NRECA is urging the Supreme Court to clarify the limits of a 54-year-old environmental law that has a huge impact on electric cooperatives seeking federal approval to modernize their systems or deliver broadband to their members.
The high court will hear a case as early as this fall that centers on whether the National Environmental Policy Act requires federal agencies to study environmental impacts over which they have no regulatory authority.
“The NEPA process is broken,” said Louis Finkel, senior vice president of Government Relations at NRECA. “Ever-expanding reviews and litigation are threatening the ability of electric cooperatives to maintain and build infrastructure to ensure affordable and reliable power and meet our nation’s skyrocketing electricity needs.”
The upcoming case, Seven County Infrastructure Coalition v. Eagle County, Colorado, is the first NEPA case the Supreme Court has taken up in 20 years. It concerns a NEPA review conducted by the federal Surface Transportation Board for a new 88-mile rail line in Utah to transport goods, including crude oil.
The D.C. Circuit Court found that the STB did not adequately consider the potential upstream effects of increased oil production and possible far-downstream effects of oil refining, despite the fact that those impacts lie beyond the board’s authority to prevent.
NRECA, in an amicus brief filed Sept. 4 with four other energy and business associations, urged the Supreme Court to clarify that an agency’s ability to analyze environmental impacts under NEPA is restricted to that agency’s actual jurisdiction.
The brief argues that requiring agencies to study environmental effects beyond their authority creates long, costly delays for electric co-ops trying to get federal permits to improve their systems. It also increases the risk of lawsuits, which can drag out construction projects even further, the brief states.
Electric co-ops are often subject to the NEPA review process when they apply for federal permits or seek federal financing to build electric and broadband infrastructure to serve their members, said Viktoria Seale, NRECA regulatory affairs director. Co-ops must obtain permits to do even such routine activities as vegetation management, which is crucial to helping prevent wildfires.
A Supreme Court decision limiting and clarifying the scope of NEPA reviews could have a positive impact on a broad range of electric co-op projects, Seale said.
NRECA filed the brief with the American Petroleum Institute, the National Association of Home Builders of the United States, the National Association of Manufacturers and the National Mining Association.
“Lack of guardrails on NEPA presents one of the most pressing problems for American businesses today,” the amicus brief says.
Erin Kelly is a staff writer for NRECA.