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.Who's in the Driver's Seat? Washington vs the States, Agency vs Agency
The National Highway Traffic Safety Administration (NHTSA) recently dealt a blow to both EPA and the states by proposing preemptive federal fuel economy standards (corporate average fuel economy or CAFE standards) that not only negate the states’ efforts to regulate fuel economy and vehicle greenhouse emissions but also directly challenge EPA’s leading role in regulating vehicle emissions. Will the courts, Congress, or a presidential administration sort out the traffic jam over authority to reduce vehicle greenhouse emissions? At this writing, the governors of twelve states are weighing in against what they view as a “cynical” power grab by the NHTSA, but resolution is nowhere in sight. [summary]
It’s a fine mess, the climate traffic jam. Led by California, some eighteen states have asserted a primary role in controlling vehicle greenhouse emissions. But the Environmental Protection Agency attempted to close off independent state action by denying California the Clean Air Act waiver it had to have before it (or any other state) could proceed on its own. Having blocked the states, and having lost a Supreme Court case in which it tried to avoid a role in greenhouse gas regulation, the EPA has begun to scour the Clean Air Act to establish its own primacy, not only over vehicle greenhouse emissions, but over a variety of other greenhouse gas sources as well (see accompanying blog).
The state-EPA-court dispute was bad enough, but it gets worse. The National Highway Traffic Safety Administration recently dealt a blow to both EPA and the states by proposing preemptive federal fuel economy standards (corporate average fuel economy or CAFE standards) that render the states’ efforts a clashing nullity and directly challenge EPA’s lead on vehicle emissions. Will the courts, Congress, or a presidential administration sort out the traffic jam over authority to reduce vehicle greenhouse emissions? At this writing, horns blare, voices are being raised (the governors’ above the rest), but resolution is nowhere in sight.
The dispute focuses attention on the fact that vehicle mileage standards and direct emissions controls are inextricably intertwined approaches to combating greenhouse emissions. Altering one unavoidably clashes with the other. States like California want to set both mileage requirements and emissions controls under their own laws, and the EPA wants to control (well, may be forced to control) direct vehicle emissions under the Clean Air Act, but the NHTSA says that the 2007 Energy Independence and Security Act put it in charge by empowering it to set uniform national mileage standards that must not be impaired either by inconsistent state mileage standards or by state or federal tailpipe emissions standards. That makes NHTSA the lead agency on vehicle emissions, and other climate regulatory wannabes must step aside.
The details are that NHTSA has proposed standards for 2011-2015 model years that would culminate in a 2015 standard for cars of 35.7 mpg and 28.6 mpg for light trucks, which represent substantial increases in mpg over existing CAFE standards. It is very important to understand that these proposed new standards explicitly will take carbon dioxide impacts into account for the first time. NHTSA lost a Ninth Circuit appeal when it tried to bypass consideration of CO2 impacts by arguing that it could not put a value on a ton of CO2 emissions. Although it has asked for reconsideration of this decision, it has nevertheless apparently read the handwriting on the wall and decided to issue a proposed CAFE rule that takes carbon control benefits into account.
The big news recently has been the outrage a dozen governors expressed in companion letters to the President and congressional leaders on April 23rd regarding NHTSA’s “cynical attempt” to “subvert,” “usurp,” and “assault” congressional authority and “rewrite” the Clean Air Act’s provisions covering air pollution, “including greenhouse gases.” The governors could not have been clearer (could they?) that they view state authority to control greenhouse emissions as guaranteed by the Clean Air Act and principles of federalism and that, as far as they are concerned, the only relevant federal greenhouse gas control law is the Clean Air Act (with which they are not entirely pleased, but they like it better than putting the federal Department of Transportation in control).
The NHTSA may not appear at first glance to be an environmental protection agency, but the National Environmental Policy Act (NEPA) may be the “vehicle” for an enforced education for NHTSA in climate science and policy. NHTSA’s debut in climate policy takes the form of a comprehensive NEPA environmental impact statement that the Administration has announced that it will draft on climate science and alternative ways to reduce vehicle greenhouse emissions (Federal Register Notice). The public and other agencies of federal and state government will be asked to provide comment. NHTSA wants to make its own collection of studies of greenhouse gas impacts on temperature, water, biological resources, human health and welfare, regional differences, and the time frame in which impacts may occur. If this sounds somewhat familiar, keep in mind that NHTSA comes somewhat new to the climate debate.
Thus, while EPA is asking for public comment on using the Clean Air Act’s provisions for climate management in the US, the NHTSA is creating another parallel public forum on the topic using the NEPA process and the triggering “major federal action” of its proposal of corporate average fuel economy (CAFE) standards under the 2007 Energy Independence and Security Act. While Congress continues to review climate bills and hold hearings, the federal agencies are far from silent. While this election year grinds on, maneuvering for position quietly goes forward among the states and the federal agencies most involved with climate policy development.
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.
