noaa’s role in current energy issues jane c. luxton general counsel national oceanic and...

NOAA’s Role in Current Energy Issues

Jane C. LuxtonGeneral Counsel

National Oceanic and Atmospheric Administration

September 27, 2007

Women Leaders in the Energy Industry

Conference

Women Leaders in the Energy Industry

Conference

NOAA's Role in Current Energy Issues 2

Energy Trends Through 2030


US population projected to increase by 23%

Energy consumption projected to increase by 31%

Increase in energy consumption per capita projected at an annual rate of 0.3%NOTE: The projections were made by the Energy Information

Administration’s Annual Energy Outlook 2007 (AEO2007), and are from the “reference case” in that analysis. The reference case assumes that current energy policies impacting the sector remain unchanged throughout the analysis period. The AEO2007 contains other alternative cases as well. It can be found at http://www.eia.doe.gov/



(cont.)


(cont.)

Rapid growth projected for biofuels and other nonhydroelectric renewables

Sales of alternative vehicle technologies will account for nearly 28% of new light duty vehicle sales

Even so, oil, coal, and natural gas still projected to supply 86% of U.S. energy in 2030

Imports of energy will constitute 32% of total U.S. energy demand


Energy Market Share by Source

Energy Market Share by Source

38.8%

22.6% 22.4%

8.2% 6.8%

0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

Petroleum Coal Natural Gas Nuclear ElectricEnergy

Renewable Energy

NOTE: This information is provided by the Energy Information Administration at http://www.eia.doe.gov\basics\energybasics101.html


Energy Consumption By Sector

Energy Consumption By Sector

28.3%

21.6%

10.6%

39.7%

0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

Transportation Industrial Residential/Commercial Electric Power

NOTE: This information is provided by the Energy Information Administration at http://www.eia.doe.gov\basics\energybasics101.html


NOAA’s MissionNOAA’s Mission

To understand and predict changes in the Earth’s environment and manage coastal and marine resources to meet the Nation’s economic, social and environmental needs

NOAA’s role in energy issues flows from both its environmental portfolio and its responsibilities as part of the Department of Commerce


NOAA’s Programs Affecting

Ocean Energy Development

NOAA’s Programs Affecting

Ocean Energy DevelopmentClimate

Coastal Resource Management

Management of 13 Marine Sanctuaries and one Marine National Monument

Coastal Ocean Science

Response and Restoration (natural resource damage, oil spills)

Ft. McHenry Cleanup

Narragansett Bay Eel Grass Bed Restoration


NOAA’s Programs Affecting Energy (cont.)

NOAA’s Programs Affecting Energy (cont.)

Fisheries Management

Protected Species Conservation and Recovery

Habitat Conservation, Protection, and Restoration

Mapping, Charting, Navigation

Oyster Program Research—Hudson-Raritan Estuary

NMFS Researchers with Tiger Shark

Industrial Crans under Oakland Bridge


NOAA’s Climate Change Program ResponsibilitiesNOAA’s Climate Change Program Responsibilities

Key statute: Global Change Research Act of 1990, 15 U.S.C. §§ 2921-2961 (GCRA).

GCRA’s purpose “is to provide for development and coordination of a comprehensive and integrated United States research program which will assist the Nation and the world to understand, assess, predict, and respond to human-induced and natural processes of global change.” 15 U.S.C.§ 2931(b).

Requires periodic preparation and issuance of (1) a National Global Change Research Plan and (2) a Scientific Assessment. 15 U.S.C. §§ 2934, 2936.


NOAA’s Role in the Climate Change Science Program

(CCSP)

NOAA’s Role in the Climate Change Science Program

(CCSP)NOAA chairs the CCSP, which coordinates the efforts of 13 federal agencies and departments on scientific issues relating to climate change.

CCSP approach is to divide the critical scientific questions into 21 Synthesis and Assessment Products that fit within a framework of five core goals. Each of the 21 reports has a lead agency (NOAA, USGS, DOE, NASA, EPA, USDA, DOT) and contributing agencies.(See www.climatescience.gov/Library/sap/sap-summary.php for details and schedule.)

