On July 15, 2020, the Council on Environmental Quality (CEQ) announced its final rule titled “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act.” On July 16, 2020, New York Department of Environmental Conservation Commissioner Basil Seggos responded with a press release vilifying the changes to the process. This post explains why the Commissioner’s concerns are flatly contradicted by the State’s own actions.
I am a retired electric utility meteorologist with nearly 40-years experience analyzing the effects of meteorology on electric operations and reviewing environmental policies on energy operations. The opinions expressed in this post do not reflect the position of any of my previous employers or any other company I have been associated with, these comments are mine alone.
Statement from NYS DEC Commissioner Basil Seggos on NEPA Rollbacks
First, here is the statement released by Seggos:
It’s no surprise that the President wants to eviscerate the nation’s environmental review law. This has been the most reckless anti-environment, anti-health, and anti-science administration in history. The administration thinks this would be good for the economy but they have it backward. Thorough environmental review actually strengthens local economies and jobs by ensuring the resiliency and durability of our infrastructure. Environmental review also provides important protections for low-income communities and communities of color that have borne the brunt of pollution-the same communities most impacted by the coronavirus and most at risk from climate change.
CEQ NEPA Regulation Revisions
What changed in the rules to draw the ire of Commissioner Seggos? According to the press release, “The modernized regulations will promote more efficient, effective, and timely environmental reviews by all Federal agencies”. The fact sheet states:
For the first time in over 40 years, CEQ has comprehensively updated its National Environmental Policy Act (NEPA) regulations to modernize the Federal environmental review process, which will benefit the environment, economy, and every American. The regulations, which apply to all Federal agencies, have been complex and unnecessarily difficult to understand and navigate. The result has been excessive paperwork, litigation, and delays. Environmental impact statements (EISs) for Federal highway projects have averaged over seven years to complete and some reviews have taken a decade or more.
CEQ’s final rule will modernize the NEPA regulations by simplifying and clarifying the requirements, and incorporating key elements of President Trump’s One Federal Decision policy. The final rule codifies Supreme Court and other case law, updates the regulations to reflect current technologies and agency practices, eliminates obsolete provisions, and improves the format and readability of the regulations. The rule also exempts certain loan guarantee programs from the NEPA process, which will reduce unnecessary burdens on small businesses and family farms. Additionally, the rule will expand public participation and the involvement of tribal governments in the NEPA process. The modernized NEPA regulations will accelerate the environmental review and permitting processes for development of modern, resilient infrastructure, management of our Federal lands and waters, and restoration of our environment.
Accelerated Renewable Energy Growth and Community Benefit Act
In early April 2020, NYS passed the Accelerated Renewable Energy Growth and Community Benefit Act (AREGCBA) as part of the 2020-21 state budget. This legislation is intended to ensure that renewable generation is sited in a timely and cost-effective manner. According to the State’s press release, “New York State public authorities and agencies announced the passage of legislation as part the FY 2020-2021 state budget to dramatically speed up the siting and construction of clean energy projects to combat climate change and help jumpstart the state’s economic recovery from the COVID-19 health crisis”.
In a post describing the AREGCBA, I commented on the legislative finds and statement of purpose of the law. Of particular note, In section 4: “A public policy purpose would be served and the interests of the people of the state would be advanced by: expediting the regulatory review for the siting of major renewable energy facilities and transmission infrastructure necessary to meet the CLCPA targets, in recognition of the importance of these facilities and their ability to lower carbon emissions”. New York has a permitting process in place for electric generating units, Article 10. that requires “environmental and public health impact analyses, studies regarding environmental justice and public safety, and consideration of local laws” but those requirements take time to evaluate and it appears the purpose of this legislation is to over-ride the time needed for those analyses.
Clearly, the only distinction between these two separate actions is what kind of project should get treated differently in the future. The Trump administration wants to “accelerate the environmental review and permitting processes for development of modern, resilient infrastructure, management of our Federal lands and waters, and restoration of our environment”. The Cuomo administration wants to expedite “the regulatory review for the siting of major renewable energy facilities and transmission infrastructure necessary to meet the CLCPA targets”. That choice is a value judgement.
In the summer of 2019 Governor Cuomo and the New York State Legislature passed the Climate Leadership and Community Protection Act (CLCPA) which was described as the most ambitious and comprehensive climate and clean energy legislation in the country when Cuomo signed the legislation. The comprehensive plan to implement the transition to an electric system that does not use any fossil fuels by 2040 has yet to be developed. The massive build-out of solar and wind resources as well as the energy storage needed has not been quantified. Nonetheless, state agencies are preparing environmental impact analyses and the AREGCBA is going to accelerate the siting of renewable energy facilities.
If Commissioner Seggos is truly worried about the environment, health impacts and science as well as protections for low-income communities and communities of color, then he needs to address issues related to the CLCPA build-out. The cumulative life-cycle impacts of New York’s energy transition should be addressed for starters. One recent estimate by Brattle presented at a June 15 NYISO committee meeting indicated that over ten times the existing wind energy capacity of New York might be necessary by 2040. The cumulative environmental impacts of that many wind turbines on birds and bats needs to be addressed. Seggos’ Department of Environmental Conservation (DEC) has been touting a link between peaker power plants and human health but, so far, has ignored potential health impacts of wind turbines.
The DEC has thus far also ignored the sustainability science of renewable energy and energy storage. However, as shown in a recent study, “compared with hydrocarbons, green machines entail, on average, a 10-fold increase in the quantities of materials extracted and processed to produce the same amount of energy”. What are the environmental impacts of the extraction and processing of those materials? More importantly, with regards to “low-income communities and communities of color”, where are those materials going to come from. A recent UN report warns that the raw materials used in electric car batteries, are highly concentrated in a small number of countries. For example, two-thirds of all cobalt production happens in the Democratic Republic of the Congo (DRC). According the UN Children’s Fund, about 20 per cent of cobalt supplied from the DRC comes from artisanal mines, where human rights abuses have been reported, and up to 40,000 children work in extremely dangerous conditions in the mines for meager income.
I believe that a comprehensive cumulative environmental impact analysis of the life-cycle of the renewable energy resources required by the CLCPA is necessary. If Commissioner Seggos were calling for such an analysis, then I would respect his statement on the revised NRPA regulation. However, such is not the case and New York’s current regulatory process clearly shows the hypocrisy of the Cuomo Administration.