Climate Change Insights : Climate Change Law and Policy Lawyers & Attorneys : McKenna Long & Aldridge Law Firm : Climate Change Regulation, Green Strategies, Environmental Policy

We have addressed the petition that several non-governmental environmental organizations directed to the White House Council on Environmental Quality (CEQ), asking it to amend its regulations to make clear that NEPA requires that climate change effects be addressed in NEPA compliance documents (see Global Climate Change Under NEPA). A recent spate of activities by environmental organizations shows the expanded scope and sophistication of this campaign.

Re-enforcing the petition of the environmental NGOs, an allied group, the Center for American Progress, has adopted a different strategy for pressing the point about government-wide assessment of potential climate impacts in NEPA documents. The Center just issued a report calling for a presidential Executive Order mandating the preparation of impact statements on potential climate impacts for all federal actions covered by NEPA.

Reading between the lines, the Center’s report appears to be one more in a steadily increasing stream of “Day One” recommendations for the president to be selected in the November election. Compare, for example, the recent report by Nigel Purvis and the Better World Campaign titled US Global Leadership to Safeguard our Climate, Security, and Economy. Thus the White House is not likely to act on this petition in the next few months, although, that said, the CEQ has the issue of amending its NEPA guidelines under active review now.

Further, relying on a string of judicial decisions that require agency NEPA impact statements specifically to address the climate consequences of agency actions, NGOs are pressing their case in action-forcing petitions and suits that illustrate the points they make in their petition to CEQ and a report calling for a NEPA Executive Order on climate impacts.

For example, several environmental and native Alaskan groups just filed a complaint in federal district court in Alaska seeking to enjoin seismic activity by BP and Shell in the Beaufort and Chukchi Seas. The groups allege that the Minerals Management Service (MMS) violated NEPA by issuing permits before completing a programmatic environmental impact statement (EIS) that is in preparation for seismic surveys in the region. They are relying on a CEQ regulation that directs that while working on a programmatic EIS, an agency “shall not undertake in the interim any major Federal action covered by the program which may significantly affect” the environment unless the action is either covered by an existing programmatic EIS or meets conditions specified in the regulation. 40 C.F.R. § 1506.1(c). The complaint also alleges that the National Marine Fisheries Service (NMFS) violated the Marine Mammal Protection Act (MMPA) by issuing to Shell an “Incidental Harassment Authorization.” The groups are asking the court to order the MMS to rescind the permits it has issued until it complies with NEPA. Similarly, they are asking that the NMFS rescind its permits as well.

This suit is quite important because of the Alaskan endangered species, climate, and native Alaskan issues that are raised, the scientific questions that the case involves, the relationship to the Interior Department’s determination on the possible endangered status of the polar bear, the national debate on climate, and the NEPA, MMPA, and ESA legal issues that will be addressed by the court.

The suit also has important ramifications for any use of seismic testing for oil and gas, whether off of the North Slope or elsewhere in any marine environments, and links such testing to the impact of global warming on endangered species. One of the plaintiff groups, the Center for Biological Diversity, specifically makes this point in its press release. The organization has begun broadly to link global warming to endangered species, whose habitats may be altered by climate change.

A second NGO initiative addresses NEPA compliance for a Bureau of Land Management (BLM) proposal to lease 1.7 million acres of public land in Nevada for possible oil and gas development. Again, the Center for Biological Diversity is carrying the challenge forward, maintaining in an April 28^th letter that the BLM’s cursory NEPA compliance document – an environmental assessment – inadequately analyzes greenhouse emissions from drilling that would, as the Center argues, accelerate climate change and thereby alter the habitats of numerous species while also impacting human health and the human environment. The Center wants a full EIS prepared on the potential climate impacts of the oil and gas drilling program.

While predicting the climate implications of a leasing program for drilling for oil and gas that may or may not be found in any particular quantity or particular area is at best a difficult exercise – a point that the BLM is sure to make in its response to the petition – nevertheless the NGO effort may very well make its point by directing public attention to the climate impact of fossil fuel development, whether or not the petition is ultimately successful. Further, in a “round two” the petition may provide the basis for a lawsuit similar to the one just filed in Alaska.

While climate is at the center of the campaign for fuller NEPA disclosures, other expansions in NEPA analysis may also be in store. Consider, for example, how EPA’s northwestern regional office is working with Alaskan agencies to include an assessment of socio-economic health impacts such as alcoholism and domestic violence in a Supplemental EIS to be used in deciding whether to issue a revised water discharge permit for the Red Dog lead and zinc mine in Alaska. The compliance document already has its own acronym, HIA (Health Impact Assessment). The CEQ is also considering a request to provide guidance on how to assess health impacts under NEPA.

While the nation moves toward November, a post-election agenda of NEPA reforms is slowly being formed. In an election year, one may overlook sure signs of developments that will come after the dust settles in November. NEPA compliance seems destined to be expanded and reformed, whomever is elected president in the Fall.