What does it mean for the *federal government* to increase ITS exploration and development

In the discussion of the topicality violations that were produced in the Dartmouth topicality file, I noted that cases the provide incentives to private actors to develop and/or explore the ocean are arguably not topical because those cases do not increase ITS (the federal government’s) exploration and development.

I recently found another card that says that providing federal support for the initiatives of others constitutes indirect support.

Michelle Portman, et all. 2009, Marine Policy Center, Woods Hole Oceanographic Institution, Woods Hole, MA, Offshore wind energy development in the exclusive economic zone: Legal and policy supports and impediments in Germany and the US, Energy Policy 37 (2009) 3596–3607

Policies and initiatives of various types indirectly influence development and siting of offshore renewable energy facilities. They include such mechanisms as research and development funding, market deregulation and green power purchasing, and marine spatial planning (MSP).

While I think this ‘its’ argument is strong, it does beg the question of what constitutes action by the federal government in the first place.  It is important to note that ‘federal government’ action includes more than action by employees of the federal government and that tax incentive programs and programs subject to extensive federal regulation can be considered federal action.

This is important to note because if this interpretation of what constitutes federal action is defensible (and I think it is), then it really broadens the types of cases that are arguably topical. And since most of the “solvency advocates” in the literature argue for these type of programs rather than direct action by federal government employees, it will be an important Affirmative argument.

When a company takes a tax credit it is a federal project

Kevin Walsh, 2013, Law Clerk for the Superior Court of Connecticut, 2012-2013, Renewable Energy Financial Incentives: Focusing on Federal Tax Credits and the Section 1603 Cash Grant: Barriers to Development, UC Davis Environmental Law Review, http://environs.law.ucdavis.edu/issues/36/2/walsh.pdf
Something that is federal “encompasses not only actions by the federal government, but also actions by nonfederal actors ‘with effects that may be major and which are potentially subject to Federal control and responsibility.’”Further, “the distinguishing feature of ‘federal’ involvement is the ability to influence or control the outcome in material respects.”

Renewable energy developments that take federal tax credits/grants appear to qualify as “federal” projects. Without the federal tax credit/grant, renewable energy projects would not be financially attractive for investors. This would lead to a lack of sufficient funding for renewable energy construction. Therefore, the federal government affects the outcome of renewable energy development through the availability of tax credits/grants. Hence, when the federal government provides a tax credit/grant for a renewable energy project, the project qualifies as a “federal” project.

(Save Barton Creek Ass’n v. Fed. Highway Admin., 950 F.2d 1129, 1134 (5th Cir. 1992)

(discussing what constitutes a “major federal action”, http://www.leagle.com/decision/19922079950F2d1129_11917.xml/SAVE%20BARTON%20CREEK%20ASS%27N%20v.%20FEDERAL%20HIGHWAY%20ADMIN.).

“Its” exploration does not have to be direct federal action, but can include private action under the control of the federal government. We recognize that “major Federal action” can exist when the primary actors are not federal agencies.

Judge William Clark, 1992, Barton Creek Ass’n v. Fed. Highway Admin., 950 F.2d 1129, 1134 (5th Cir. 1992, http://www.leagle.com/decision/19922079950F2d1129_11917.xml/SAVE%20BARTON%20CREEK%20ASS%27N%20v.%20FEDERAL%20HIGHWAY%20ADMIN

The Council on Environmental Quality (“CEQ”) has issued regulations defining “major Federal action.” These regulations are entitled to substantial deference. Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979). The regulations provide that “major Federal action” encompasses not only actions by the federal government, but also actions by nonfederal actors “with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 C.F.R. § 1508.18 (1991) (emphasis added). The district court placed heavy reliance on this regulation in making its determination that the Austin Outer Loop is a “major Federal action.”