Peer review and public comment requirements included.

http://www.climatescience.gov/Library/sap/sap-summary.php

http://www.climatescience.gov/Library/sap/sap-summary.php


CCSP Recent Developments

CCSP Recent Developments

November 2006—Center for Biological Diversity, Greenpeace, and Friends of the Earth challenged the CCSP’s failure to meet the requirements of GCRA, particularly deadlines in the Act.

August 2007—Federal District Court in California granted summary judgment for plaintiffs and ordered publication of a revised Research Plan by March 1, 2008, and production of a Scientific Assessment by May 31, 2008. (Center for Biological Diversity v. Brennan, C- 06-7062 SBA, slip op. at 37 (N.D. Ca 8/21/07).

Court upheld organization of the work into 21 reports. (Id. n. 8).


NOAA’s Role in EnergyNOAA’s Role in Energy

NOAA analyzes impacts of proposed energy projects on NOAA trust resources and makes recommendations to licensing agencies.

The Endangered Species Act (ESA), 16 U.S.C. 1531 et seq The Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361 et seq The National Marine Sanctuaries Act (NMSA), 16 U.S.C. 1431 et

seq The Magnuson Stevens Fishery Conservation and Management

Act (MSA), 16 U.S.C. 1801 et seq The Fish and Wildlife Coordination Act (FWCA), 16 U.S.C. 661 et

seq

NOAA administers the Coastal Zone Management Act, a federal-state partnership to manage impacts to coastal zones.

The Coastal Zone Management Act (CZMA), 16 U.S.C. 1451 et seq


NOAA’s Role in Energy(cont.)

NOAA’s Role in Energy(cont.)

For hydropower projects, NOAA is authorized to issue mandatory license conditions to protect anadromous fish.

Federal Power Act (FPA), 16 U.S.C. §§791a, et seq

NOAA has licensing authority for Ocean Thermal Energy Conversion facilities.

Ocean Thermal Energy Conversion Act, 42 U.S.C. §§ 9101 et seq


NOAA’s Trust ResourcesNOAA’s Trust Resources

NOAA’s stewardship responsibilities include:

Marine mammals Endangered and threatened marine species 13 marine sanctuaries and one marine national

monument Sustainable Fisheries Essential fish habitat

Endangered Hawaiian Monk Seal

Humpback Whale

NWHI Marine National Monument

Aquaculture


Among other impacts, NOAA evaluates energy projects for:

Destruction of fish and fish larvae (e.g., in water intake mechanisms)

Increased ship strikes of endangered and threatened marine mammals

Acoustic impacts during construction Adverse impacts to essential fish habitat Hazardous waste re-suspension Entanglements from displaced fishing gear

NOAA’s Trust Resoucres(cont.)

NOAA’s Trust Resoucres(cont.)

Sea Turtle Trapped in Net

Right Whale Entanglement Right Whale After Ship Strike


NOAA’s Role in CZMANOAA’s Role in CZMA

CZMA is designed to preserve and protect the Nation’s coastal zone through implementation of state coastal management programs.

State participation is voluntary, but there are two incentives: Grant money for states to develop, implement and maintain coastal

management programs A federal consistency requirement to assure that activities conducted or

permitted by the federal government are consistent with the state’s coastal management plan

The Secretary of Commerce, through NOAA’s Office of Ocean and Coastal Resource Management, approves state coastal management programs.

All coastal states except Illinois have federally-approved coastal management programs, and Illinois is developing one.


NOAA’s Role in CZMA Consistency


States may review proposed projects requiring federal licenses or permits in the project will affect any land or water use or natural resources of the state’s coastal zone. 16 U.S.C. § 1456(c); 15 C.F.R. Part 930, Subpart D.

A timely objection raised by a State that a project is inconsistent with the State’s coastal management program precludes federal agencies from granting a license or permit for the project unless, on appeal by the applicant or on the Secretary of Commerce’s own initiative, the Secretary overrides the objection because the activity is “consistent with the objectives of the CZMA.”



(cont.)


(cont.)

