CHAPTER 12 NEPA AND CLIMATE CHANGE: WHERE WE WERE, WHERE WE ARE, AND WHERE ARE WE GOING?

• Jurisdiction: United States

National Environmental Policy Act (Nov 2017)
CHAPTER 12
NEPA AND CLIMATE CHANGE: WHERE WE WERE, WHERE WE ARE, AND WHERE ARE WE GOING?
Deana M. Bennett
Partner, Modrall Sperling
Albuquerque, NM

[Page 12 - 1]

DEANA BENNETT is a Partner with Modrall Sperling, in Albuquerque, NM. Her practice is focused on natural resource development on public and tribal lands. Deana's experience includes permitting and environmental compliance under the National Environmental Policy Act ("NEPA"), the Endangered Species Act ("ESA"), and other related federal statutes. She has worked on a number of utility matters, and her experience also includes working with renewable resource developers with siting issues on public, tribal, state and local land. It is not surprising that Deana's practice areas focus primarily on natural resource development and public lands. Deana calls the West home, from New Mexico to Alaska. Deana's early childhood was spent travelling in a Volkswagen bus from Yellowstone National Park to Everglades National Park, where her father was a Park Ranger. After leaving the Park Service, her father worked for the Bureau of Land Management until he retired. Deana is a true coal miner's daughter; her mother worked in an underground coal mine in Wyoming for several years, while her father attended the University of Wyoming. Before attending law school, Deana retraced some of her childhood adventures. Deana worked in Yellowstone National Park, spent a winter working at a ski area in Utah, and spent two summers working on a luxury passenger train in Alaska, where she bought her own 1979 Volkswagen bus. Deana earned her Juris Doctor from the University of New Mexico. Deana also has a M. A. in French Literature and a B. A. in French Language, both from the University of New Mexico.

I. INTRODUCTION¹

The issue of how to address climate change and greenhouse gas ("GHG") emissions in an environmental review document prepared to comply with the National Environmental Policy Act ("NEPA") has been difficult for project proponents and agencies alike, and has been a target for environmental organizations and others for challenging NEPA decisions. President Obama's administration advanced guidance and initiatives designed to eliminate or minimize GHG emissions and to address climate change. When this paper was proposed, two guidance documents were moving to the forefront of the GHG/NEPA discussion--the Social Cost of Carbon, a technical document prepared by an interagency working group to monetize the cost of GHG emissions, and the Council on Environmental Quality's ("CEQ") draft and recently published final guidance on considering GHG emissions and effects of climate change in NEPA reviews ("CEQ GHG Guidance"). President Trump and his administration have taken a different approach to climate change--emphatically signaled by President Trump's March 28, 2017 Executive Order 13783, titled "Promoting Energy Independence and Economic Growth,"² which targeted many of the Obama Administration's climate change initiatives. The Social Cost of Carbon and CEQ's GHG Guidance were two Obama-era initiatives identified in Executive Order 13783, both of which have now been withdrawn or revoked. Although withdrawn, those initiatives are not forgotten, especially given that they had begun to gain traction and appear in NEPA documents and appeals challenging those documents.

Part II of this paper begins with a brief overview of NEPA and a discussion of NEPA's requirement that agencies consider cumulative impacts in their environmental reviews. Part III of this paper provides an overview of where we were before March 28, 2017, including a discussion of 1) federal case law discussing NEPA analyses of GHG emissions before the Social Cost of Carbon and GEQ's GHG Guidance were prepared, 2) the Social Cost of Carbon, 3) CEQ's GHG Guidance, 4) cases discussing agency compliance with those two tools; and 5) recent case law discussing NEPA and climate change generally. Part IV of this paper discusses where we are now: Executive Order 13783 and its impacts on certain Obama-era initiatives. Part V discusses the few agency and court decisions that are now addressing the implications of the Executive Order, and the recent Executive and Secretarial Orders designed to "streamline" the NEPA process.

