EPA Maintains Its Focus on Climate Change

We’re all busy and often barely have enough time to focus on the day-to-day crush, set ablaze by the emergency of the day; the latter taking all of our remaining energy and focus. In the process, we can lose sight of the issues we already know, expect, and understand “well enough.” The result is that these “expected” items can slowly change over time, morphing into something quite different without attracting our attention. One of these items—just to put it back on your radar—is EPA’s views on the impacts of climate change on energy projects and how those impacts have to be analyzed under the National Environmental Policy Act.

A good example is EPA’s letter last week [beginning of October 2012] commenting on the Draft EIS for the Placer County Water Authority’s application to FERC to issue it a new 50-year license to operate and maintain its Middle Fork American River hydroelectric project. EPA’s comments were generally expected, but it’s interesting to see the breadth and scope of the climate change analysis EPA is seeking. Among other things, EPA wants to see a discussion of the “potential cumulative effects of climate change on the project area and how this may affect future conditions of the Middle Fork American River, the Rubicon River, and their tributaries.” In this crush of the day, this may sound the same as it has for the last several years, until EPA explains what it means by this. EPA says that this includes:

• Average temperature increases in Spring, with earlier initial and maximum snowmelt and higher water levels;
• Changing precipitation patterns with more rain and less snow in winter, causing winter stream flows to increase;
• Decreased snowpack and altered timing of Spring runoff;
• Larger and more severe storms;
• Warming temperatures and more severe drought with increased risk of warmer stream temperatures negatively affecting aquatic organisms and fish species that thrive in cold water; and
• Changes in the frequency of required drawdowns in advance of high storm events—and similar operational measures.

That’s obviously a fairly detailed list, reaching deep into—and in many cases beyond—the ability of current long-term weather models to predict climactic changes. It also reflects a desire for a detailed analysis of the types of adaptation strategies that many companies have only just begun to contemplate and may not believe are necessary. For those of you who think you will escape a request for this type of analysis from EPA because your project doesn’t involve damming a river, I think the already known and expected may soon pass you by.

The adaptation issues EPA cites relate to the timing and severity of storms, depth of snowpack, and the timing and extent of spring runoff; if EPA is concerned about these issues for hydro projects, it will be concerned about them for energy projects of all types, particularly during the construction phase. (For that matter, this type of analysis could easily be extrapolated into all types of resource extraction and large-scale construction projects.) Interestingly, one would think that parts of certain alternative energy projects—wind, solar, those that rely on a steady stream of biomass—may be even more affected than traditional projects. While these projects may not be receiving this type of scrutiny currently, it’s only a matter of time before EPA’s thinking catches up with them—and us.

—Lowell M. Rothschild is senior counsel in the Washington, D.C., office of Bracewell & Giuliani. This article was originally published on Bracewell & Giuliani’s Energy Legal Blog and is republished by permission.