Comité Dialogo Ambiental, Inc. v. Federal Emergency Management Agency

The federal district court for the District of Puerto Rico ruled that the Federal Emergency Management Agency (FEMA) should have prepared an environmental impact statement for the provision of funding to restore utilities damaged by Hurricanes Irma and Maria in Puerto Rico and to increase their future resiliency. The plaintiffs—community and environmental groups who the court concluded had standing—charged that the defendants violated the National Environmental Policy Act (NEPA) by, among other things, failing to consider distributed renewable energy alternatives and failing to adequately examine environmental harms associated with rebuilding the fossil fuel grid. The court stated that it could “not see how FEMA could argue that there is no substantial possibility that the projects contemplated … could significantly affect the quality of the human environment,” necessitating preparation of an EIS under the NEPA. The court was not persuaded by FEMA’s arguments that FEMA was not required to analyze alternatives not submitted by project applicants, that renewable energy alternatives did not meet the purposes and need of the action, and that FEMA was required to give substantial weight to applicants’ preferences. The court found, however, that FEMA’s separate programmatic environmental assessment (PEA) for funding to restore public facilities was sufficient. The court noted that the PEA for public facilities did not encompass restoration or replacement of energy infrastructure and that the plaintiffs did not identify language in the PEA limiting the reestablishment of power in public facilities to fossil fuel-powered electricity.