To meet this standard: The activity must further the national interest in a significant

and substantial way The national interest furthered by the activity must outweigh

the coastal effects of the activity, and No reasonable alternative is available which would permit

the activity to be conducted in a manner consistent with the enforceable policies of the State’s program. 16 U.S.C. § 1456 ©(3)(A); 15 C.F.R. Part 930, Subpart H.

Under the Energy Policy Act of 2005 (EPAct), the Secretary must issue a decision on an applicant’s CZMA consistency appeal within a maximum of 310 days from the date of the Notice of Appeal.


Current CZMA Consistency Appeals

Current CZMA Consistency Appeals

The Secretary has recently received three CZMA consistency appeals:

A Liquefied Natural Gas (LNG) terminal proposed in the Chesapeake Bay near Baltimore to which the State of Maryland has objected.

A LNG terminal proposed on the Taunton River in Fall River, Massachusetts to which the Commonwealth of Massachusetts has objected.

A natural gas pipeline that will transport gas from the Taunton River LNG facility to an interstate pipeline, to which the Commonwealth of Massachusetts has objected.

The Federal District Court in Connecticut has recently remanded another CZMA consistency appeal to the Secretary after setting aside the Secretary’s decision. State of Connecticut v. U.S. Department of Commerce, 2007 WL 2349894 (August 15, 2007).


NOAA’s Role in Hydropower

NOAA’s Role in Hydropower

Hydroelectric More than 1000 (non-federal) hydro-

electric dams are licensed by FERC under the Federal Power Act (FPA), 16 U.S.C. 791a et seq

Hydropower dams can block the migration of migratory fish species to their spawning grounds and alter habitat quantity and quality

NOAA’s National Marine Fisheries Service has authority under the Federal Power Act to issue mandatory prescriptions to ensure upstream and downstream passage for fish and make recommendations to protect and mitigate damage to fish and their habitat

NOAA is also heavily involved in ESA on consultations on impacts on endangered species, particularly salmon, an issue that has sparked voluminous litigation.


NOAA’s Role in Hydropwer

(cont.)

NOAA’s Role in Hydropwer

(cont.)The Energy Policy Act of 2005 (EPAct) gives the license applicant an opportunity to have an administrative trial-type hearing to resolve disputed issues of material fact underlying NMFS’ license prescriptions.

Under EPAct, the hearing and all pre-trial proceedings must be conducted within five months.

In May 2007, NOAA issued prescriptions for the passage of fish in the relicensing of the Yadkin-Peedee hydropower facilities on the Yadkin and Peedee Rivers in North Carolina. The applicant challenged NOAA’s prescription and a hearing was scheduled for October 1. A settlement was reached last week providing for passage of American Shad and American Eel and establishing an adaptive management procedure.


Liquefied Natural GasLiquefied Natural Gas

Natural gas is considered by many an attractive fuel choice from an environmental perspective.

The U.S. consumes about 25% of the world’s natural gas and imports about 4% of the world’s Liquefied Natural Gas

LNG requires: Terminals to liquefy the natural gas Specialized shipping tankers to transport Terminals to regasify the product Pipelines for distribution

The U.S. has 6 LNG terminals currently operating in the U.S.—on the East Coast, Puerto Rico, and Alaska

LNG Ship Unloading at Terminals

The information was provided by FERC and is available online at http://www.ferc.gov/industries/lng.asp


Prospects for LNGProspects for LNG

Some 40 LNG terminals are approved, proposed, or under consideration in the U.S.

Many industry analysts predict that only 12 of these will ever be built


NOAA’s Role in Liquefied Natural Gas (LNG)

NOAA’s Role in Liquefied Natural Gas (LNG)

Federal Energy Regulatory Commission (FERC) has licensing authority for on-shore LNG facilities under the Natural Gas Act, 15 U.S.C. 717 et seq.

The Maritime Administration and the United States Coast Guard (MARAD/USCG) have licensing authority for offshore LNG facilities under the Deepwater Port Act, 33 U.S.C. 1501 et seq.

