Indigenous Environmental Network
Key Points on the Energy Independence and Security Act
27 September, 2022
Last week, the official text of the Energy Independence and Security Act of 2022 (EISA) was released. Key changes include gutting National Environmental Policy Act (NEPA), fast-tracking the Mountain Valley Pipeline, ensuring more fossil fuel projects and silencing dissent. Yesterday, the Democrats released H.R. 6833, the budget reconciliation package that — if passed — will continue to fund the government through mid December. The EISA is included in the new 237 page document, though the amendments to the Clean Water Act have been removed for now.
How is the EISA harmful?
It Silences Dissent and Opposition to Destructive Projects
Comment deadlines for “agencies” (including Tribal governments and local agencies) and the public are extremely limiting, especially for Indigenous Peoples, communities of color, frontline communities, and Tribal governments. (SEC.12)
- A mere 60 days is given to comment on the draft of the environmental impact statement from the publicly published date, and an even shorter 45 days for a completed Environmental Impact Review and Federal authorization.
- Claims against new energy projects that seek a judicial review must file within 150 days (less than 5 months) of the project’s authorization under law, while current law allows 6 years. In many cases, negative impacts of energy projects take longer than 5 months to surface. Furthermore, navigating the court system and hiring legal representation can have high costs in time and money, which further burdens frontline communities and Indigenous Peoples.
- The imposition of unreasonable and arbitrary deadlines is a tactic to silence dissent and prevent communities from participating in the authorization and comment process.
It Guarantees New Fossil Fuel Projects
The EISA requires the president to designate 25 energy projects deemed of “strategic importance.” A closer look at the proposed projects exposes false solutions and handouts to extractive, polluting industries. (SEC.13)
- Four must be in mining or processing of “critical minerals,” and 3 out of those 4 projects must be new ones.
- Five will be for fossil fuels or biofuels.
- Two will be for Carbon Capture and Storage (CCS).
- One will be for so-called ‘clean hydrogen.’
- Only 6 will be “without the use of fossil fuels” or to manufacture “clean energy equipment.” At the same time, without adequate guidelines on what these projects look like, it can include false solutions such as CCS, Carbon Capture, Utilization (CCUS), Carbon Dioxide Removal (CDR), and other unproven technologies.
- EISA promotes the development of new “categorical exclusions” (CE). CE allows federal agencies to take actions, including permitting and constructing new energy projects, that side step the requirement to provide an environmental assessment or an environmental impact statement.
Redefining “Natural Gas” to Facilitate Dangerous Hydrogen Projects
The EISA amended the Natural Gas Act to include mixed and unmixed hydrogen under the definition of natural gas. (SEC. 23)
- This change will give the Federal Energy Regulatory Commission (FERC) complete power and control over approving hydrogen pipelines, in addition to natural gas pipelines. This takes away autonomy from States and Tribal governments to have a say in multiple hearings over pipelines, FERC trims the process down to one routing and mitigation hearing. (P. 86)
- Hydrogen is falsely pushed as a source of ‘clean energy’ but it can only be as clean as its energy source–in the US, 95% of hydrogen energy is made using natural gas! Moreover, hydrogen is extremely energy-intensive, prone to leaks, and can produce nitrogen oxide, which is a potent greenhouse gas with significant public health implications.
It Expedites Dirty Energy Projects
The EISA expedites the authorization and review processes for energy projects despite risks of ineffective and poor assessment of environmental and justice impacts. (SEC. 12)
- The EISA’s definition of “qualified projects” includes fossil fuel extraction and mining, along with false solutions like Carbon Capture Utilization and Storage (CCUS).
- Major energy projects of these types have a maximum of two years to prepare Environmental Impacts Statements (EIS). The average time for completing an Environmental Impact Review in 2015 is 4.1 years, while fossil fuels projects take longer to review and approve and higher chances of rejection (due to environmental and community harm).
- The goal of this provision is to speed up the development of fossil fuel extraction and mining instead of renewable projects, since renewable energy projects are overwhelmingly approved on time through NEPA.
