Global Climate Change Under NEPA
Increasingly, the National Environmental Policy Act (NEPA) is being seen as a vehicle for ensuring that the federal government considers the impact of its actions on global climate change. Relying on a string of judicial decisions that require agency NEPA impact statements specifically to address the climate consequences of agency actions, environmental organizations have petitioned the President’s Council on Environmental Quality to conform its NEPA guidelines to the requirements of these cases. Climate will clearly figure prominently in future federal impact statements, and non-federal stakeholders, who often are the real parties in interest in NEPA compliance, would be wise to address climate early and often when developing their NEPA compliance strategies. [summary]
Increasingly, the National Environmental Policy Act (NEPA) is being seen as a vehicle for ensuring that the federal government considers the impact of its actions on global climate change. Enacted in 1969, NEPA requires federal agencies to prepare environment impact statements for all “major federal actions significantly affecting the quality of the human environment.” Agencies must assess all reasonably foreseeable environmental impacts of a proposed action, including an analysis of direct, indirect, and cumulative effects.
Recently, several NGOs petitioned the White House Council on Environmental Quality (CEQ) to amend its regulations to make clear that NEPA requires that climate change effects be addressed in NEPA compliance documents. The US groups and their allies abroad see the use of NEPA to raise “climate consciousness” and force federal agencies to take climate into account as part of a wider effort to use both the NEPA-like impact assessment law of almost ninety other countries, and the extensive environmental impact assessment requirements of the World Bank Group, to raise climate concerns.
The petition argues that scientific evidence supports the conclusion that climate change results from the build-up of greenhouse gases released into the atmosphere by human activity. Thus climate change is “reasonably foreseeable” within the meaning of NEPA and should be evaluated by agencies when considering the environmental impacts of their actions. The petition relies upon several federal court cases where NGOs have challenged agency failures to consider climate change impacts in a variety of contexts, ranging from the impacts of a proposed project’s greenhouse gas emissions (i.e., federal permit for power plant transmission lines) to climate change impacts on resources also affected by a proposed project (i.e., incidental taking of polar bears and walruses). Courts have not been reluctant to find agency NEPA compliance deficient because climate impacts were not considered.
Yet under NEPA, the courts and the CEQ, should it decide to amend its regulations, can do no more than mandate federal agencies to expand their disclosure of the potential climate impacts of approvals and projects, however indirect and remote they may be. Unlike other environmental statutes, NEPA neither contains particular criteria nor mandates particular results. It is well settled that NEPA is only a “full disclosure law.” In reality, however, energy, transportation, manufacturing, forest, and agricultural projects may be quite vulnerable to delays associated with agency NEPA compliance or an injunction requiring the federal agency to expand its NEPA analysis to cover potential climate impacts. Faced with an adverse court ruling, the decision to proceed with a project may be revisited by one or more agencies, the corporation or its partners, or financial backers.
These realities might be overcome were the real parties in interest – the private companies that rely on federal approvals or funding to go forward – in a position to manage NEPA compliance toward a prompt and successful conclusion. They are not. NEPA climate suits can be brought only against federal agencies, which may not defend the actions with the same zeal as the real parties in interest, or necessarily the same points of view. Industry, therefore, must seek to intervene as defendants, but even if successful will not occupy “first chair” in the litigation. A successful, close working relationship with attorneys in the defendant agency and Department of Justice is not assured. In the end, the fate in court of a federally funded project or federal approval may lie substantially in the hands of government lawyers. Add in the vagaries of the relatively new area of climate change, and companies might well be apprehensive about outcomes before federal agencies and courts.
The problem penetrates even deeper. With growing consciousness of the campaign to bring NEPA cases against federal projects and programs, federal agencies will beef up – and inevitably stretch out – their efforts to comply with NEPA. EAs will become EISes; cumulative impacts analyses will expand in complexity and length. Strategies are available to manage NEPA compliance, e.g., multi-party multi-agency memoranda of understanding on the scope and schedule of NEPA compliance, but few federal incentives exist to chart a definite – much less prompt – course to final NEPA compliance. Again, the real parties in interest will experience project uncertainty, delay, and expense.
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