Areawide EIS still possible on Northwest coal export proposals

Posted: Mar 25, 2013

Written by

Manuel Quinones, E&E
Coal train

The Army Corps of Engineers said yesterday it might still launch a regional or areawide environmental impact statement on the impacts of proposed coal-export shipping terminals in the Pacific Northwest.

For now the agency is doing separate reviews for three of five possible coal terminals in Oregon and Washington.

"We are continuing to review the proposed permits on an individual basis unless and until it is decided an area-wide EIS is warranted," spokeswoman Michael Coffey said in a statement this week.

SNL Financial reported on its website Monday that the corps wouldn't conduct a programmatic EIS (PEIS), quoting acting regulatory chief Jennifer Moyer saying that an areawide EIS (AEIS) is also unlikely because the proposals are in different watersheds.

"A programmatic EIS evaluates a particular program, and, in this case, we don't have a program. We have three separate actions," Moyer told SNL.

She added, "The areawide decision hasn't yet been made, and we don't want to make it until we have all of the scoping input. Usually, areawide or regional assessments are for projects in the same watershed. But we're keeping an open mind."

Echoing Moyer, Coffey said yesterday, "We are not at a point where a final decision on the value and utility of an areawide EIS is required, and there is no timeline for that decision to be made."

Without a firm "no" from the corps, coal-export foes are holding out for a broad review of all the proposed and potential terminal proposals. They want regulators to assess all impacts from mining and train traffic to climate change.

The Bureau of Land Management last year told Oregon Gov. John Kitzhaber (D) that it would not be conducting a broad EIS. And with the corps having such a prominent role in permitting ports, terminal critics are looking to the agency for relief.

"The National Environmental Policy Act is instructive in a situation such as this, calling on federal agencies to consider impacts from past, present and reasonably foreseeable future actions," Sen. Patty Murray (D-Wash.) told the corps last year.

When SNL reported that the corps was unlikely to conduct a PEIS, the U.S. Chamber of Commerce and other terminal supporters cheered.

"This type of all-encompassing project review would have serious unintended consequences that could bring U.S. trade to a grinding halt," said Bill Kovacs, the chamber's senior vice president for regulatory affairs.

Corps spokesman Doug Garman confirmed yesterday that a PEIS is unlikely but also noted that many people may be using the terms interchangeably. That is incorrect.

A broader review of the coal terminal proposals, he said, is still possible.

Areawide or programmatic?

It's understandable why people beyond the corps and the circle of attorneys and project developers who deal with the agency are confused by AEIS and PEIS.

"It's probably not as clear as people would like," said Karen Bennett, a Hunton & Williams LLP attorney and former environmental affairs vice president at the National Mining Association. "Most of the NEPA regulations are not really crystal clear, but there has been a lot of litigation over the years, and the courts have been clear that it is up to the agency to decide."

According to guidelines prepared by the White House Council on Environmental Quality, Garman said, "the preparation of an areawide or overview EIS may be particularly useful when similar actions, viewed with other reasonably foreseeable or proposed agency actions, share common timing or geography."

There's an ongoing PEIS being done by the Department of Energy on its Uranium Leasing Program, which offers government land to mining companies.

The corps' work on the coal terminals is different, Bennett said.

"They are not looking at the environmental effects of any one project. Programmatic doesn't make any sense in this [coal export] case. There's no program or specific policy or plan the corps is implementing underlying the action underlining it."

The corps has an AEIS in the works on phosphate mining operations in central Florida. The review involved a group of projects, geographically clustered and affecting similar resources, waterways and land.

The Council on Environmental Quality has helped lead meetings of various regulatory agencies dealing with the coal terminal proposals, but is not dictating a certain course of action (Greenwire, Oct 5, 2012).

Bennett, who has represented coal interests, sees individual reviews as being environmentally preferable. She asked, "If we go down this road [of broad reviews], would it really generate meaningful information that would be helpful in making decisions?

"This is the goal of the NEPA analysis. Where projects are not geographically close and on different timelines, so much of the information is speculative."

Export foes have no preference over what type of review is done -- as long as the corps assesses larger-scale impacts.

"Bottom line, it's important they not look at each one with blinders on," said Kimberly Larson, spokeswoman for the Power Past Coal coalition, stressing the overlapping effects of the proposed ports.

The terminals also face state scrutiny. Ambre Energy Ltd. asked last week that the Oregon Department of State Lands delay until Sept. 1 making up its mind about the Port of Morrow project along the Columbia River. The agency granted the request.

Last year, RailAmerica Inc. announced it was giving up on plans to build a coal storage and export facility at the Port of Grays Harbor in Washington. More recently, two companies pulled out of another potential project near Coos Bay, Ore. (ClimateWire, March 12).

Other pending projects include the Cherry Point, Wash., Gateway Pacific Terminal and the Millennium Bulk Terminals near Longview, Wash. (Greenwire, June 29, 2012).

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