It Ensures the Mountain Valley Pipeline (MVP) and others will be fast-tracked
The Mountain Valley Pipeline (MVP) is a fracked-gas pipeline that would pierce through West Virginia and Virginia, encroaching onto the lands of Tribal Nations and Indigenous communities, among others. (SEC. 24)
- The EISA fast-tracks the completion of the MVP: within 30 days of passing the Act, all right-of-way permits, leases, and authorizations necessary for construction, operation, and maintenance of the MVP must be authorized and backdated to January 2021.
- The power to modify the amendments, verifications, and other permits and authorizations for the MVP is given to ‘concerned Secretaries’, which only includes secretaries from federal agencies such as the Agriculture, Interior, and the Army. This precludes Indigenous Peoples, Tribal Nations, and frontline communities from involvement in decision-making processes that will affect their communities and their lands. This directly undermines Indigeous sovereignty and self-determination.
- Under the EISA Secretaries can justify changes if they protect “the public interest or the environment,” a vague and easily distorted term. Moreover, if energy projects are in the ‘public interest’, they can surpass NEPA.
- Even more concerning, any actions committed that are “necessary for the construction and initial operation at full capacity of the [MVP]” shall not be subjected to judicial review. This means that any action by the federal secretaries, including attempts to discredit biodiversity opinions, shortchange review processes, or recklessly accelerate verification processes, will enjoy impunity from judicial claims and processes.
- Not only does the EISA circumvent the justice system by fast-tracking Sen. Manchin’s pet-project the Mountain Valley Pipeline, but projects such as the Dakota Access Pipeline, Keystone XL Pipeline, Line 3, Line 5, LNG export terminals, Stibnite Gold Mine and dozens of other projects that are required to undergo thorough environmental review could potentially be fast-tracked through the EISA, forcing projects onto communities that are known to cause harm.
- The unnecessary time restraints and the arbitrary restrictions on access to the justice system–the inclusion of which is plainly a strategy to circumvent public accountability and fair access to the courts–will exclude full public participation in environmental review and make it even more difficult for federal agencies to fulfill Tribal consultation duties.
- The presence of these pipeline and other projects directly results in increased violence, human trafficking, and Missing and Murdered Indigenous People. For Indigenous people, the EISA means more violence to our land and bodies. Our communities deserve the opportunity for a robust environmental review, adequate time for public comment, and the type of meaningful consultation that truly fulfills the federal government’s responsibility to Tribes.
(The provision below was removed as of 26 Sept 22 but it may reappear in the future)
It Weakens Tribal and State Review of Energy Projects Under the Clean Water Act (CWA)
The EISA significantly weakens the Clean Water Act (CWA) by restricting Tribal and State governments’ ability to deny or meaningfully comment on certifications for federal energy projects that have detrimental impacts to Tribal Nations, local, frontline, and Indigenous Communities. (SEC. 21)
- Section 401 of the Clean Water Act (CWA) allows States and authorities to stop a project that does not “comply with any applicable effluent limitations and other limitations” set forth by the Act as well as any “other appropriate requirement of state law.” This is important because it allows projects to be rejected based on State laws. The EISA will eliminate the ability to stop projects based on “other appropriate requirements of state law”, vastly narrowing ways to stop fossil fuel or polluting projects to move forward.
- The EISA sets an arbitrary deadline of 6 months for Tribal and State reviews under Section 401 of the CWA. This truncates Tribal and community consultation processes and makes it nearly impossible for the voices of Indigenous Peoples and frontline communities to be heard.
- EISA’s amendments forbids Tribes and States to deny or condition permits based on “non-water quality impacts, including those associated with air emissions,” regardless of state laws. This vastly narrows the existing legal criteria used in permitting processes and will allow for large federal projects such as pipelines or Liquified Natural Gas (LNG) facilities to disregard the local/State laws and/or the demands of local communities.
- These changes are highly restrictive and fundamentally change how States, Tribes, and communities can ensure that harmful energy projects including fossil fuel extraction do not get built.