Chapter 13 NEPA and Climate Change: The Climate Change "Cha-Cha Slide"
| Jurisdiction | United States |
DEANA M. BENNETT is a Shareholder 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 efforts under the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), the Clean Air Act (CAA), and other related federal statutes. She has worked on a number of utility matters, and her experience includes working with renewable resource developers with siting issues on public, tribal, state, and local land. Her work also includes representing wind and solar projects, focusing on state and federal environmental law, permitting, due diligence, and opinion letters. Deana has represented lenders and borrowers in a number of renewable energy projects in New Mexico. Prior to joining Modrall Sperling, Deana served as a judicial law clerk for the Honorable Richard Bosson of the New Mexico Supreme Court. Deana is recognized in Native American Law at the state and national levels by Chambers USA. She is also recognized by Best Lawyers in America® for her work in Energy Law and Native American Law, and by Southwest Super Lawyers®.
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I. INTRODUCTION
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") continues to be difficult for project proponents and agencies alike, and has been a target for environmental organizations and others challenging NEPA decisions. Courts, agencies, project proponents, and opponents must grapple not just with the uncertainties surrounding climate change analysis generally, but also inconsistent standards and (un)accepted methodologies. Administration change also creates complexity and potential uncertainties. For example, President Trump targeted many of the Obama Administration's climate change initiatives.3 President Biden, and his administration, have sought to turn back the clock to those Obama-era initiatives, and has withdrawn or set aside approximately 60-70 Trump-era initiatives.4
Like the Cha Cha Slide, Part II of this paper begins with the "basic steps," i.e., a brief overview of NEPA and a short discussion of the NEPA regulations of primary relevance to a climate change analysis and the current status of those regulations. Part III of this paper discusses the recent Administrations' slides to the left and right regarding climate change. Specifically, Part III outlines certain Obama Administration efforts that the Trump Administration disavowed, but that the Biden Administration is reinvigorating.5 Part IV, the "crisscross," summarizes recent federal case law discussing NEPA and climate change.
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II. THE BASIC STEPS: AN OVERVIEW OF NEPA AND CEQ REVISIONS TO NEPA REGULATIONS
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....6
The Council on Environmental Quality ("CEQ") was established by Congress when it enacted NEPA and is within the Executive Office of the President.7 CEQ issues NEPA's implementing regulations and reviews and approves other federal agencies' NEPA procedures.8
B. 2020 NEPA Regulation Overhaul
In July 2020, CEQ overhauled its NEPA regulations and issued a new final rule (the "Rule").9 According to CEQ, the Rule "comprehensively updates, modernizes, and clarifies the regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies...."10 A discussion of all changes to the NEPA regulations is beyond the scope of this paper, but those revisions relating to "effects" and "impacts" are discussed herein given the recognition that climate change impacts have been analyzed under the impact/effect rubric.
The Rule defines "effects or impacts" as:
changes to the human environment from the proposed action or alternatives that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives, including those effects that occur at the same time and place as the proposed action or alternatives and may include effects that are later in time or farther removed in distance from the proposed action or alternatives.11
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The Rule states that "a 'but for' causal relationship is insufficient to make an agency responsible for a particular effect under NEPA" and that "[effects do not include those effects that the agency has no ability to prevent due to its limited statutory authority or would occur regardless of the proposed action."12 The Rule specifically repeals the definition of "cumulative impact" in the prior regulations.13
The Rule became effective September 14, 2020. Before its effective date, though, several lawsuits were filed challenging the Rule and seeking to enjoin it.14 Those cases have since been stayed or dismissed. On his first day in office, President Biden directed CEQ to review the new NEPA regulations, and on October 7, 2021, CEQ published a notice of a phased approach proposing to reverse certain provisions of the Rule.15 The first phase "would generally restore three key regulatory provisions that were in effect for decades before being modified for the first time in 2020," namely, as is relevant here: "[A]gencies must consider the 'direct,' 'indirect,' and 'cumulative' impacts of a proposed decision, including by evaluating a full range of climate change impacts...."16 Simply put, the future of the NEPA regulations are uncertain.
That uncertainty, however, is not reflected in the case law discussed herein, given that the agency decisions being reviewed were undertaken prior to the effective dates of the new NEPA regulations or because certain of the regulations did not have major changes.17
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For purposes of this paper, then, the relevant CEQ regulations are the pre-July 2020 regulations, which required an agency to disclose the direct, indirect, and cumulative effects of a proposed project in the NEPA document. CEQ's prior regulations defined direct effects as those which were "caused by the action and occur at the same time and place."18 Indirect effects were defined as those which were "caused by the action and [were] later in time or farther removed in distance, but [were] still reasonably foreseeable."19 "Cumulative impact" was defined as:
the impact on the environment which result[ed] 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 undert[ook] such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.20
GHG emissions, and their impacts on climate change, could be considered a direct, indirect, or cumulative effect of a federal agency action. One court 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."21 In a more recent decision, a court noted: "[L]arge-scale nature of environmental issues like climate change show why cumulative impacts analysis proves vital to the overall NEPA analysis."22 The emphasis on cumulative impacts as the primary vehicle for analyzing GHGs is reflected in the case law discussed in Section IV infra, although certain cases have found an agency's indirect effects analysis invalid under NEPA.
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III. THE CLIMATE CHANGE CHA-CHA SLIDE
A. Slide to the Left: Obama Administration Initiatives
This paper addresses two Obama-era initiatives directly relevant to NEPA analyses of GHG emissions and climate change—the Social Cost of Carbon Protocol ("SCC Protocol")23 and CEQ's GHG Guidance. These two initiatives have each inspired the footwork of both succeeding presidential administrations regarding NEPA policy.
1. The SCC Protocol's Debut
In 2009, the Interagency Working Group on the Social Cost of Carbon ("IWG")24 was convened by the Office of Management and Budget ("OMB") and the Council of Economic Advisors.25 Four other offices from the Executive Office and six federal agencies participated in the IWG.26 CEQ, the Department of Agriculture, and the Environmental Protection Agency27 participated in the IWG28 ; however, the Department of the Interior did not initially participate.
In February 2010, the IWG developed a "Technical Support Document"29 called the "Social Cost of Carbon for Regulatory Impact Analysis-Under Executive Order 12866" ("2010 TSD").30 According to the 2010 TSD, the purpose of the SCC analysis was to allow agencies to "incorporate the social benefits of reducing carbon dioxide emissions into cost-benefit analyses of regulatory action."31 To that end, the SCC is "an estimate of the monetized damages associated with an incremental increase in carbon emissions in a given year."32 The SCC was intended to monetize "changes in net agricultural productivity, human health, property damages from
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increased flood risk, and the value of ecosystem services due to climate change."33 The 2010 TSD calculated four SCC estimates for the years 2010 to 2050, in five year increments. For 2010, the TSD's estimates were: $5, $21, $35, and $65 per metric ton of CO2 emissions, in 2007 dollars.34 The 2010 TSD's estimate cost per metric ton of CO2 emissions for 2020 were: $7, $26, $42, and $81.35 The 2010 TSD has been updated several times since 2010 consistent with its authors' intent that it not be...
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