Chapter 13 The Reach of Indirect and Cumulative Effects - Climate Change and Beyond
| Jurisdiction | United States |
SARAH BORDELON helps clients to obtain environmental permits for natural resource and development projects and defends the permits for those projects in state and federal court and administrative tribunals when challenged. She has extensive experience evaluating the overall permitting approach for a project and developing litigation strategy to defend all aspects of the approval. Sarah has counseled clients nationwide, including onshore and offshore oil and gas, mining, renewable energy, and infrastructure projects. She also litigates environmental and natural resource matters, participates in proposed state and federal rulemakings, advises clients on environmental compliance and enforcement matters, and conducts environmental due diligence on conventional and renewable energy projects.
TINA R. VAN BOCKERN is Of Counsel in Holland & Hart LLP's Denver office. She is a member of the firm's Energy, Environment, and Natural Resources practice group, specializing in administrative and civil appeals. She guides clients through the appeals process by developing strategies to build and preserve the record and continuing through briefing and oral argument. Drawing on years of experience representing oil and gas and mining clients on all aspects of project development and environmental compliance, Tina regularly litigates and appeals agency regulations, decisions, and orders affecting these industries. Tina has represented clients in a wide array of matters involving National Environmental Policy Act, the Clean Air Act, public land use and development, oil and gas and mining law, environmental law, royalties, class actions, Indian law, and administrative law and procedure.
I. INTRODUCTION
By now, we all know that indirect and cumulative impacts, including climate change and environmental justice impacts, are a hot topic in National Environmental Policy Act ("NEPA") reviews, litigation, and policy. As the available guidance from agencies and judicial decisions continue to evolve and expand the scope of the indirect and cumulative impacts analysis required to satisfy NEPA, project proponents, opponents, and decision-makers are likely wondering: "where do we draw the line?" In other words, how far removed from the proposed project should impacts be assessed to satisfy NEPA? And which impacts, in particular, need to be assessed: climate change and environmental justice or much more?
This paper aims to answer these questions, to the extent clear answers are available. We'll pick up where Deana M. Bennett left off in her recent paper, NEPA and Climate Change: The Climate Change "Cha-Cha Slide," which provides a comprehensive overview of the recent Administrations' policies on climate change analyses in NEPA reviews, as well as federal case law discussing NEPA and climate change.1
Part II of this paper begins with a refresher on NEPA's basic requirements for considering indirect and cumulative impacts, followed by a discussion of the recent guidance on analyzing indirect and cumulative impacts published by the Council on Environmental Quality ("CEQ") and the Environmental Protection Agency ("EPA"). Part III considers the question of how far downstream indirect and cumulative impacts could or should be traced to satisfy NEPA. Part IV highlights the most recent judicial decisions. Lastly, Part V explores how indirect and cumulative impacts analyses are being demanded (and sometimes performed) in programmatic NEPA reviews for both onshore and offshore oil and gas development projects.
II. NEPA'S REQUIREMENTS FOR ANALYZING INDIRECT AND CUMULATIVE IMPACTS
A. NEPA's Purpose
NEPA is a procedural statute that was enacted to, among other things, "declare a national policy which will encourage productive and enjoyable harmony between man and his environment" and to "promote efforts which will prevent or eliminate damage to the environment[.]"2 NEPA has twin aims. First, it "places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action."3 By doing so, it ensures that the agency will have available, and will carefully consider, detailed information concerning environmental impacts.4 Second, NEPA requires an agency to "inform
[13-1]
the public that it has indeed considered environmental concerns in its decisionmaking process," and provide meaningful opportunities for the public to participate in that process.5
Congress in enacting NEPA, however, did not require agencies to elevate environmental concerns over other appropriate considerations.6 As a result, NEPA itself does not mandate particular results, but simply prescribes the necessary process.7 NEPA requires only that the agency take a "hard look" at the environmental consequences before taking a major federal action.8
B. CEQ's Newest Regulations
In 2020, the CEQ overhauled its NEPA regulations that govern all federal agencies' and decisionmakers' NEPA analyses and processes.9 Those regulations10 went into effect on September 14, 2020.11 In October 2021, however, CEQ issued a notice of proposed rulemaking indicating modifications to the regulations would be published through a phased approach.12 Consistent with the notice, on April 20, 2022, CEQ published a final rule to amend three discrete aspects of the 2020 NEPA regulations, including, as relevant here, the definition of "effects."13 CEQ explained that it was revising the definition of "effects" or "impacts" in 40 C.F.R. § 1508.1(g) "to restore the substance of the definitions of 'effects' and 'cumulative impacts' contained in the 1978 regulations."14
[13-2]
"Effects" or "Impacts" are now defined as:
[C]hanges to the human environment from the proposed action or alternatives that are reasonably foreseeable and include the following:
(1) Direct effects, which are caused by the action and occur at the same time and place.
(2) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.
(3) Cumulative effects, which are effects on the environment that result from the incremental effects of the action when added to the effects of other past, present, and reasonably foreseeable actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative effects can result from individually minor but collectively significant actions taking place over a period of time.
(4) Effects include ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effects will be beneficial.15
C. Judicial Guidance
Because the 2022 definition of "effects" or "impacts" is technically newly adopted—despite resembling the 1978 regulations—litigation challenging federal actions approved under the 2022 regulations is just now making its way before the courts. Therefore, there is little judicial precedent weighing in on the adequacy of analyses under the "new" definition.16 But,
[13-3]
because CEQ's 2022 regulatory revisions "generally restore provisions that were in effect for decades before being modified in 2020,"17 prior judicial precedent is still instructive.
Importantly, the current definition added the requirement that "effects" or "impacts" be "reasonably foreseeable" because the CEQ "agree[d] that this clause enhances clarity in line with longstanding agency practice and NEPA case law."18 Case law instructs that "effects" are only considered "reasonably foreseeable" if they are "sufficiently likely to occur that a person of ordinary prudence would take [them] into account in reaching a decision."19 By requiring that an agency focus on "reasonably foreseeable" impacts, the goal is to "generate information and discussion on those consequences of greatest concern to the public and of greatest relevance to the agency's decision, rather than distorting the decisionmaking process by overemphasizing highly speculative harms."20
D. Agency Guidance
Not surprising, the policies and documents guiding agencies' NEPA reviews change depending on the Administration.21 Beginning with President Obama's establishment of the Interagency Working Group ("IWG") on the Social Cost of Carbon ('SCC") metric in 2009, and the IWG's publication of the Technical Support Document called the "Social Cost of Carbon for Regulatory Impact Analysis-Under Executive Order 12866" ("2010 TSD"),22 agencies, the public, and courts have debated the helpfulness of evaluating the indirect and cumulative impacts of a proposed project by using the SCC metric, a methodology for monetizing the costs of greenhouse gas emissions ("GHG") and related climate change impacts.
The CEQ definitively weighed in for the first time in 2016, when it published its "Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews." ("2016 GHG Guidance").23 The 2016 GHG Guidance explained that "NEPA does not require monetizing costs and benefits" of a proposed action.24 Instead, consistent with the regulations' requirements, NEPA provides that "the weighing of the merits and drawbacks of the various alternatives need not be displayed using a monetary cost-benefit analysis and should not be when
[13-...
To continue reading
Request your trial