Federal action occurs when the federal government influences the outcome of a project

Judge William Clark, 1992, Barton Creek Ass’n v. Fed. Highway Admin., 950 F.2d 1129, 1134 (5th Cir. 1992, http://www.leagle.com/decision/19922079950F2d1129_11917.xml/SAVE%20BARTON%20CREEK%20ASS%27N%20v.%20FEDERAL%20HIGHWAY%20ADMIN

We recognize that “major Federal action” can exist when the primary actors are not federal agencies. Nonetheless, the district court appears to have placed undue reliance on only a portion of the CEQ’s regulation by focusing solely on the “potentially subject” factor, while dismissing with seeming facility the “Federal control and responsibility” factor. “[T]he distinguishing feature of `federal’ involvement is the ability to influence or control the outcome in material respects. The EIS process is supposed to inform the decision-maker. This presupposes [the decision-maker] has judgment to exercise. Cases finding `federal’ action emphasize authority to exercise discretion over outcome.” W. Rodgers, Environmental Law § 7.6, at 763 (1977).

A project subject to federal requirements is a federal project

Kevin Walsh, 2013, Law Clerk for the Superior Court of Connecticut, 2012-2013, Renewable Energy Financial Incentives: Focusing on Federal Tax Credits and the Section 1603 Cash Grant: Barriers to Development, UC Davis Environmental Law Review, http://environs.law.ucdavis.edu/issues/36/2/walsh.pdf

 

If a tax credit/grant is not used, however, then the only way a renewable energy development can be deemed “federal” is if it is subject to federal responsibility or control. Most of the federal regulations for renewable energy relate to renewable energy consumption. These regulations do not apply. For example, the Energy Policy Act of 2005 mandates renewable energy consumption requirements for federal buildings.Energy Policy Act of 2005, Pub. L. No. 109-58, §§ 102, 104, 119 Stat. 594 (2005); see Federal Renewable Production and Consumption Requirements, U.S. DEP’T OF ENERGY, http://www1.eere.energy.gov/femp/technologies/m/renewable_requirements.html (last visited Mar. 4, 2013).

Projects on federal lands are federal

Kevin Walsh, 2013, Law Clerk for the Superior Court of Connecticut, 2012-2013, Renewable Energy Financial Incentives: Focusing on Federal Tax Credits and the Section 1603 Cash Grant: Barriers to Development, UC Davis Environmental Law Review, http://environs.law.ucdavis.edu/issues/36/2/walsh.pdf

Usually, federal permits are needed to construct a renewable energy project.These federal permits are almost always required for large-scale renewable energy projects.Pursuant to the Federal Land Policy and Management Act of 1976, Title I, public lands are subject to federal control.Under Title II of the same Act, the Secretary can “issue regulations necessary to implement the provisions of this Act with respect to the management, use, and protection of the public lands.”Thus, renewable projects on federal land are “federal.”

If a renewable energy project is not on land subject to federal control, not subject to federal permits, and not using a federal tax credit/grant, then the project arguably is not “federal.” Without a federal classification, the project need not comply with NEPA. See Neal McAliley, Federal Environmental Permitting of Renewable Energy Projects, ENVIRONMENT ALLEADER.COM (Aug. 2, 2011), http://www.environmentalleader.com/2011/08/02/ federal-environmental-permitting-of-renewable-energy-projects/.

Federal action occurs when the federal government controls, funding alone is not enough

Judge William Clark, 1992, Barton Creek Ass’n v. Fed. Highway Admin., 950 F.2d 1129, 1134 (5th Cir. 1992, http://www.leagle.com/decision/19922079950F2d1129_11917.xml/SAVE%20BARTON%20CREEK%20ASS%27N%20v.%20FEDERAL%20HIGHWAY%20ADMIN

