CLIMATE CHANGE AND THE NATIONAL ENVIRONMENTAL POLICY ACT

• Jurisdiction: United States

NEPA and Federal Land Development
(Feb 2006)
CHAPTER 12A
CLIMATE CHANGE AND THE NATIONAL ENVIRONMENTAL POLICY ACT
Frederick R. Anderson
Geraldine E. Edens
McKenna Long & Aldridge LLP
Washington, D.C.

FREDERICK R. ANDERSON

Frederick R. Anderson works with major federal departments and executive offices such as the Office of Management and Budget, the Council of Economic Advisers, the President's Council on Environmental Quality, and the President's Science Adviser. He plays a prominent role in law-science issues, serving as a member of the executive committee of the National Academy of Science's standing Panel on Science, Technology & Law. He has served on Academy committees involving industry competitiveness and environmental protection, high-level nuclear waste disposal, public land management, hazardous waste disposal, and federal data quality. Mr. Anderson is Chairman of the Board of the Center for International Environmental Law. He was the chairman of the American Bar Association's Commission on Inter-American Affairs. He led a special ABA mission to Chile in 1988. As chairman of the ABA's Standing Committee on Environmental Law, he played a key role in organizing international conferences in Europe and Canada on acid rain, and in Mexico City on environmental issues. He was former dean of the law school at American University, and the first full-time President of the Environmental Law Institute. He served on a twelve-member congressional study commission created by the Superfund legislation to examine toxic tort recovery for injury from hazardous substances. Mr. Anderson was Chairman of The Advisory Working Group on Environmental Sanctions for the U.S. Sentencing Commission. He has been both a member of and a consultant to the Administrative Conference of the U.S. His analysis of the Superfund program resulted in the adoption by the Administrative Conference of a policy favoring a negotiated solutions to disputes about waste site cleanups. Education: J.D., Harvard University, 1968; B.A., Oxford University, 1965; B.A., University of North Carolina, summa cum laude, 1963. Bar Admissions: The District of Columbia Bar; U.S. Court of Appeals, District of Columbia Circuit; U.S. Supreme Court; U.S. District Court, District of Columbia; U.S. Court of Appeals, Ninth Circuit; U.S. Court of Appeals, Third Circuit. Professional Affiliations: National Academy of Sciences, Panel on Science, Technology and Law (Member of Executive Committee); Center for International Environmental Law (Board Chairman); National Academy of Sciences, Board of Atmospheric Sciences & Climate (Member).

GERALDINE E. EDENS

Geraldine E. Edens practices in areas involving environmental litigation, regulatory matters and issues regarding law and science. She has a broad base of litigation experience, including serving as lead litigation counsel in two constitutional challenges (preemption by the CAA) to New York and California laws banning the use of MTBE in gasoline; a complex NEPA challenge to a large scale commercial development adjacent to the South Rim of the Grand Canyon National Park; a challenge to the authority of the Department of Transportation to ban the transport of MTBE in an interstate pipeline; a NEPA challenge to an interstate pipeline right-of-way approval; and a case preventing the disclosure by a federal agency of confidential business documents under the Freedom of Information Act. Other environmental litigation experience includes Superfund contribution actions; a Clean Water Act contaminated sediments enforcement case, and bringing and defending environmental claims in bankruptcy, including being a member of the trial team in In re: National Gypsum Co., the first ever bankruptcy estimation of remedy costs under Superfund. In addition to these specific environmental litigation matters, Ms. Edens has extensive experience in counseling clients on potential litigation matters under NEPA, CERCLA, the Clean Air Act, the Clean Water Act and the Endangered Species Act. Ms. Edens graduated from the University of Miami School of Law, magna cum laude and Order of the Coif (1991), where she was a member of the University of Miami Law Review. She has a Ph.D in Education from the University of Florida (1983) and a Master (1980) and Bachelor (1973) of Science from the University of Miami. Prior to her law firm experience, Ms. Edens was a professor at the University of Miami where she was a member of the graduate school faculty. Bar Admissions: The District of Columbia Bar; Maryland; U.S. Courts of Appeals for the Fourth and Ninth Circuits. Professional Affiliations: The District of Columbia Bar and American Bar Association.