[Page 12 - 2]

II. OVERVIEW OF NEPA, CUMULATIVE IMPACTS, AND STANDING TO RAISE CLIMATE CHANGE CHALLENGES

A. Brief Overview of NEPA

NEPA, signed into law by President Nixon in 1970, was enacted to:

declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; [and] to enrich the understanding of the ecological systems and natural resources important to the Nation.... ³

CEQ was established by Congress when it enacted NEPA and is within the Executive Office of the President.⁴ CEQ issues NEPA's implementing regulations and reviews and approves other federal agencies' NEPA procedures.⁵ CEQ's implementing regulations describe NEPA as "our basic national charter for protection of the environment."⁶

B. Impacts/Effects Analysis under NEPA

CEQ's regulations implementing NEPA require an agency disclose the direct, indirect, and cumulative effects of a proposed project in the NEPA document. CEQ's regulations use "effects" and "impacts" interchangeably.⁷ Direct effects are those that "are caused by the action and occur at the same time and place."⁸ Indirect effects are "caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable."⁹ According to CEQ's regulations, indirect effects may include "related effects on air and water and other natural systems, including ecosystems."¹⁰

"Cumulative impact" is defined as:

[Page 12 - 3]

the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. ¹¹

When an agency is determining whether to prepare an environmental impact statement ("EIS"), as opposed to only preparing an environmental assessment ("EA"), the agency must consider whether an action has the potential to significantly impact the human environment, which includes an analysis of, among other factors:

Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts. ¹²

CEQ has also published guidance on how agencies should analyze cumulative effects during the NEPA process.¹³ CEQ's Cumulative Effects Guidance discusses climate change as a "cumulative effects problem[]" and notes that the importance of climate change, among other cumulative effects problems, "has resulted in many efforts to undertake and improve the analysis of cumulative effects."¹⁴ It also includes a table setting out questions to consider in identifying a proposed action's cumulative effects, including whether the proposed action will release "greenhouse gases resulting in climate change modification."¹⁵ The guidance recommends that an agency "pay special attention to common natural resources and socioeconomic issues that arise as a result of cumulative effects[]" and gives, as an example, human health hazards and global atmospheric alterations arising from cumulative additions of emissions.¹⁶

GHG emissions, and their impacts on climate change, could be considered a direct, indirect, or cumulative effect of a federal agency action.¹⁷ One court, however, has stated: "The impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct."¹⁸ CEQ, however, in its 2014 Revised

[Page 12 - 4]

Draft Guidance on Consideration of GHG Emissions and Climate Change cautioned that, with respect to cumulative impacts, "CEQ does not expect that an EIS would be required based on cumulative impacts of GHG emissions alone."¹⁹ CEQ included this statement to address the "concern that an EIS would be required for any emissions because of the global significance of aggregated GHG emissions."²⁰

C. Standing to Challenge GHG and Climate Change NEPA Analyses

Courts have found standing to challenge NEPA decisions based on alleged deficiencies in the NEPA document's GHG and climate change analysis to exist even when standing is not based on harms resulting from that analysis. For example, in Sierra Club v. Federal Energy Regulatory Commission,²¹ the court found that Sierra Club had standing to challenge the Federal Energy Regulatory Commission's ("FERC") pipeline approval. In that case, Sierra Club members submitted affidavits stating how the project would harm their "concrete aesthetic and recreational interest."²² One member stated that the pipeline would cross his property on an easement taken by eminent domain, construction noise would impair his enjoyment of his daily activities, and trees shading his house would be removed.²³ The court found this to satisfy Article III's standing requirements for Sierra Club to challenge the adequacy of the EIS.²⁴ The court then held: "The deficiency need not be directly tied to the members' specific injuries. For example, Sierra Club may argue that FERC did not adequately consider the pipelines' contribution to climate change."²⁵

Just recently, on September 15, 2017, the United States Court of Appeals for the Tenth Circuit confirmed that petitioners in the...