In an attempt to find the requisite amount of federal involvement necessary to trigger the applicability of NEPA, some courts have echoed the CEQ’s regulations and the suggestions of commentators, and asserted that the touchstone of “major Federal action” constitutes a federal agency’s authority to influence nonfederal activity. “[T]he federal agency must possess actual power to control the nonfederal activity.” Sierra Club v. Hodel, 848 F.2d 1068, 1089 (10th Cir.1988). See, e.g., Atlanta Coalition on the Transp. Crisis, Inc. v. Atlanta Regional Comm’n, 599 F.2d 1333, 1347 (5th Cir.1979) (federal funding assistance for local planning process does not alone constitute “major Federal action” where all decisions are entrusted to the state and local agencies).7 Ultimately, “we do not quarrel with the proposition that federal involvement can in some circumstances be so massive, so pervasive, that `the acts of the state are in reality federal actions.’Atlanta Coalition, 599 F.2d at 1346 (citation omitted).8

The possibility of future federal funding and some federal standards do not make a project federal

Judge William Clark, 1992, Barton Creek Ass’n v. Fed. Highway Admin., 950 F.2d 1129, 1134 (5th Cir. 1992, http://www.leagle.com/decision/19922079950F2d1129_11917.xml/SAVE%20BARTON%20CREEK%20ASS%27N%20v.%20FEDERAL%20HIGHWAY%20ADMIN

Though the district court acknowledged that “[t]he mere prospect of future federal funding is not enough,” it did take specific notice that according to the “Current Status Report” on the Austin Outer Loop, Segments 1, 2, 4, and 5 “are headed for some federal funding.” Furthermore, the court specifically referred to testimony from a TDH engineer that at the estimated cost of the Outer Loop, somewhere between $400 and 800 million, the project is “`not likely’ [to] be funded by the state alone.” Additionally, although the district court recognized that the TDH has not requested any federal aid for any section of the Austin Outer Loop, it found the probability of a request for federal funding “too great” to allow the TDH to construct one portion of the Austin Outer Loop without following federal law. This Court has recognized, however, that “the possibility of federal funding in the future for a project or group of projects does not make that project or projects `major [F]ederal action’ during the planning stage.” Atlanta Coalition, 599 F.2d at 1347 (citations omitted). See also City of Boston v. Volpe, 464 F.2d 254, 258 (1st Cir.1972) (“[T]he adoption of certain federal standards and specifications in the hope of qualifying for federal assistance cannot transform a state or local project into a federal one”).

Early coordination with the feds does not constitute federal action

Judge William Clark, 1992, Barton Creek Ass’n v. Fed. Highway Admin., 950 F.2d 1129, 1134 (5th Cir. 1992, http://www.leagle.com/decision/19922079950F2d1129_11917.xml/SAVE%20BARTON%20CREEK%20ASS%27N%20v.%20FEDERAL%20HIGHWAY%20ADMIN

Since the August 1987 Federal Register segmentation announcement, the Austin Outer Loop has undergone two re-segmentations. In September 1987, TDH approved a re-segmentation of the original Segment 3 into 3A and 3B, and subsequently informed the FHWA of its actions. Expressing concern about the proposed resegmentation, the FHWA continued collaborating with the TDH to make the segments meet the requirements to maintain federal funding eligibility. Ultimately, the TDH concurred with the FHWA’s suggestion to divide the Austin Outer Loop into five segments, each ending at major radial roadways. This proffered segmentation is the current division of the proposed Austin Outer Loop. In essence, the only control FHWA has exercised to date over the Austin Outer Loop is the suggestion of its resegmentation in order for TDH to retain eligibility for federal aid funds. Segment 3 is just one of many state projects that has federal assistance at an exploratory stage and then is completed wholly through state funding.

Upon reviewing the record, particularly the evidence found persuasive by the district court,12 we find that none of the early coordination activities by the state with the federal government constitute the requisite “major Federal action.” The crux of the district court’s opinion was a determination that the Austin Outer Loop is a “`proposal for major [F]ederal action.'” Having made that assessment, it rather cursorily concluded that Segment 3 is an integral part of a federal project, as is MoPac South, since it was planned for construction as part of Segment 3.