CHAPTER 3 WHEN AND HOW TO ANALYZE CLIMATE CHANGE UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT

• Jurisdiction: United States

National Environmental Policy Act
(Oct 2010)
CHAPTER 3
WHEN AND HOW TO ANALYZE CLIMATE CHANGE UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT
Sarah Krakoff ^*
Stuart C. Gillespie ^**
University of Colorado
Law School
Boulder, Colorado

SARAH KRAKOFF is Associate Dean for Research and a Professor of Law at the University of Colorado Law School. She teaches and is widely published in the areas of American Indian law and natural resources law. Her article examining the effects of federal law on the Navajo Nation's exercise of sovereignty, A Narrative of Sovereignty: Illuminating the Paradox of the Domestic Dependent Nation, received the Jules Millstein Faculty Writing Award at the University of Colorado Law School in 2006 and has been cited in several federal district court opinions. Professor Krakoff has also written about environmental ethics, public lands, and global warming. Her current projects include a new American Indian law casebook (co-authored by Bob Anderson, Bethany Berger and Phil Frickey) and a book (currently titled "Parenting the Planet,") about the different stages of the human relationship to nature. When Professor Krakoff first came to the Law School, she was the Director of the American Indian Law Clinic, supervising students in a range of federal Indian and tribal law matters. She succeeded in securing permanent University funding for the Clinic before moving to non-clinical teaching in 1999. Before coming to Colorado, Professor Krakoff was awarded an Equal Justice Works Fellowship to work on the Navajo Nation as Director of the Youth Law Project for DNA-People's Legal Services. Professor Krakoff clerked on the Ninth Circuit Court of Appeals for Judge Warren J. Ferguson from 1992-93, and received her J.D. from Boalt Hall, U.C. Berkeley, in 1991 and her B.A. from Yale University in 1986. She lives in Boulder with her husband John Carlson and their daughter Lucy.

Introduction

On February 18, 2010 the Council on Environmental Quality ("CEQ") released its "Draft NEPA Guidance On Consideration of The Effects of Climate Change and Greenhouse Gas Emissions."¹ The Draft Guidance aims to ensure that agencies identify proposed actions that might increase greenhouse gas (GHG) emissions or compound effects from climate change, and provides some initial advice for analyzing both. As a spur to agencies, the Draft Guidance is a step in the right direction. It clarifies that agencies cannot rely on the excuse that climate change is a global collective action problem in order to avoid analyzing local GHG emissions and climate effects. Yet integrating climate change into NEPA analysis is a complex task that has challenged agencies, litigants, and courts alike. Not surprisingly, the Draft Guidance does not resolve all of the uncertainties. To provide additional direction on various open questions, this paper supplements the Draft Guidance with analysis of recent NEPA case law and relevant agency regulations.

The Draft Guidance itself focuses on two main issues at the intersection of climate change and NEPA analysis. First, when is it appropriate for an agency to quantify and evaluate the amount of GHG emissions generated by a proposed action? Second, when is it appropriate for an agency to consider the effects of climate change in its environmental analysis of a proposed action? This paper addresses these questions in turn. With respect to the first, there is no bright-line rule for when an agency must quantify and evaluate the GHG emissions from a proposed action. NEPA itself requires analysis of a proposed action's impacts on air quality, but does not otherwise provide guidance concerning GHG emissions.² Courts that have considered the issue vary concerning what triggers an obligation to quantify GHG emissions in NEPA documents.³

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The Draft Guidance approaches this issue by providing agencies and practitioners with what might appear to be a trigger: If the proposed action emits GHG emissions in excess of 25,000 metric tons per year ("tpy"), the NEPA document should quantify the amount of GHG emissions and qualitatively discuss the environmental effects of those emissions.⁴ At the same time, the Draft Guidance stresses that this 25,000 tpy indicator is not a minimum threshold. Instead, the Draft Guidance emphasizes that an agency has broad discretion to provide or omit an analysis of GHG emissions under NEPA's "rule of reason."⁵ Part I of the paper contextualizes the Draft Guidance and aims to clarify further when agencies should include an analysis of GHG emissions versus when the agency has discretion to omit such an analysis.