The information was provided by FERC and is available online at http://www.ferc.gov/industries/lng.asp

LNG Tanker at Sea

Coast Guard Providing

Security Zone for LNG

Shipment

LNG Tank Under Construction


NOAA’s Role in LNG(cont.)

NOAA’s Role in LNG(cont.)

NOAA consults with and provides comments to FERC and MARAD/USCG on:

The completeness of LNG license applications

The thoroughness of the project’s NEPA analysis

Impacts to marine mammals and threatened or endangered marine species

Essential fish habitat Nearby marine sanctuaries, if any

USCG Officers Inspect Vessel


Alternative Renewable energy use will continue to grow.

Alternative Renewables include: Hydrokinetic (harnessing energy from

wave, current, or tidal action) Offshore Wind Ocean thermal energy conversion

NOAA will consult with and make recommendations to licensing agency on impacts to NOAA trust resources.

NOAA’s Role In Alternative Renewable

Energies

NOAA’s Role In Alternative Renewable

Energies

Hydrokinetic GeneratorKinetic Energy Systems

Offshore Wind FarmNantucket

OTEC Facility—Kona, HI


NOAA’s Role in Renewables

(cont.)


(cont.)

Hydrokinetic (wave, tidal, current) FERC, which licenses hydropower under the FPA, has issued

or has pending 45 preliminary permits to study the feasibility of hydrokinetic projects to generate electricity at specific sites.

The Minerals Management Service (Department of Interior) is also developing a regulatory program for possible licensing of hydrokineticprojects on the outer continental shelf pursuant to authorities in the Energy Policy Act of 2005.

Before licenses are issued, NOAA will consult on impacts to NOAA trust resources under the ESA, MMPA, MSRA, NMSA, and FWCA and make recommendations to minimize or mitigate impacts.

FERC and MMS working to sort out any overlapping authorities.

Verdant Power Free-flow Turbine Installed in East River(December 2006)



(cont.)


(cont.)

Potential impacts from hydrokinetics include lethal and non-lethal contact between marine species and turbines, entanglement, construction and operational acoustic impacts, electromagnetic fields, among others.

Scientific uncertainty remains on direct, indirect, and cumulative impacts.

Such uncertainty increases the prospects for litigation when projects are licensed.



(cont.)


(cont.)

Offshore Wind Multiple turbines harness wind

and convert to electricity Minerals Management Service

(Department of Interior) is developing a regulatory program

Potential impacts include noise, vibration, disturbance to the sea floor and fish habitat, alterations to migration patterns of birds, bats, and marine mammals, among others

Before licenses are issued, NOAA will consult on impacts to NOAA trust resources under the ESA, MMPA, MSRA, NMSA, and FWCA and make recommendations to minimize or mitigate impacts.

Offshore Wind Farm in Nantucket, ME



(cont.)


(cont.)

Ocean Thermal Energy Conversion (OTEC)

OTEC uses the difference in temperature between the ocean’s warm surface and colder deep regions to generate power

NOAA is authorized to license pursuant to the Ocean Thermal Energy Conversion Act, 42 U.S.C. 9101 et seq

NOAA is currently developing regulations OTEC is proven technically, but not

commercially

OTEC Prototype Tests by NOAA - 1984


Practice TipsPractice Tips

Understand the role of each federal agency and that numerous agencies are involved

How much time does the agency need? What is it looking for? When is it active in the process? How can its decisions affect the license?

Allow ample time for all necessary consultations

Multiple consultations may be necessary with different agencies at the same time

Check with each consulting agency on its projected timeline


Practice tips(cont.)

Practice tips(cont.)

Recognize that state and local authorities may have a substantial voice in a project through the state’s Coastal Zone Management Program

In the Islander East CZMA case, the proponent of an LNG project certified that its projected was consistent with Connecticut’s Coastal Zone Management Project, but the State disagreed and objected, thereby preventing federal agencies from issuing licenses.

The project applicant appealed to the Secretary, who overruled Connecticut’s objection, finding the project was consistent with CZMA.

The federal district court in Connecticut set aside the Secretary’s decision and remanded the case back to the Secretary for further proceedings.

noaa’s role in current energy issues jane c. luxton general counsel national oceanic and...

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