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Linear Energy Project Development on Public Lands: Proving that the Shortest Distance between Two Points is Rarely a Straight Line

Aaron C. Courtney, Michael P. O'Connell, Public Land Law, Regulation, and Management

This article will summarize those federal land management and environmental regulatory programs that are generally applicable to linear energy projects and describe how those programs can create constraints on project development. Because the type of public land that a project crosses can also impose its own specific set of permitting challenges, this article examines as examples those types of issues in the context of National Parks, National Wildlife Refuges, and Wilderness Areas. Moreover, given the unique nature of and regulatory authority over cultural resources both on federal lands and on or off of Tribal Reservations, this article provides an indepth discussion of such issues. Finally, in large part due to the permitting challenges described herein, the federal government has prescribed and proposed several mechanisms for alleviating these problems; this article concludes with a summary of some of those initiatives.

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II. FEDERAL ENVIRONMENTAL AND LAND MANAGEMENT REGULATORY PROGRAMS RELEVANT TO LINEAR PROJECT DEVELOPMENT ON PUBLIC LANDS

A. National Environmental Policy Act

1. Overview

Overlying any linear project development on federal land are the significant procedural mandates of the National Environmental Policy Act (“NEPA”).2 Specifically, NEPA requires the preparation of an environmental impact statement (“EIS”)