This article first appeared in 41 Rocky Mtn. Mineral L. Fdn J. 265-278 (2004), and is reprinted by permission of the Foundation and the authors.

For several years, the domestic climate policy debate has focused principally on whether the US would agree to implement the Kyoto Protocol and secondarily on congressional proposals for multi-pollutant legislation that would include regulation of carbon dioxide emissions. Having lost momentum on both of these, proponents have now turned to state legislation, litigation in federal courts, and corporate governance strategies which seek to compel companies to reduce (or at least disclose) carbon emissions or to convince officers and boards they must undertake global warming emissions reductions as a matter of corporate policy.

This article is about litigation that combines elements of these strategies, but with a significant new twist -- using the National Environmental Policy Act (NEPA) to bring climate considerations into federal project approval and funding decisions. This litigation strategy is long-term and indirect. It cannot force specific warming emissions reductions to be made. But proponents reason that because NEPA requires a detailed federal environmental impact statement (EIS) on the potential climate impacts of federal actions, they can raise public concern about climate through publicity and debate, cause agencies to hire climate experts, create a record of federal documentation of potential climate impacts, deter agencies and companies from projects with potentially large climate impacts, change the criteria federal agencies use to approve energy and agriculture-related projects, and possibly cause agencies to deny approval or funding because of NEPA disclosures.

I. Climate Cases and NEPA

The use of NEPA to address climate change has barely begun. Still, court decisions and cases pending decision, and the cases which climate advocates have said they plan to file, already show the contours of the new "campaign."

A. Two Decisions: Harbingers of Things to Come?

If two cases are followed, courts may soon require that climate change analysis for proposed projects be included in NEPA environmental impact statements (EISes) and environmental assessments (EAs). Previous cases that focused on standing to sue under NEPA addressed what could have been a potentially fatal blow to climate advocates' efforts to have climate included in NEPA analyses.¹ Although the critical threshold issue of standing

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is far from resolved for climate cases, in the first round of the battle plaintiffs appear to have prevailed. Courts appear to agree that the potential climate impacts of federal activities may be both causally related and potentially injurious to members of climate advocacy organizations sufficient to confer standing to sue.

Mid States Coalition for Progress v. Surface Transportation Board.² In the first of the cases, the federal Eighth Circuit vacated the Surface Transportation Board's approval of a proposed railroad that would transport coal from Wyoming to Minnesota because the EIS failed to include any analysis of the potential effects of increased carbon dioxide (C02) emissions that would come from increased coal consumption. The Sierra Club argued that the railroad would both increase the supply and lower the cost of coal burned in Minnesota power plants, which in turn would lead to increased C02 emissions. Rejecting arguments that global warming emissions impacts were too speculative, the court held that climate impacts should have been discussed in the EIS in accordance with Council on Environmental Quality (CEQ) regulations that require an EIS to analyze indirect effects that are reasonably foreseeable.³

Border Power Plant Working Group v. Department of Energy.⁴ Similarly, in the second case, a federal district court held that the Department of Energy and the Bureau of Land Management violated NEPA by failing to include in an expedited EA any analysis of the potential impacts of greenhouse gas emissions that would result from new transmission lines that would be built to connect two new power plants in Mexico to an electricity grid in California.⁵ Noting that C02 is not regulated by the Clean Air Act as a criteria pollutant, the court nevertheless found that natural-gas-powered turbines would emit C02, which could have potential global warming impacts.

Hence, both a federal appeals court and a federal district court have held that NEPA documentation cannot simply neglect to discuss potential global warming impacts of federally approved energy projects, although as project proponents in these cases argued, the potential global atmospheric impacts of the projects were so remote and speculative that they could not be meaningfully discussed. Based on these cases, it appears that non-profit environmental organizations and local governments have decided that their failure to contest agencies' climate analyses, represent missed opportunities. The Mid States Coalition...