap NEPA Historical Perspective

Kermit WitherbeeKate YoungAaron Levine

Geothermal Technologies OfficeOctober 1, 2013

2 | US DOE Geothermal Program eere.energy.gov

NEPA – Historical Perspective

Background• Why NEPA?

Pre NEPA Environmental Legislative History• Resource and Conservation Act of 1960

• Establish a national environmental policy and council of environmental advisors

• Unsuccessful because of opposition by the Eisenhower Administration, federal agencies, and business lobby

• Wilderness Act of 1964• Created definition of “Wilderness” • Applied only to federal lands• Place 9.1 million acres into National Wilderness Preservation System

• Land and Water Conservation Fund Act of 1965• Provides funds and matching grants to federal, state, and local

governments• Acquisition of land and water properties• Easements on land and water

• Funds provided by fees paid to DOI’s Bureau of Ocean Energy Management, sale of federal surplus real estate, and motorboat fuel taxes

Pogo 1970 Earth Day Poster

3 | US DOE Geothermal Program eere.energy.gov

NEPA – Historical Perspective

National Environmental Policy Act of 1969

Legislative History

• Senator Henry “Scoop” Jackson• Chairman of the Senate Interior and Insular Affairs Committee

• Legislative priorities

• Frustration of federal agencies working against each other

• As a result…legislation developed to assure that federal agencies considered the environment and worked in a coordinated fashion

Courtesy of Seattle P-I Collection, MOHAI

4 | US DOE Geothermal Program eere.energy.gov

NEPA – Historical Perspective

• Senate and House Hearings• Senate Committee on Interior and Insular Affairs &

House of Reps Committee on Science and Aeronautics joint hearing 1968 on National environmental policy

• National Environmental Policy Act of 1969

• Signed into Law Jan 1, 1970• Declaration of National Policy• Created the Council on Environmental Quality (CEQ)• Federal agencies obligation

• Provide a detailed statement of environmental impacts (EIS) before proceeding with proposal

• Inform and invite public participation in process

5 | US DOE Geothermal Program eere.energy.gov

NEPA – Historical Perspective

NEPA Provisions

• Title I - Declares the national environmental policy• Section 102

• Federal agencies follow NEPA’s goals• Sets the framework for federal decision making• Federal agencies take a “systematic interdisciplinary

approach” in planning and decisions that may impact the environment

• Section 103• Federal agencies to review existing authorities,

regulations, and policies and procedures to determine whether issues would “prohibit” compliance with NEPA

• Title II – Council on Environmental Quality• Established in the Executive Office of the President• Annual report to Congress an Environmental Quality

Report• Specifies CEQ functions and responsibilities to

support the President on environmental issues for policy making

6 | US DOE Geothermal Program eere.energy.gov

NEPA – Historical Perspective

Implementation of NEPA• CEQ ‘s Role

• Final regulations issued July 30, 1979• Generic, each agency to develop own regulations• 1981 issued guidance “Forty Most Asked Questions

Concerning CEQ’s NEPA Regulations”

• Courts’ Role• Stressed agency compliance with EIS requirements, • Did not address specific compliance related to environmental

policy goals• Supreme Court 1983 – clarified agencies consider every

significant aspect of environmental impact of the proposed action and insure public notification of environmental concerns in decision making process

• Supreme Court 1989 – describes a process does not direct a particular outcome

• Courts – dealt with many other issues, federal action, significant, when required to prepare and EIS, consider indirect impacts

7 | US DOE Geothermal Program eere.energy.gov

NEPA – Historical Perspective

NEPA TodayEffectiveness and delays

• CEQ 1997 Study• Framework for collaboration• Takes too long, costs too much

• CEQ 2002 study• “analysis paralysis”• Litigation

• 2004 DOD, DOI, USFS survey• Changes in project by agency• Litigation• Endangered Species Act compliance

Streamlining NEPA• Legislative streamlining provisions

• Healthy Forest Restoration Act of 2003• Energy Policy Act of 2005

• Designation of a “lead agency”• Dispute resolution process• Establish deadlines• Specific agencies to be excluded from environmental process

• Designation of specific projects as CXs