With respect to the second question, the Draft Guidance states that a NEPA environmental analysis should consider the reasonably foreseeable effects of climate change on a proposed action. Climate change is already affecting the environment and is anticipated to have additional effects in the future. For example, rising temperatures have already caused noticeable changes in the timing of the snowmelt in the western United States.⁶ An industrial process that requires significant quantities of water could therefore be significantly affected by dwindling water supplies in the West. Accordingly, the Draft Guidance states "[c]limate change effects should be considered in the analysis of projects that are designed for long-term utility and located in areas that are considered vulnerable to specific effects of climate change within the project's timeframe."⁷ Part II of the Paper takes a closer look at the relevant effects of climate change and how they should be analyzed in a NEPA document.

We rely primarily on the Draft Guidance itself, relevant NEPA regulations, and federal case law addressing NEPA challenges to proposed agency actions based on failure to consider climate change. When useful, we also refer to interpretations of the California Environmental Quality Act ("CEQA"), which has recently incorporated

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climate change analysis into its environmental assessment procedures.⁸ While the CEQA Guidelines are not controlling at the federal level, they provide a more complete framework for integrating climate change into an environmental analysis.

We conclude with a brief discussion about the future of NEPA and climate change. The CEQ's guidance is currently in draft form and subject to revisions. We therefore highlight three areas where CEQ could provide more clarity and guidance. This discussion provides a summary of the main challenges associated with integrating climate change into NEPA documents.

I. Analyzing the Effects of a Proposed Action on Climate Change

The first section of the Draft Guidance tackles the issue of when it is "appropriate for the agency to quantify and disclose its estimate of the expected annual direct and indirect GHG emissions in the environmental documentation for the proposed action."⁹ The answer involves a two-step process. First, the agency must make a threshold determination that it is appropriate to analyze GHG emissions.¹⁰ Then, the agency must resolve the issue of how to analyze and quantify GHG emissions in a NEPA document.¹¹

A. When An Agency Should Provide an Analysis of Climate Change

The Draft Guidance provides two standards for determining whether an agency should analyze the GHG emissions from a proposed action in a NEPA document. First, CEQ proposes that:

[I]f a proposed action would be reasonably anticipated to cause direct emissions of 25,000 metric tons or more of CO2-equivalent GHG emissions on an annual basis, agencies should consider this an indicator that a quantitative and qualitative assessment may be meaningful to decision makers and the public.¹²

Alternatively, CEQ proposes that if a project is "anticipated to emit GHGs to the atmosphere in quantities that the agency finds may be meaningful,"¹³ the NEPA analysis should similarly quantify and disclose GHG emissions.

Before discussing these two standards further, it is important to highlight what the Guidance addresses and what it fails to address. On the affirmative side, the Guidance clarifies that the threshold determination of whether to analyze GHG emissions is now an

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important and necessary step in the NEPA review process. Previously, the CEQ had not taken a stance on whether agencies should analyze GHG emissions. The Draft Guidance, at the very least, clarifies that NEPA encompasses consideration of GHG emissions. Yet, on the negative side, the Guidance does not provide direction concerning how to determine whether GHG emissions have "significant" effects on the environment and therefore trigger NEPA's requirement to undertake a full-blown EIS.¹⁴ Rather the Draft Guidance is directed at the threshold determination of whether emissions warrant consideration, leaving to the agencies the difficult task of sorting out when that initial determination might ripen into a finding of significant effects. (Section I.B.iii, below, supplements the Draft Guidance and provides the reader with some insights into the determination of significance for GHG emissions.)

i. Direct Emissions of 25,000 Metric Tons of CO2 per Year

The Draft Guidance attempts to provide agencies and practitioners with a quantitative standard - namely the proposed 25,000 tpy indicator. It states that 25,000 tpy is "an indicator of a minimum level of GHG emissions that may warrant some description in the appropriate NEPA analysis for agency actions involving direct emissions of GHGs."¹⁵ Accordingly, where the proposed action is subject to GHG emission accounting requirements because emissions exceed 25,000 tpy, practitioners should expect the NEPA documents to quantify and evaluate those GHG emissions.

Practitioners and agencies should not rely exclusively on the 25,000 tpy indicator, however, to determine whether the NEPA documents should include an analysis of GHG emissions. CEQ is careful to note that this suggested indicator is not "an absolute...