People's Dossier of FERC Abuses: Illegal NEPA Predetermination
FERC Illegally Predetermines the Level of Its NEPA Reviews
The National Environmental Policy Act (NEPA) dictates that FERC evaluate the environmental impact of a proposed action by first preparing an Environmental Assessment (EA). If significant impacts are found during the preparation of the EA, FERC must then prepare a more comprehensive Environmental Impact Statement (EIS). If, as a result of the EA, it is determined that there will be no significant impact, then FERC issues a Finding of No Significant Impact (FONSI) and the Agency is deemed to have fulfilled its NEPA environmental review obligations.
Rather than enter into the EA process in good faith and with an open mind as to the outcome, an outcome that is informed by the information and data received from the public, agencies, and experts during the EA review process, FERC instead “eyeballs” a project applicant’s initial request and predetermines whether it will only undertake an EA and forego the more comprehensive EIS. Contrary to the mandates of NEPA, the EA is not used by FERC as the vehicle for determining the appropriate level of review. Instead, FERC routinely pre-determines the environmental review process it will use based on its own judgment.
For example, in response to concerns raised by Senator Elizabeth Warren regarding the Atlantic Bridge Project (FERC Docket No. CP16-9), FERC issued a response stating that “The Commission staff will issue an environmental assessment (EA) to meet our responsibilities under the National Environmental Policy Act.” (Attch 1) In other words, FERC clearly stated, prior to its review, that the issuance of an EA would fully meet NEPA requirements.
This kind of advance determination is routine. Notably, and by way of further evidence of this assertion, FERC has never issued an Environmental Assessment that found possible significant impacts, or even unknown impacts, which would then require a full Environmental Impact Statement.
Such truncated environmental review procedures save the industry both time and money, and denies the public an unbiased review of project impacts as required by NEPA.
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