Docket No. CP25-528-000
In today’s Order, the Commission issues Eastern Gas Transmission and Storage, Inc. authorization to construct, operate, and maintain the Appalachian Reliability Project. The order explains that the Commission Staff’s Environmental Assessment (EA) prepared as part of our National Environmental Policy Act of 1969 (NEPA)[1] review for this project included a separate section identifying and analyzing “cumulative effects” and affirms that “we agree with the substance of staff’s analysis in that section.”[2] In dicta, the order then considers whether the procedural exercise of identifying a distinct and separate category titled “Cumulative Effects” in an EA, as staff did here, is explicitly required in every proceeding.
I write separately here to make clear that, notwithstanding the order’s discussion of the inclusion of a separate section titled “Cumulative Effects,” the Commission has a legal obligation to assess the impacts of each proposed project within the context of real-world conditions, including other existing or planned activities in the vicinity of the project. I am keenly interested in both supporting efficiency gains we can create for industry and Commission staff—including by making sure that our processes do not create unnecessary work by elevating form over the substance of staff’s analysis—as well as ensuring that our decisions are legally durable by fully complying with our NEPA responsibilities.
Background: The Commission’s Practice of Considering Cumulative Effects
Before turning to today’s order, I believe it is important to provide historical context regarding the Commission’s evaluation of cumulative impacts. Historically, the Commission’s natural gas pipeline and liquified natural gas project NEPA environmental review documents have typically included a separate section addressing “cumulative effects,” as distinct from other categories of reasonably foreseeable effects. By comparison, the Commission’s hydroelectric licensing and compliance orders typically integrate staff’s cumulative effects analysis into each resource area assessment.
The Commission’s analysis extends beyond the incremental impacts attributable to a proposed project to ensure that we are not evaluating the effects of the action in a “vacuum”—that is, without contextualizing the project within the “overall state of the surrounding environment” in a manner that may “overlook the full impact” of individual project effects and thus fail to adequately assess their significance.[3] For example, a small increase to air pollution in a community that is already overburdened by industrial air pollution may be quite impactful—the proverbial “straw that breaks the back of the environmental camel.”[4]
The Council on Environmental Quality’s (CEQ) now-rescinded regulations subdivided reasonably foreseeable effects into three categories—direct, indirect, and cumulative. With the exception of a two-year period from 2020-2022, CEQ’s regulations used these three defined terms for nearly 50 years until they were rescinded last year:
Cumulative effects—effects that result from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative effects can result from individually minor but collectively significant actions taking place over a period of time.
In 2020 revisions to its NEPA implementing regulations, CEQ removed the direct/indirect/cumulative framework, and instead defined effects to mean:
changes to the human environment from the proposed action or alternatives that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives, including those effects that occur at the same time and place as the proposed action or alternatives and may include effects that are later in time or farther removed in distance from the proposed action or alternative.[5]
As a part of the 2020 revisions, CEQ removed all explicit references to the term “cumulative effects” from its regulations. CEQ clarified however, that agencies must analyze the effects of a proposed action against the backdrop of the “affected environment,” which was specifically defined to include “reasonably foreseeable environmental trends and planned actions in the area(s).”[6] Notably, the regulations were explicit in allowing the inclusion of effects that were not immediately proximate in location or time to the project in question as a means of understanding the full impacts.
After the 2020 revisions, the Commission’s NEPA documents were prepared in accordance with these revised regulations for approximately 15 months, between 2020 and 2022. Under that approach, the environmental document did not include a dedicated section titled “Cumulative Effects.” Instead, it provided a discussion of “Environmental Trends and Planned Activities,” broadly describing the existing environment in the project area (as well as how that environment would be expected to change over time), including an identification of other reasonably foreseeable projects or planned activities that could influence the environmental baseline. These were the same sorts of projects and activities that would traditionally have been described in a cumulative effects analysis.
In 2022, CEQ undertook another rulemaking, reverting its regulations to include the three traditionally recognized types of effects (direct, indirect, and cumulative). It stated that the definitions of these effects comported with “CEQ’s extensive experience implementing NEPA” and “longstanding Federal agency experience and practice.” [7] Then, in 2025, CEQ began the rulemaking process that ultimately rescinded its NEPA regulations entirely.[8]
The Commission’s Ongoing Environmental Review Obligation
Regardless of the current regulations guiding the preparation of environmental documents under NEPA, there are explicit statutory requirements in NEPA requiring agencies to analyze the “reasonably foreseeable environmental effects of the proposed agency action.” [9] Even prior to CEQ’s original 1978 regulations, caselaw interpreting NEPA clarified that agencies must examine proposed projects within the context of the environment in which they are placed. The Supreme Court, in Kleppe v. Sierra Club, explained that “when several proposals for coal-related actions that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together.”[10] The Court also noted that “[c]umulative environmental impacts are, indeed, what require a comprehensive impact statement” and “the determination of the extent and effect of these factors, and particularly identification of the geographic area within which they may occur, is a task assigned to the special competency of the appropriate agencies.”[11] Kleppe has been cited extensively over the past 50 years for the proposition that NEPA requires analysis of reasonably foreseeable effects within the context of the environment in which a project exists.[12]
The Commission’s obligation under NEPA and caselaw includes the requirement to assess impacts of the proposed project in the context of the environment and community in which it is located. We must take a holistic approach to any process reforms to ensure that small efficiencies we implement on the front end do not create indefinite delays on the back end due to legal uncertainty.
The Commission need not choose between fulfilling our responsibility to fully review the environmental impacts of proposed projects versus efficiently authorizing new projects needed to serve growing energy demand. We can and must do both. Going forward, my review of direct incremental impacts of proposed projects will continue to be informed by contextualizing the project within the overall condition of the surrounding environment, consistent with longstanding judicial and Commission precedent.
For these reasons, I respectfully concur.
[1] 42 U.S.C. §§ 4321 et seq., see also 18 C.F.R. pt. 380 (2025) (Commission’s regulations implementing NEPA).
[2] Order at P 25.
[3] Healthy Gulf v. FERC, 107 F.4th 1033, 1043 (D.C. Cir. 2024) (citing Grand Canyon Trust v. FAA, 290 F.3d 339, 342 (D.C. Cir. 2002) (agencies “must give a realistic evaluation of the total impacts and cannot isolate a proposed project, viewing it in a vacuum”); see also CEQ, National Environmental Policy Act Implementing Regulations Revisions, 87 Fed. Reg. 23,4523, 23,462 (Apr. 20, 2022).
[4] Hanly v. Kleindienst, 471 F.2d 823, 831 (2d Cir. 1973).
[5] 40 C.F.R. § 1508.1(g) (2020).
[6] 40 C.F.R. § 1502.15 (2020).
[7] CEQ, NEPA Implementing Regulations Revisions, 87 Fed. Reg. 23,453, 23,453 (Apr. 20, 2022).
[8] Council on Environmental Quality, Removal of National Environmental Policy Act Implementing Regulations, 90 Fed. Reg. 10,610 (Feb. 25, 2025) (interim final rule rescinding CEQ implementing regulations), 91 Fed. Reg. 618 (Jan. 8, 2026) (final rule).
[9] See 42 U.S.C. § 4332(2)(c)(i).
[10] Kleppe v. Sierra Club, 427 U.S. 390 at 409-15 (1976).
[11] Id. at 413-14.
[12] E.g., Sierra Club v. FERC, 827 F.3d at 49-50 (discussing Kleppe and adequacy of the Commission’s assessment of cumulative effects).