NGO Campaign Addresses NEPA and Climate
A recent spate of activities by environmental organizations shows the expanded scope and sophistication of the campaign by non-governmental environmental organizations (NGOs) to convince, or force, federal agencies to analyze potential climate impacts in environmental impact statements mandated by the National Environmental Policy Act (NEPA). A recent blog addressed efforts to get federal NEPA guidelines amended to require this, but this is just one small step in a wider effort.
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 28th letter that the BLM’s cursory NEPA compliance document – an environmental assessment – inadequately analyzes greenhouse emissions from drilling that would, asthe 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.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.
