On April 15, 2022, the Federal Energy Regulatory Commission (FERC) issued an Equity Action Plan (EAP) that introduces a two-year overhaul to review its policies to better promote equity and remove barriers to environmental justice communities. In particular, for hydropower projects, the EAP will focus on: (1) building and staffing its new Office of Public Participation, (2) strengthening Tribal government consultation and engagement policies and processes, (3) reviewing key regulations within the hydropower project licensing process, and (4) implementing equity readiness for staff to understand the EAP mission.

Focusing on implementing the hydropower licensing prong of the EAP, FERC notes that while its licensing regulations address certain matters related to Tribal communities and resources, there are no express regulations or guidance that specifically focus on Tribal or environmental justice issues. Rather, the regulations broadly address socioeconomic resources, without requiring applicants to collect information or conduct the consultation necessary to evaluate the effects of a hydropower project on environmental justice communities. Thus, FERC’s plan is to review its National Environmental Policy Act (“NEPA”) implementing regulations and guidance to address “environmental justice and equity issues in a more robust manner.” While FERC has not yet announced details on its process for review, it has stated that it plans to engage stakeholders, hold a public workshop on environmental justice and Tribal issues, and solicit views on best practices and evolving federal guidance.

The EAP represents a continuation of FERC’s commitment to environmental justice which was announced earlier this year, and is consistent with the President’s Executive Order that requires federal agencies to consider proposed project impacts on environmental justice communities in the activities of federal agencies. Although the EAP is in its early stages, FERC staff has begun to issue requests for environmental justice information to be used in its NEPA analysis and has issued deficiency notices to applicants that have not provided this information.